Enlargement in perspective

(1)

Enlargement in perspective

Helene Sjursen (ed.)

Centre for European Studies University of Oslo P.O.Box 1143, Blindern N-0317 Oslo, Norway Tel: + 47 22 85 76 77 Fax: + 47 22 85 78 32 E-mail: [email protected] http://www.arena.uio.no Oslo, January 2005

(2)

(3)

Preface

On 7-8 May 2004, the CIDEL consortium organised a workshop in Ávila, Spain, on ‘Justifying Enlargement – Past and Present Experiences’. CIDEL - Citizenship and Democratic Legitimacy in the EU – is a 3-years (2003-2005) joint research project with ten partners in six European countries.

The project is coordinated by ARENA, University of Oslo, and is supported by the European Commission’s Fifth Framework Programme for Research, Key Action ‘Improving the Socio-Economic Knowledge Base’.

The workshop in Ávila, which is under Workpackage 4,

is deliverable no. 12 from the project. The present report is based on the workshop.

Erik Oddvar Eriksen Scientific Responsible CIDEL project

(4)

(5)

Enlargement in perspective

Helene Sjursen

ARENA, University of Oslo

As recognised by the Laeken European Council, the European Union stands at a crossroads. The gradual strengthening of common European institutions and the inclusion of new policy areas such as social policy, security policy, justice and home affairs issues in the joint responsibility of the EU and its member states are indicators of the political nature of integration in Europe. At the same time this political nature of European integration points to the need for a clearer conception of what the EU is or should be. There is considerable uncertainty as to what type of entity the EU will become, as to what kind of order is emerging in Europe.

Often, answers to these questions about the nature and characteristics of the future European order are sought by analysing the building and reforming of the EU’s institutions, rules and procedures for decision-making. However, when it comes to identifying the nature of the EU it is not sufficient to look at its emerging governance structures and its basic, overarching institutional features. We must also look more closely at developments in particular policy fields. Different actors have different interests, visions and values that they wish to project onto the European level, different ideas about what the EU ought to be about. The importance and relevance of these different interests, values and visions might become more visible through analyses of the actual policies produced by the EU. Often, it is here, in the processes of determining what should be done with regard to concrete issues, that the fundamental features of the EU are actually defined. Thus, analysing the principal reasons for particular policy-decisions might contribute to a better

(8)

understanding of what kind of order is emerging in Europe. However, even more so the question of EU enlargement should be a key issue in terms of understanding the fundamental characteristics of the European Union. Surprisingly, although enlargement has been a fundamental feature of the EU since its early days, few systematic studies of its significance for European integration have been produced. Rather, enlargements have been seen as isolated episodes, which do not tell us much about the EU as such. It is quite clear, however, that the issue of membership and how it is dealt with is at the core of any organisation – including the EU. In order for an organisation to find criteria for inclusion (as well as exclusion) one would expect it to have, or to be forced to form, an idea of what its fundamental purposes are. Even though answers to such questions are perhaps unlikely to have been produced in advance, one might reasonably expect that they are at least indirectly or partly confronted through the practice of enlargement. Consequently, a thorough and systematic investigation of how the EU has handled this question (across time, across different countries or regions and with regard to different policy areas) should provide valuable insights into the EU’s self-understanding, goals and priorities. In fact, it would seem that without looking at this issue, it would be difficult to get a clear picture of what kind of order is emerging in Europe. For example, deciding where Europe stops, or should stop, is a particular challenge. It inevitably raises questions such as who the Europeans are and what kind of values characterise Europe. Furthermore, the more functional questions such as on what conditions new members should be allowed entry should also provide valuable insights. Several possibilities arise in regard to the question of what kind of order is emerging in Europe. Following the CIDEL project,1 three ideal-types can be identified (Eriksen and Fossum 2004). Firstly, the EU might be on its way to be reduced to a mere problem solving entity based on economic citizenship. Here, membership would be derived from its discernible benefits and the purpose of the organisation would be to promote the material interests of the member states. Secondly, the EU might be moving towards a value-based community premised on social and cultural citizenship. From such a perspective the EU would be a geographically delimited entity seeking to revitalise traditions, mores and memories of whatever common European values and affiliations there are in order to forge a we-feeling as a basis for integration. A third possibility would be that the EU is moving towards a

1

CIDEL – Citizenship and Democratic Legitimacy in the European Union is a research project

financed by the European Commission’s Fifth Framework Programme for Research. The project involves ten partners from six different countries. For more details see: http://www.arena.uio.no/cidel

(9)

rights-based post-national union based on a full-fledged political citizenship. Public support would here have as its motivation a constitutional patriotism, which emanates from a set of legally entrenched fundamental rights and democratic procedures that are deeply entrenched in the “collective psyche” of Europeans and in the institutional framework of the European Union. Consistent with the principal hypothesis of the CIDEL project, the various contributions to this report discuss to what extent enlargement speaks to the image of the EU as a rights-based post-national union. In order to examine this, one might ask, firstly, why has the EU systematically decided in favour of enlargement? Given the costs and risks of enlargement, why has the European Union not simply chosen to remain as it is? And why have not individual member states, in particular those that expect to pay the highest price for enlargement, used their power to veto this process? The question is particularly relevant with regard to the last of the EU’s enlargements, agreed upon in principle at the European Council’s summit in Copenhagen in June 1993 and confirmed with the entry of ten new member states in the European Union in May 2004. If we consider that the EU is chiefly, as the first ideal type of the EU suggests, becoming a problem solving entity, where membership is derived from its discernable benefits to the member states, we would, at least at first sight, expect a veto from some of the member states. However, no member state vetoed the process. Although this would seem to weaken the hypothesis that the EU is mainly a problem solving entity, detailed analyses are required in order to investigate the extent to which this means that enlargement speaks to the second or the third ideal type of the EU.

Furthermore, the question is not only that of the basis on which the EU decides to enlarge; equally important is how and in what way the decision to enlarge is implemented. How are the norms and rules of the European Union applied in the accession process? To what extent are they applied in a consistent and similar manner in all applicant states? Comparisons should be useful here in order to determine to what extent applicants receive equal treatment and to what extent there have been prioritisations of specific applicants or groups of applicants. This would tell us something about the conception of the EU that lies behind the enlargement process. Should the emphasis on the political criteria be lesser with regard to certain applicant states than others, for example, this might weaken the argument that the EU is developing towards a rights based post-national union. Finally, the extent to which the principled decisions on EU enlargement are actually implemented is also an indicator of the extent to which democratic principles

(10)

and human rights are constitutive of the EU’s identity or merely “cheap talk”. These questions constitute a second focus in this report.

Analytical approach

A lively debate has developed within the academic community, in particular about the role and importance of norms in understanding the process of enlargement. It is generally accepted in the emerging literature on this question that norms must have played a part in the decision to enlarge (Schimmelfennig and Sedelmeier 2002; Sjursen 2002; Torreblanca 2001; Schimmelfennig 2001; Sedelmeier 2000; Fierke and Wiener 1999). However, to emphasise the role of norms is only the beginning. There are numerous rule-sets, norms and identities. Hence key questions are what kind of norms have been important as well as how EU norms have been applied in the accession process. A further core question is that of the mechanisms through which norms are complied with. Is norm compliance ensured through the mechanism of self-interested calculations? In other words are norms only used instrumentally, and thus functioning simply as constraints on actors’ (self-interested) behaviour? Or do norms constitute the world views and preferences of actors? On which of these bases should we understand enlargement?

In order to investigate these questions an analytical distinction may be made between three different types or categories of arguments that might be used to justify enlargement: pragmatic arguments, ethical-political arguments and moral arguments (Habermas 1993).2

Each of these speaks to one of the images of the EU outlined above. In a pragmatic approach policy would be justified with reference to the output that it is expected to produce. This means that one would not expect actors to support enlargement unless arguments could be found to support the idea that it would provide utility given their interests and preferences. In an ethical-political approach justification would rely on a particular conception of the collective ‘us’ and a particular idea of the values represented by a specific community. Here, one would seek to justify enlargement by referring to duties and responsibilities emerging as a result of belonging to a particular community. In a moral approach the aim would not be to justify policy with reference to calculations of utility nor with reference to the values of a particular community but to find justifications that rely on universal standards of justice, regardless of the utility of the policy to the particular actors involved in the decision or the specific values or perceptions of the ‘good life’ embedded in the community outlining policy.

2

For other attempts to employ Habermas’ theory of communicative action to international relations see: Eriksen and Fossum 2000; Risse 2000; Müller 2001; and Lose 2001.

(11)

Hence, the first type of argument has much in common with the concept of logic of consequence and the second and third type of arguments are related to the concept of logic of appropriateness, although they should obviously not be conflated (March and Olsen 1989, 1998). Both concepts are developed in new institutionalist theory and have more recently been adopted in the international relations literature.3

The logic of appropriateness does however have a certain ambiguity to it that is not resolved in the way it is employed in the current international relations literature in general and in the sociological-institutionalist literature on enlargement in particular (Sedelmeier 2000; Schimmelfennig 2001). To put it simply, the logic of appropriateness could imply both rule following as a result of habit or a particular identity and rule following based on a rational assessment of morally valid arguments (Eriksen 1999).4

Hence, it would not be sufficient in terms of investigating whether or not the EU is moving in the direction of the second or the third of the images outlined earlier.

Different criteria identify the various types of arguments: utility, values and rights (Sjursen 2002). Utility refers to an effort to find efficient solutions to concrete problems or dilemmas. Policymakers seek legitimisation by achieving an output that could be seen as beneficial to given interests and preferences. Values refer to a particular idea of the ‘good life’ that is grounded in the identity of a specific community. Policy would be legitimised through reference to what is considered appropriate given a particular group’s conception of itself and of what it represents. Rights refer to a set of principles that are mutually recognised. In other words, policy would be legitimised with reference to principles that, all things considered, can be recognised as ‘just’ by all parties, irrespective of their particular interests, perceptions of the ‘good life’ or cultural identity.

A focus on arguments and reasons will only make sense if we can from the outset be reasonably certain that actors have not been forced – through economic or military means – to make a particular decision. This seems a safe assumption in the case of the European Union’s enlargement process. Perhaps more contentious is the assumption that individual member states have not been forced by other more powerful members to commit themselves to enlargement. Yet, given that the EU is an organisation that is bound by legal rules it is difficult to imagine that individual member states have been faced

3

Two often quoted international relations texts building on the new institutionalist perspective are, Cowles et al 2001 and Stone Sweet et al 2001.

4

Thus Eriksen (1999) suggests a third logic that he calls a ‘logic of moral justification’. This is similar to Risse’s (2000) category of ‘logic of arguing’.

(12)

with direct threats of use of force unless they agree to an expansion of the EU. Furthermore, as enlargement is decided by consensus member states can not be forced to accept the policy through voting procedures either.

The relevance of such analyses, as well as the credibility of their findings, might also be questioned on the grounds that there is often a considerable gap between what policy-makers say and what they actually mean. There could in other words be a ‘hidden agenda’ involved. This can to some extent be controlled by examining the consistency of the arguments presented (both consistency between different actors and consistency in the arguments of a particular actor). A further, and more obvious, credibility control is that of whether what is said and what is actually done corresponds. Most importantly, however, is it that the ‘true’ motives of the actors involved may not be crucial. As rational choice theorists argue, it is impossible for us to reach into the ‘hearts and souls’ of policy-makers and thus to uncover their ‘real’ or ‘sincere’ beliefs and convictions. For methodological reasons it is simply assumed that actors are egotistical and self-interested, that they are motivated by the aim of maximising self-interest, and furthermore by considering these interests as exogenous to the analysis. The analytical framework briefly sketched here seeks to extend the range of possible rational arguments or reasons at the actor’s disposal. What is important is that the arguments and reasons in themselves are such that other reasonable actors can support them, in other words that these are arguments and reasons that are considered legitimate or reasonable, and that as a consequence can lead to agreement on a policy. These arguments do not have to be valid by universal standards. Neither do they have to be the result of a deeply felt conviction on the part of the author. But they have to be able to mobilise support. The condition for this support is that the arguments are considered legitimate. The advantage of such an approach is to leave it open to empirical research to determine whether or not political processes can be seen to contain something ‘more’ than considerations of utility and interest maximisation. Thus, the aim is not to reject or undermine the importance of such dimensions in political processes but to try to improve our understanding of such processes by introducing two further dimensions - a ‘value’ dimension and a ‘rights’ dimension - into the analysis. Consequently, references to utility are only one way in which the decision to enlarge might be justified and thus one reason why the EU decided to enlarge. An important task is to assess whether or not the two other ways of justifying policy might have contributed to this decision.

(13)

In this report we have sought to investigate the question of whether these arguments played a more important role than the argumentation based on utility.

The report is the result of a workshop organised in Ávila, Spain in May 2004 and the articles published here are revised versions of most of the papers presented there. The report should be seen as a first step towards tackling the questions raised above. Further research than what has been possible in these pages, refining the analytical categories as well as strengthening the empirical documentation, is required.

As a general starting point for the individual contributions, three hypotheses about enlargement were suggested, based on the ideal types of the EU developed in the CIDEL project. The main hypothesis, consistent with the conception of the EU as a rights-based post-national union, was that:

- The EU enlarges based on a concern to protect universal principles of human rights and democracy, and would prioritize enlargement to those states that would make this possible.

A first alternative hypothesis was that:

- The EU would prioritise enlargement to states where the economic benefits of enlargement were considered particularly high.

This would suggest that the EU is chiefly a problem solving entity whose principal purpose is to promote the material interests of the member states. A second alternative hypothesis was that:

- The EU would prioritise enlargement to states towards which it had a particular sense of kinship based duty.

This would suggest that enlargement is not only a matter of rights but also a matter a values, and that a sense of common identity, however thin, is emerging in the EU.

The report starts with a brief look back in time, with José I. Torreblanca’s review of the development of the enlargement acquis. His comparison with past enlargements is conducted in order to assess to what extent the role of norms, and the emphasis on democracy, is a new invention in the European enterprise, and thus particularly visible in the last round of enlargement, or

(14)

rather if it is a long term trend. Subsequently, we examine three member states (Germany, Denmark and Spain) and their positions on the latest enlargement. Similarly, we look at perspectives in the applicant states, with a particular emphasis on Turkey, the Czech Republic and Slovakia. The aim of these country specific papers is to achieve a clearer view of what kind of understanding of the EU that emerges from their positions. Why did they support enlargement, or refrain from preventing it? Whereas Germany and Denmark are usually identified as drivers in the enlargement process, Spain on the other hand, is conventionally considered to have been reluctant to accept new member states. Clearly, Spain had little to gain from enlargement in economic or security terms. In fact, the country was expected to loose out in material terms, given the fact that its relative wealth inside the EU would increase as a result of the entry of poorer member states. Consequently, Spain would have to expect fewer transfers from the EU budget. However, Spain never vetoed enlargement to Central and Eastern Europe. This is the puzzle that Sonia Piedrafita examines in her paper. With regard to the drivers in the enlargement process, Denmark and Germany, it is usually argued that they promoted enlargement due to expectations of material gain. However, the two papers in this report suggest that this is, at best, only part of the story. Marianne Riddervold and Helene Sjursen find that in the case of Denmark’s position on enlargement economic considerations have little explanatory value. Security considerations on the other hand did play a part, however they cannot on their own explain why Denmark was one of the main drivers in the enlargement process, as the Danish position also entailed security risks. Rather, a sense of duty to solidarity appears to have triggered Denmark to support enlargement. Likewise in the case of Germany, Marcin Zaborowski highlights the adherence to multilateralism as a core organising principle for European relations as crucial to the country’s enthusiasm for enlargement. Hence a first cut at studying member states perspectives seems to suggest that a picture of enlargement as driven by states with a particular material interest in enlargement is insufficient. This also links to a different conception of the EU than that captured by the problem solving ideal type.

Turning to the applicant states, Petr Drulák discusses the conception of the European Union as a problem solving regime or a rights-based union in Slovakia and the Czech Republic. He finds that in particular in the Czech Republic it is possible to see a clear tension between those conceiving of the EU as primarily a problem solving entity and those emphasising its role as a rights-based union. However, the case of Turkish candidature is perhaps particularly crucial in terms of discussing what enlargement can tell us about various conceptions of the EU. We know from previous research that the arguments and reasons presented in favour of enlarging to Central and Eastern

(15)

Europe have differed from those presented in favour of enlargement to Turkey (Sjursen 2002). With regard to the former, the EU has systematically emphasised the duty to unite Europe and the sense of commonality with the applicant states. With regard to Turkey, such arguments have rarely been heard. Rather, strategic considerations have been in focus when enlargement has been justified. However, at the same time, the decision of December 2004 to open negotiations with Turkey on 3 October 2005 confirms the idea that the normative basis of the EU carries cosmopolitan elements and suggests that arguments for excluding applicant states that refer to religious differences have not been considered legitimate.

Finally, how consistent has the emphasis on the political criteria been in the different applicant states and across different issue areas? Four papers examine this issue. Gamze Avci investigates the extent to which democratic reform in Turkey has taken place according to a process of learning where the validity of arguments have played a particular role and where domestic actors have justified the need for such reforms with reference to their value and standing in themselves and not only as necessary means to achieve the objective of membership in the EU. Åsa Lundgren examines the EU’s own emphasis on democratic reform in its relation with Turkey. Paul Kubicek conducts a comparison of transition in Slovakia, Latvia, Poland and Romania, examining how norms and rules were applied as well as the extent to which democratic norms have taken root in the applicant countries. The last paper in this report discusses the issue of consistency in political criteria through a focus on the particularly thorny issue of minority rights. Guido Shwellnus asks to what extent and in what ways the EU’s position on this issue challenges the core hypothesis of the CIDEL project that the EU is developing towards a rights-based post national union.

In addition to the written papers published in this report Thomas Christiansen, Erik Oddvar Eriksen, John Erik Fossum, Alexandra Gheciu, Geoffrey Harris, Agustín José Menéndez, Andrea Ott, Børge Romsloe, Karen Smith, Gracia Trujillo and Hakan Yilmaz participated in the workshop and acted as discussant and critical interlocutors. I would like to thank all of them for their valuable input to the workshop. Particular thanks go to Geir Kværk and Majken Thorsager for highly effective and precise administrative and editorial assistance.

(16)

References

Cowles, M. G., Caporaso, J. and Risse, T. (eds.) (2001): Europeanization and domestic change: transforming Europe, Ithaca: Cornell University Press. Eriksen, E.O. (1999) ‘Towards a logic of justification. On the possibility of

post-national solidarity’, in Egeberg, M. and Lægreid, P. (eds.):

Organizing Political Institutions. Essays for Johan P. Olsen, Oslo:

Scandinavian University Press.

Eriksen, E. O. and Fossum, J. E. (eds.) (2000): Democracy in the European Union: integration through deliberation? London: Routledge.

Eriksen, E. O. and Fossum, J. E. (2004): ‘Europe in Search of Legitimacy: Strategies of Legitimation Assessed’, International Political Science Review 25 (4) (October 2004), pp. 435–59.

Fierke, K. and Wiener, A. (1999) ‘Constructing institutional interest: EU and NATO enlargement’, Journal of European Public Policy 6 (3) pp. 721-42. Habermas, J. (1993): ‘On the Pragmatic, the Ethical, and the Moral

Employments of Practical Reason’, in Justification and Application: Remarks

on Discourse Ethics, Cambridge, Mass.: The MIT Press.

Lose, L G. (2001): ‘Communicative action and the world of diplomacy’, in Fierke, K. and Jørgensen, K. E. (eds.): Constructing international relations,

New York: ME Sharpe.

March, J. G. and Olsen, J. P. (1989): Rediscovering Institutions: the Organisational basis of politics, London: Collier Macmillan Publishers. March, J. G. and Olsen, J.P. (1998): ‘The institutional dynamics of

international political orders’, International Organization 52 (4) pp. 943-69. Müller, H. (2001): ‘International relations as communicative action’, in

Fierke, K. and Jørgensen, K. E. (eds.): Constructing international relations,

New York: ME Sharpe.

Risse, T. (2000): ‘”Let’s argue!” Communicative action in world politics’,

International Organization 54 (1) pp. 1-39.

Schimmelfennig, F. (2001): ‘The Community Trap: Liberal Norms, Rhetorical Action, and the Eastern Enlargement of the European Union’

International Organization 55 (1) pp. 47-80.

Schimmelfennig and Sedelmeier (2002): ‘European Union Enlargement – Theoretical and Comparative Approaches’, Journal of European Public Policy. Special Issue 9 (4).

(17)

Sedelmeier, U. (2000): ‘Eastern enlargement: risk, rationality, and role-compliance’, in Cowles, M. G. and Smith, M. (eds.): The State of the

European Union: Risks, Reform, Resistance, and Revival 5, Oxford: Oxford

University Press.

Sjursen, H. (2002): ‘Why expand? The question of legitimacy and justification in the EU’s enlargement policy’, Journal of Common Market Studies 40 (3) pp. 491-513.

Stone Sweet, A., Sandholtz, W. and Fligstein, N. (eds.) (2001): The institutionalization of Europe, Oxford: Oxford University Press.

Torreblanca, J.I. (2001): The Reuniting of Europe. Promises, negotiations and compromises, Aldershot: Ashgate.

(18)

(19)

Chapter 1

Arguing about enlargement

José Ignacio Torreblanca

UNED

Introduction

1

More than two hundred years ago, when defending the US Constitution in

The Federalist Papers, James Madison noted the fact that the Articles of

Confederation of 1777 had not made any reference to the eventual establishment of new States or the procedures for accession of new members into the Confederation. As Madison lamented, decisions on this realm had been left ‘at the discretion of the nine States’.2 However, earlier in 1784, some years before the Constitution was drafted, Thomas Jefferson had headed a committee which produced a ‘Report of Government for Western Lands’ which proposed a plan for dividing the western territories, providing a temporary government for the West, and devising a method for new western states to enter the Union on an equal basis with the original states.

The debate on the accession conditions of new members emerged again at the time of the Constitutional Convention of 1787 when Gov. Morris and Sherman argued against conferring the new territories which may join the Union later on equal rights than those the founding members were granting

1

Thanks to Sonia Piedrafita and Gracia Trujillo for their most valuable research assistance, suggestions, observations and comments. I thank also all the participants of the CIDEL workshop (Avila 7-8 May 2004), and specially Karen Smith, Helene Sjursen, Erik O. Eriksen and John Erik Fosssum for their valuable comments and suggestions.

2

(20)

to themselves. Jefferson and Madison opposed the motion, ‘insisting that the Western States neither would nor ought to submit to a union which degraded them from an equal rank with other States’.3 Jefferson and Madison set the basis of the westward expansion of the United States. But more importantly, they ensured that this expansion would be governed by the principle of equality and non-discrimination. A few years later, in 1787, the so-called ‘Northwest Ordinance’, regulating the government of all western territories north of the Ohio River and, above all, the principle of the equality of acceding states, was adopted thus putting an end to the dispute. Jefferson and Madison’s arguments prevailed not because there was any voting, or because Jefferson and Madison were more powerful than Morris and Sherman (which they were not). If Jefferson and Madison’s arguments prevailed it was because they were superior in factual and normative terms to Morris’s and Sherman’s. Treating the new members differently, Jefferson and Madison convincingly argued to the Constitutional Convention, would be both unfair and dangerous for the legitimacy and stability of the Union. Whereas treating new members equally could be justified in terms of democratic equality and fairness, treating them differently could hardly be justified.4

Faced with the need to devise principles to handle a situation which had not been confronted before, and for which clear norms were lacking (accession of new states), actors resorted to arguments rather than threats, decided to argue rather than to bargain and, ultimately, solved the issue by referring to commonly accepted standards of democratic legitimacy and fairness. At the end of the day, the results obtained by using a logic of justification and a high standard of democratic legitimacy proved to be more efficient and more fair than those which could have been eventually been reached had the logic being applied been a logic of utility or self-interest maximization.

Despite the difference between the westward expansion of the US and EU enlargement processes, the theme of the consistency of arguments related to enlargement decisions is quite familiar for Europeans. For more than forty years now, Europeans have been examining the consistency of arguments in favour or against enlargement, and discussing the principles which should

3

‘If the admission be consented to, the new States shall be admitted on the same terms with the original States. But the Legislature may make conditions with the new States, concerning the public debt, which shall be then subsisting’ (James Madison, ‘The Debates in the Federal Convention of 1787’, available at http://www.constitution.org/dfc/dfc_0829.htm ).

4

I thank Jon Elster for this inspiring analogy and for his comments on how arguing applied then and now when dealing with enlargement.

(21)

orient this process. As shocking as it may appear, De Gaulle’s 1963 arguments rejecting the UK’s application sounded very similar to those employed today with respect to Turkey. The UK was not European, De Gaulle said. British people were not like us; they were close to the US. Similarly, today we frequently hear that Turkey is not European, that the US is behind this application as a way to weaken the EU, that admitting Turkey would alter the basic nature of the EU and make impossible achieving its finalité politique,

that Turkey’s agriculture and demography are just not compatible with EU policies and regulations etc. 5

Back in 1962, at the time of the British membership application, and still today with the confusing handling of the Turkish membership issue, the EU keeps on showing that it lacks clear rules for deciding who will become member, when and how. The lack of clear and precise rules, however, I argue in this paper, does not mean that there are no principles inspiring policies, or that arguments about legitimacy are not or have not been influential. Back in the sixties, I show, the EEC produced an enlargement

acquis specifying what membership entailed in terms of rights and duties and

how enlargement processes would be dealt with. This created deliberative conditions within the EEC and between the EEC and the applicants for them to argue over the truthfulness, validity, appropriateness of each other’s arguments for accepting, rejecting or justifying enlargement. This made it possible to translate identity-based arguments, geopolitical concerns or economic anxieties into a deliberative framework in which they could be properly dealt with and be subject to objective processes of both factual and normative verification.

Faced with enlargement, I show in this paper, EU governments have traditionally exchanged arguments about how to make sure that successive enlargements were both compatible with EU values and shared identities, on the one hand, as well as with the preservation of EU policies and institutions, on the other hand. They have come to agree on a set of membership conditions (the Birkelbach Report recommendations, the 1978 Declaration on Democracy, the 1993 Copenhagen criteria) and accession principles (the indivisibility of the acquis communautaire, ‘non-discrimination’ in the decision to open negotiations and ‘relative merit’ for determining the conclusion of accession negotiation) which make enlargement possible in ways which are

5

‘Nous pensons que les pays qui sont proches de nous n'ont pas vocation à une adhésion pure et simple de

l'Union européenne sous peine de la dénaturer complètement’. Speech by Alain Juppé (UMP) on

Turkish accession, April 7, 2004. http://www.u-m-p.org/site/index.php and .

(22)

compatible with both the preservation of the integration process and the enhancing of the democratic nature and legitimacy of the EU.

A rational institutionalist perspective would consider these principles, rules and arrangements governing enlargement (the enlargement acquis) as a typical set of institutional devices Member States use in order to minimize transaction costs, enforce compliance and solve collective action dilemmas. In this paper, however, I argue in favour of considering these conditions and principles not as institutions devised by way of instrumental oriented negotiations but as results of rational communication among actors seeking to preserve and increase the legitimacy of the EU as a supranational governance arrangement. Regardless whether enlargement serves well the material interests of member states, I argue, this set of norms regulating the accession conditions, together with the principles inspiring accession negotiations, must be seen as the outcomes of a rational deliberation, not as consequences of self-interested negotiations. The promise of deliberative supranationalism, I conclude, is worth exploring.

The promise of deliberative supranationalism

Despite the immense temporal and analytical distances between the westward expansion of the US and the eastward enlargement of the EU, I have argued, both cases seem to be well-suited to show the role that (legitimate) arguments can play in solving collective action dilemmas. As I will try to show in the paper, the understanding of EU enlargement may have a lot to gain by applying a framework based on communicative rationality and the logic of justification.

What justifies the claim (Sjursen 2002) that the theory of deliberative supranationalism (Eriksen 2003, Eriksen and Fossum 2003) can help solve the theoretical ‘puzzle’ of enlargement, to use the term first coined by Schimmelfennig (1999) in new ways?

First and above all, deliberation can be seen as a way of solving collective action problems that is not only consistent with the particular interests of the member states but also with the EU interests taken as a whole; ‘because it addresses action coordination as a process of establishing mutual understandings between diverse actors, arguing might contribute to the micro-theory required for explaining integration,’ (Eriksen 2003: 3). Enlargement is seldom specifically modelled as a collective action dilemma, but it quite looks as one: member states know that enlargement is good for them collectively but damaging individually in the short term in both

(23)

institutional and economic terms. Therefore, enlargement should result in a typical collectively suboptimal outcome which satisfies individual but not collective preferences. Deliberative processes can then solve coordination problems and result in increases of both collective efficiency and legitimacy. This is very pertinent to the case of enlargement because the basic puzzle of enlargement consists in explaining how an interested-oriented process could result in a highly normative outcome. Therefore, by providing the missing causal linking processes and outcomes, deliberation can help solving the puzzle of enlargement in ways which are theoretically sound and empirically possible.

A second advantage of deliberation is that it does not force us to choose between interests and norms (Eriksen and Weigard 1997: 229). Confronting

consensus (the typical outcome of deliberation) with compromises (the typical outcome of negotiations), makes thus little sense in the case of enlargement, in which we know that both are pervasive (Segall 2000: 63). When looking at enlargement, we can very easily check the existence of materialist interests, self-interested oriented negotiations and compromises reached at through bargaining (Moravscik and Vachudova 2002). To the extent that enlargement has been possible, it has been due to a very precise distribution of costs over time and (to paraphrase Schmitter’s observations on democratic transitions) a very careful management of time, tempo and timing. Normative considerations, on the other hand, have played a very important role. Enlargement is today such a highly regulated and principled oriented process that even typical rationalists could concede, “negotiations are little else than a process of checking that the candidates have adopted EU law. The requirements are massive, non-negotiable, uniformly applied and closely enforced” (Moravscik and Vachudova 2002: 49).

At the same time, justifications of enlargement based on moral and ethical arguments are so pervasive that it is impossible to reject them as cheap talk. Enlargement is a two-track process: on one track, there are compromises reached through interest-based negotiations; on the other track, there is a rational deliberation based on truth and impartiality which results in a set of norms and principles collectively agreed. The problem is that neither the logic of consequentiality nor the logic of appropriateness offer easy ways to deal with problems like the one posed by enlargement: sociological institutionalism and the logic of appropriateness are weak at explaining the origin and evolution of norms and, at the same time, the weakest point of rational accounts is that they fail to explain actors’ preferences, i.e. where do they originate and change (Finnemore and Sikkink 1998). In contrast, by assuming that both interests and norms are present in any political process,

(24)

and by suggesting the consideration of arguing as the main coordination mechanism among actors, deliberative supranationalism forces us to explore the particular relationships established between them in different contexts and try to account for observable differences.

A third advantage of using deliberative supranationalism is that it seems ideally suited for analysis of institutional or decision-making settings, such as the EU, in which authority is scattered, power relations are often horizontal instead of vertical and policies are the outcome of ‘governance’ rather than ‘government’. In systems like the EU, ‘where authoritative ways of resolving conflicts or interests are absent’, reason giving becomes the only way of reaching consensus (Eriksen 2003:14, also citing Lord 1999:68). That in the EU context, unanimity can help the emergence of a problem-solving approach (aimed at identifying solutions), as opposed to a bargaining approach (characterized by power assets and redistribution mechanisms) has often been noted (Elgström and Jönson 2000; Friis 1998).

Enlargement, in particular, shows two features which make it ideal for deliberation: unanimity and diffuse norms. Interestingly enough, the emergence of deliberation conditions can be explained both from rationalist and sociological premises. In cooperative-bargaining theory, the cost of disagreements is crucial to define the characteristics of a game (Esteban and Sakóvics 2002). Being enlargement such an important constitutional event for the EU, a veto would certainly leave all member states worse off than the status quo. Since the cost of the status quo is negative and known and the cost of enlargement is uncertain, actors have a strong incentive to explore the future, thus having at their disposal an opportunity to engage in deliberation as to which norms and principles should inspire policies in the future. Alternatively, if we applied a logic of appropriateness to the enlargement preferences of member states, we would find that ‘diffuse norms may create a scope for deliberation and argumentation about what the right course of action might be in a practical situation’ (Sedelmeier 2003: 12). Therefore, deliberative processes could both emerge as the result of self-interest behaviour or, alternatively, from the lack of clarity about the exact actions prescribed by constitutive norms and shared identities. As a consequence, rather than explaining the absence of vetoes or the power or norms as causes, we should see the emergence of deliberation being the consequence of the combined effect of unanimity and normative ambiguity.

Fourth and yet quite important, deliberative supranationalism makes it possible to theorize the relation between enlargement and integration in ways which have not been explored so far. As Sedelmeier (2003) has highlighted,

(25)

enlargement has traditionally been conceived of as special case of EU foreign policy. From this perspective of ‘external action’, a good deal of analyses have then examined the policy-making process, the consistency of EU actions etc. (Sedelmeier 1994, 2002; Smith 1999; Torreblanca 2001, 2002). However, cumulative research on enlargement has led most of the scholars working on the field to start examining enlargement from the perspective of its constituting impact on the EU (Sedelmeier 2000, 2003; Sjursen 2002). The EU is a dynamic entity, ‘permanently unsettled’, Laffan (2001: 4) has written, along five major dimensions: ‘constitutional order, geographical boundaries, institutional balance, decision rules and functional scope’. Interestingly enough, each enlargement process has distinctively affected each and every one of these five dimensions, though in ways which still are insufficiently systematized in empirical and theoretical terms. Early neofunctionalism, to begin with, never considered enlargement as a cause of integration, but rather as a consequence of integration. With few exceptions (Schmitter´s 1971 ‘externalization’ effects), enlargement did not fit either in the initial functionalist logic of task expansion or in the neofunctional hypotheses about the expansion of the authority allocated to supranational authorities.

However, today we cannot but notice: first, that the historical record shows that each enlargement round has had a major impact on the integration process (both as a pre-requisite and as a consequence); second, the unexpected functional spill-overs created by enlargement in the institutional realm (seen in the paradox of how member states have accepted to move an increasing number of policy areas to qualified majority voting in order to gain relative and absolute voting power, compared to unanimity); third, that whereas federalism has traditionally been an ideology seeking to push integration along some normative lines, enlargement to 25-35 members may actually be the cause of all parties accepting federalism as an efficient technical solution to authority allocation and governance problems.

This ‘constituting’ dimension of enlargement offers a major and promising avenue to build the theoretical missing link between enlargement and integration on which attention is frequently drawn (Schimmelfenning and Sedelmeier 2002). Yet, it is precisely this relationship between enlargement, integration and democratic governance which lies at the core of the research agenda posed by deliberative supranationalism. Therefore, the way the EU proceeds and justifies itself is decisive in order to tell us which kind of entity it is becoming: a pragmatic agreement legitimized in terms of its efficiency, a

(26)

rights-based union, or a true community based on common values and shared identities (Eriksen and Fossum 2003).

Hypotheses on enlargement, deliberation and

principles

Among the most recent, and apparently powerful alternative explanation to the puzzle of enlargement, one has to credit Schimmelfennigs’ ‘rhetorical action’ argument (1999, 2001). ‘Rhetorical action’ is based in the strategic use of norms, identities and arguments about legitimacy by some actors in order to shame non-compliant states and induce them to change their preferences or moderate their demands. In Schimmelfennig’s view, the collective action problem of enlargement is solved because the limiting effects on the pursuit of self-interests of a ‘community environment’. He thus argues that the collective action problem is solved by combining ‘a rational account of preferences and logic of action, followed by a constructivist explanation of interaction and dynamics’ (2003:157).

As Eriksen (2003) and Sjursen (2002, 2003) have pointed out, rhetoric can only have an impact if actors truly share the legitimacy of these norms and the arguments employed to justify political decisions. Therefore, Schimmelfennig’s ‘rhetorical action’ is more of a sophisticated version of rational bargaining which has little or nothing to do with deliberation. Following Elster’s (1991: 2-3) distinction, bargaining is about ‘forcing and inducing with threats or promises’ (which is precisely what Schimmelfennig’s governments do), whereas, when arguing, ‘actors are constrained by ideas of impartiality and consistency’.

Obviously, there is nothing wrong with considering institutions, norms and shared identities as both brakes on the pursuit of particular interests and as devices to solve collective action problems. Yet, in these situations, it is not enough to explain how rational action proceeds in the presence of these institutions. When institutions are the causes of cooperation, not the consequence of rational action, our focus must then be to explain how these institutions came about, not what happens once these institutions are in place (Elster 1989). This is precisely what deliberation offers: a tool for examining how decisions have been reached, how they are justified and, therefore, which is their legitimacy basis. If one government considers that the EU has no legitimacy other than output legitimacy and that, by definition, only decisions satisfying the national interests are legitimate, that government will not be likely to be moved by rhetoric inspired by a rights or value-based community. Alternatively, if one considers the EU to be a value-based

(27)

community, it would not be really moved about the geopolitical benefits of having Turkey in. Equally so, if one believes that the EU is a rights-based union, it would show little sympathy for those who put pressure on the Commission to, out of political consideration, concede the applicants all sort of derogations concerning the acquis communautaire.

A way out of these dilemmas, based on deliberative supranationalism, could proceed by examining the regulative aspect of enlargement from a historical perspective. Looking at the emergence and evolution of the rules of the game or the ‘enlargement acquis’ seems not only perfectly suited to test hypotheses about the power of arguments, the importance of justification and the role played by deliberation, but can also help bridge some of the tensions and limitations which the logic of consequentiality and the logic of appropriateness make so evident when examining enlargement.

As March and Olsen (1998: 952-3) have conceded, actors both calculate actions and follow rules: ‘political action cannot be explained in terms of either one or the other […] any particular action probably involves elements of the other. Political actors are constituted by their interests, which they evaluate according to the expected consequences of their actions, and by the rules embedded in their identities and political institutions’. Reflecting on the relations with rules and interests, March and Olsen (1998: 953-4) consider four plausible hypotheses: first, situations in which interests are strong and rules or identities weak, or vice versa, so one dominates the other; second, situations in which one logic is the precondition of the other, i.e. rules sets the frame which make possible the unfolding of consequential rationality, or vice versa; ‘developmental’ situations in which norms are the result of accumulated experience, i.e. actors enter in new relationships because of instrumental reasons, but ‘develop rules and identities as a result of their interaction; and fourth, that rules and interests are just one special case of one another, as in rational institutionalism, where rules are just the outcome of an instrumental negotiation.

Of these alternatives, I argue, the third, or ‘developmental’ hypothesis, is the one which best suits enlargement. Why so? There are two ways of looking at enlargement deals: they can be considered as compromises reached at through negotiations or, alternatively, as consensual agreements reached at by way of a rational deliberation. Most often, however, as Laffan concluded (2001: 741) when examining the history of EU budgetary negotiations, what we find in reality is that agreement on a policy cannot be separated from agreement on the rules of the game. Therefore, looking at how the rules of the game of enlargement have come about is compatible with defending the view that

(28)

enlargement proceeds by package-dealing negotiations comprising various policy, institutional and budgetary elements.

However, whereas ‘enlargement packages’ are easy to identify and account for in empirical and theoretical terms, little empirical or theoretical work has been done to examine what the rules of this game are and how they have come about. Yet, this is surprising, because enlargement is a highly regulated and principled-oriented process. Today, the ‘enlargement acquis’, defined as ‘the set of rules, norms, principles and values which establish who can be member, when it can be member and how will it become member’, is wide, comprehensive and clear: it includes a precise definition of the accession procedure (art. 49, ex. 237), the conditions applicant have to meet in order to qualify for membership (art 49 in connection to art 6.1 establishing democracy, the rule and law and human rights as pre-conditions for membership), plus a series of principles (indivisibility of the acquis, non-discrimination and relative merit) which govern the decision to open and close accession negotiations and the way these negotiations have to proceed. But what are principles, and how do we recognize them when we see them? First, principles have to be distinguished from rules (Abbot et al 2000: 413): rules are at one extreme of precision, principles, norms or values, at the other; rules prescribe what to do, principles inspire. Following Surel (2000: 496-8) we could distinguish between meta-principles which form the deep core of the EU (democracy, social-market economy) which are ‘basic ontological normative beliefs about the world’, and specific principles which are ‘hypothetical deductive statements, which allow the operationalization of values in one domain and or particular policy’. Specific principles thus serve to translate these basic beliefs about the world into legitimate public policies: they delimit, rank and legitimate the terrain for public action (Surel 2000: 499).

Principles are typically reached at through a process of public reasoning, they represent outcomes which can be affirmed by all reasonable people, consistent with their commitment to their own reasonable comprehensive doctrines (Horton 2003: 12). They are usually reached at the problem-definition phase, before the actual negotiations begins, so their role is to structure the subsequent negotiation phase. Normative principles, including rules of fairness, are so important because they ‘serve as a basis for actors involved to claim legitimacy for their respective positions’ (Risse and Muller 2001: 14-15; Risse 2000). Agreements can usually take the form of principles.

‘Principles clarify behavioural obligations, help adjudicate differences of interpretation and settle disputes; raise the profile of the obligation

(29)

to a public commitment making actors incur in reputational costs; create a right of redress in third parties; reinforce the tendency to path dependency: set procedural or substantive precedents and limit alternative options; force actors to frame their policies and preferences in terms of legal/normative requirements’

(Smith 2001:84). The emergence of principles is thus a typical empirical marker of a logic of arguing: the adherence to a norm, a principle or a common authoritative value in the justification of actions is what ensures that a rational consensus is reached (Eriksen 2003: 23; Risse 2000). Therefore, the identification of the rules and principles governing actor’s behaviour, as well as their degree of institutionalization, is key for the agenda of deliberative supranationalism (Eriksen 2003).

Principles might then be institutionalized, contributing to ‘the development of expectations and regularities of behaviour’ (Smith 2001: 84). Institutionalization, in turn, may create a path-dependency dynamic in which principles establish a predictive behaviour and are called in subsequent negotiations by actors. In subsequent situations, the ‘lock-in’ dynamic of path-dependency may shift the logic at work from a logic of consequentiality to a logic of appropriateness: agreements create obligations which have to be respected and socialization raises identities and roles which have to be fulfilled. If actors consider these agreements rational and the principles which express them as legitimate, we may observe a process of embeddedness: actors may feel obliged by them, even if they are only soft-law, and delegate to an agency (the Commission) the correct implementation of these principles into practical policies. At the end of such a process of institutionalization, lock-in, embeddedness and legalization (no matter how soft), ‘a discourse emerges in which interest or power is no longer legitimate’ and discussion is possible but on different premises (Abbot et al 2000: 409).

The search for legitimate and fair enlargement

principles

Of all the principles governing enlargement, the most outstanding is that of the indivisibility of the acquis: ‘Accession must be based on principles like full respect of the acquis, no “opt-outs” and no derogations, and the restrictions of transitions measures to duly justified cases for limited periods of time’. 6

6

See e.g. ‘Enlargement of the European Union. The European Parliament position. Point Q’.

(30)

Therefore, according to this principle, new members accept the existing

acquis in full, without any derogation. When it comes to enlargement, the

acquis is very generously defined: it includes the basic Treaties; the

international agreements; the legislation passed since the foundation of the EEC; all the jurisprudence of the Court (including the doctrines of supremacy and direct effect of EU law); and all the agreements, resolutions and statements by the European Council, the European Commission and the European Parliament in pillars I, II or III (even the compte rendu of the COREPER meetings, despite the COREPER not having any legal status, can be considered acquis).

Yet, as observers have noted (Jørgensen 1999), the sacrosanct nature of this principle is striking. Despite pressures to adapt or make it more flexible, four enlargement rounds have been based on this principle. In the case of Eastern enlargement, all the proposals aimed at anticipating or changing the basic character of membership, even those stemming from the Commission (both Andriessen and later Broek-Brittan suggested special statutes of membership for Central and Eastern Europe) have been consistently rejected (Torreblanca 2001), with the ECJ having clearly reaffirmed in various rulings the absolute superiority of the acquis (Gialdino 1995; Goebel 1995; Pedain 2002; Preston 1995). However, this principle is not in the Treaty (even the word acquis was not introduced in the Treaty until 1993, when article B spoke for the first time of the goal of ‘maintaining in full and develop the acquis and build on it’). Article 237 and Article 49 have traditionally spoken of an ‘agreement’ between the parties and nowhere in the Treaties is it made explicit that membership requires the adoption of the acquis in full (Becker 2001: 7-8). Actually, the same can be said about the principles of ‘non-discrimination’ and ‘relative merit’, on the one hand, and some of the accession conditions set forth in Copenhagen, such as ‘administrative capacity’, the ‘protection of minority rights’, or ‘the capacity to resist competitive pressures’, which are not part of either Article 49 or 6(1) and have not been included in the Treaty despite successive Treaty modifications.

Still, the apparent careless wording of Article 237 of the Treaty of Rome’s, which only stated that any European country may become member, should not be considered a proof of poor legal draftsmanship. Such a loose definition can be interpreted both as synonymous with an explicit open ethos and pathos

in the founding project of the EEC or as confirming the implicit recognition that the founding fathers had not in fact dedicated much time to speculate about the future enlargements. The different justifications behind the negative answers given in the sixties to the UK and Spain were a good proof of this: following the Birkelbach Report, refusal to admit Spain was justified on

(31)

grounds of its non-democratic character. Yet, despite the UK being the oldest democracy in Europe, De Gaulle vetoed the British membership application twice, before and after the Birkelbach Report, with a double justification: value-based (i.e. ‘they are not like us’) and pragmatic (British agriculture is not compatible with the CAP and British tariffs are not compatible with the common market).

However, at the same time that the British application was being rejected, all along the 60s, the EEC signed association agreements promising membership to Malta, Cyprus, Greece and even Turkey. The different rationales and justification behind these moves did not speak well of the coherence of the EEC and, most importantly, revealed the absence of clear principles to govern enlargement applications and expectations. EEC’s dealings with the membership question in the sixties confirm the hypothesis that the enlargement acquis emerged from the need to provide particular responses to particular problems at different moments, and that even then, not a lot of effort was devoted to coordinating and integrating the responses given to different requests for membership.

The true founding moment of the doctrine of the acquis communautaire as a core component of the enlargement acquis was the Birkelbach Report. The fact that the Parliamentary Assembly geared a debate and established the principles governing enlargement is a strong empirical indicator of deliberation because the European Parliament obtained a formal role in the enlargement process only in 1987 (when the SEA modified EEC art 237 in order to make Parliamentary assent a requisite for enlargement). The Birkelbach Report was the product of a reflection by the EEC Parliamentary Assembly on the nature of political integration and the finalité politique of the Union in the wake of Macmillan’s decision to apply for membership, not, as it is usually depicted, the Spanish demand for association. 7

De Gaulle’s justification of the rejection of Macmillan’s 1961 decision to apply combined two types of arguments: value-based and pragmatic. The former called attention to the fact that because of its Anglo-Saxon, transatlantic identity and non-continental character, the UK did not share the

7

The Birkelbach Report was made public on 15 January 1962, while the letter from the Spanish Ministry of Foreign Affairs demanding the opening of negotiations ‘with a view to examining the possible vinculation of my country with the EEC in the most beneficial form for both parties’ was dated in Madrid on 9 February 1962. Rapport de la Commission politique de

l’Assamblée Parlamentaire Européenne sur les aspects politiques et institutionnels (15 January 1962),

Document 122, Janvier 1962. (Archives of the European Communities, 07.515:32;X3.075.15), reproduced in Truyol 1999.

(32)

finalité politique of the integration process and concluded that this made it

different from the EEC 6 in terms of basic values and identities. The later justification was more mundane: the different policy preferences of the UK and EEC 6 regarding agriculture (zero tariff and no restrictions versus high tariffs and price subsidies, respectively) made factually impossible the integration of the UK in the common market. 8

But much as is the case today with respect to Turkish membership (Lundgren 2002), the need to publicly justify the reasons behind political decisions in order to obtain support and legitimacy opened a deliberative round in which the consistency of arguments was examined.

The Birkelbach report established that accession was not a right of the applicant but, rather, that the Community had the right to demand that applicant states fully commit themselves to honour the economic, political and institutional obligations which membership entailed. Very revealingly, the Report’s reflection on democracy was part of wider reflection on the conditions under which an applicant would become a ‘strange body’ (sic) once member. Besides making democracy one obvious condition of membership, the Birkelbach Report made an explicit reference to applicants not pursuing foreign policies ‘which are in contradiction with the fundamental attitudes of member states or that substantially deviates from them’. A year earlier, in 1961, the EEC Bad Godesberg Summit Declaration had for the first time proclaimed the member states’ desire to coordinate their foreign policies and, eventually, arrive at ‘common positions’ with a view of promoting ‘the political union of Europe’. 9

Building on this declaration, the report concluded that the Community was more than just a free trade area or a customs union, that the ‘political character of the Community cannot here on be called into question’, that acceptance of the institutional framework was also a precondition for membership; and, even more importantly, that accession to the Union was irrevocable and that it could not be partial. It concluded by affirming that ‘membership of the Community entailed not only the obligation to admit all the dispositions established in the Treaties, but also all the decisions and directives passed after the entry into force of the

8

Speech by Harold Macmillan to the House of Commons on 31 July 1961. In EEC Bulletin 1961, 9-10 Sept-Oct, pp. 7-9, reproduced in Truyol (1999: 230-1); Press Conference of President De Gaulle, Paris 14 January 1963, reproduced in Truyol (1999: 239-243).

9

Summit meeting of EEC Member States, Bad Godesberg, 18 July 1961. European Parliament, Documents about Political Union, January 1964, pp. 9-10, reproduced in Truyol (1999: 228-230).

(33)

Treaties, including those adopted by the Council of Ministers and the Court of Justice’.10

So was the acquis born. In a deliberative context such as the one created by the Parliamentary Assembly, actors were forced to frame their arguments in terms of factual or normative validity, were exposed to counter-arguments which they also had to assess, and ended up with a set of principles which amounted to a rational consensus. In this fashion, the Birkelbach Report gave birth to the two basic elements which have characterized enlargement ever since: one accession condition (democracy) and one principle governing accession (the integrity of the acquis). Accordingly, in the Acts of Accession between the EEC and the United Kingdom, Denmark and Ireland, it was clearly specified that the new members accepted not only the Treaties, but all the subsequent legal acts from all EEC institutions, including the decisions, agreements and resolutions of the Council, the international treaties agreements and conventions signed by the EEC as well as all the jurisprudence of the European Court of Justice, specifically mentioning (by suggestion of the Commission, who was weary of British Courts and the House of Lord’s judicial powers), the doctrines of supremacy, direct effect and uniform interpretation of EU law, which were not in the Treaties (Goebel 1995: 1143-4). In this fashion, the conditions set out in the Commission’s opinions on British, Norwegian, Irish and Danish accession established the idea that the achievements of European integration were beyond negotiation (Jørgensen 1999:8; Goebel 1995: 1142-5; Preston 1995, 1997: 452).

Arguing about factual and normative adequacy of

enlargement principles

The conditions and principles established in the Birkelbach Report not only preserved the EC. By making sure that, if correctly applied, the EC would not be diluted or weakened as a result of enlargement, they also forced the Commission and member states’ subsequent arguments in favour or objections to enlargement to be framed in terms of their factual and normative adequacy.

This was first seen in the seventies, when the EEC had to deal with the membership applications of Greece, Spain and Portugal. In the case of Greece,

10

The acquis communautaire became established around six elements: the Treaties, the institutions, the body of legislation, the international agreements already signed by the EEC, the accession treaties; the political goals or acquis politique, and the rulings of the ECJ.

(34)

the Commission’s Opinion placed the emphasis on the integrity of the acquis

and advised a slow accession process. However, the Council overrode the Commission’s concerns and, in a political act, decided to open accession negotiations without having yet all the guarantees Greece would be ready to adopt the acquis (Verney 2002). In a similar way, negotiations were opened with Spain in 1979 despite widespread fears about the country becoming an ‘enfant terrible’ (sic) due to its foreign policy orientation, the size of its population, and its backward economic structures, including massive unemployment, the third largest fishing fleet in the world and a labour-intensive agricultural sector (Barbé 1995; Commission’s Opinion on the Accession of Spain).In both cases, the arguments used to justify enlargement emphasized the common values behind these countries’ application, and the impact membership would have in further consolidating their democratic regimes. Yet, in order to ensure that membership would effectively strengthen democracy in the candidate countries, the European Council, meeting in 1978 in Copenhagen, approved a ‘Declaration on Democracy’, which further specified what the democratic criteria actually meant. This declaration, which affirmed ‘pluralist and representative democracy, the free expression of opinions, the rule of law, social justice, respect for human rights’ to be ‘essential’ elements of membership meant a heightened definition or expansion of the enlargement acquis beyond the Birkelbach Report and the Acts of Accession of the first enlargement (Goebel 1995: 1150).11

Again in the nineties, as a result of the applications presented by Austria, Sweden, Norway and Finland, on the one hand, and the perspective of a subsequent Eastern enlargement, on the other hand, EU member states and the Commission engaged in a new deliberative round aimed at refining the norms and principles governing enlargement processes. The result was a further development of the set of norms and principles which should preserve the norms and values inspiring the EC. Among them, there was the adoption at the Lisbon 1992 European Council of the ‘deepening first’ policy12, which did not only apply to the ratification of Maastricht as a precondition for starting accession negotiations with Austria, Finland, Sweden and Norway but that was subsequently seen in the explicit linkage between the opening of negotiations with Cyprus and the ending of the 1996 Intergovernmental Conference, and in the linkage between the Treaty of Nice and the first round of Eastern enlargement.

11

European Communities, The Council, ‘Revised text of the Declaration on Democracy’, European Council, 7-8 April 1978, in Copenhagen, Brussels 5 April 1978, I/104/78 (AG 1).

12

‘Widening must not be made at the expense of deepening’ (Europe and the Challenge of Enlargement). Report from the Commission to the European Council meeting in Lisbon, 26-27 June 1992).

(35)

The membership conditions spelt out by the 1993 Copenhagen European Council also represented a substantial addition to the enlargement acquis: first, by adding the rights of minorities to the list of democratic conditions; second, by specifying the contents of the finalité politique which candidates had to share as a part of the acquis (‘full adherence to goals of the Union, including political, monetary and economic integration’); third, by add

Enlargement in perspective

Enlargement in perspective

Table of contents

Enlargement in perspective

Analytical approach

References

Chapter 1

The promise of deliberative supranationalism

Hypotheses on enlargement, deliberation and

The search for legitimate and fair enlargement

Arguing about factual and normative adequacy of