Year LXIV, 2022, Single Issue, Page 38
A Larger Circle Around the EU:
How to Reconcile Enlargement, Deepening
and Respect for Human Rights
GIULIA ROSSOLILLO
Introduction.
The various crises of recent years have forcefully brought to the fore two apparently conflicting needs within the context of the process of European integration. One is the need to strengthen the Union so that it may be able to deal with crises that arise, and also become a global player capable of preventing them from occurring in the first place; the other is the need to enlarge the Union and expand its sphere of influence. These needs are, in some respects, difficult to reconcile. The stronger the Union gets, the more difficult it becomes to join, because joining a politically strengthened Union implies accepting a strong limitation of national sovereignty. On the other hand, the larger the Union grows, the more difficult it becomes to strengthen and reform it in a more supranational sense; after all, many decisions, primarily on Treaty revision, must be taken by unanimity, which obviously becomes more difficult to achieve the greater the number of states involved.[1] Moreover, as the 2004 enlargement has shown, a state that joins the European Union is unlikely to be then inclined to move swiftly towards a further limitation of its sovereignty.
The War in Ukraine and the Drive to Enlarge.
Russia’s invasion of Ukraine has turned the spotlight back on the topic, shelved for many years, of enlargement of the EU. The need to offer a tangible sign of EU support for Ukraine and the will to attract states into the circle of Western democracies, as opposed to autocracies, has prompted the EU to grant Ukraine (and Moldova) candidate country status.
However, joining the EU is a very long and complex journey, especially for countries, like Ukraine, that have been and are continuing to be impacted by war: it involves a process of transposition of the Union’s acquis and demands compliance with certain very specific economic and legal criteria (the so-called Copenhagen criteria), whose fulfilment is monitored by the Commission.
With this in mind, it is worth drawing attention to French president Emmanuel Macron’s proposal to create a European Political Community (EPC),[2] by which he means a circle of like-minded countries that, while some may not yet (or no longer) wish to be part of the EU, nevertheless share the same values and desire to engage in forms of cooperation in a range of areas: political, security, energy, investments, infrastructures, and the movement of people, especially young people.
The proposal seems to meet two needs: first, to strengthen the bloc of democracies and states that are united by certain fundamental values, and second to overcome, to an extent, the limits of the EU accession procedure, so that those states wishing to join the Union might already be given the chance to cooperate with it politically, pending completion of the difficult process of transposing the acquis into their national legislation and adapting their economies to the criteria required of a member state. Under the proposal, these states would therefore be linked with the Union in a political sense, i.e., on the basis not of economic criteria, but rather of shared democratic values and a shared vision of collective security.
Whether or not we will see concrete developments in this sense — this looks unlikely for now, given that the EPC seems to be envisaged along the lines of an international conference —, the proposal nevertheless constitutes an opportunity to address the issue of the possible creation, outside the Union, of a circle of countries linked to it by a different and more political bond than the one created by the usual association agreements.
In particular, to find some points for reflection on this question, we can think back to the experience of the 1950s, in particular the draft Treaty establishing a European Political Community which had been meant to complement the Treaty establishing the European Defence Community (EDC). The feature shared by today’s proposal and that of the 1950s is not so much the name (the 1950s version of the European Political Community was entirely different from the one now being proposed by Macron), but rather the fact that the 1953 draft treaty envisaged a sort of associate member status, the very solution that today would seem to offer valuable opportunities moving forward.[3]
Indeed, under Article 90 of that treaty,[4] the Community, with a view to establishing close collaboration in certain areas, would have been able to conclude agreements with third countries willing to guarantee respect for human rights and fundamental freedoms. These agreements, under Article 91,[5] could also have allowed representatives of the governments of the associated states to take part in the Council of Ministers, and the same states’ members of parliament to sit in the senate, with either partial or full rights.
The overall solution envisaged in the 1950s is interesting for two main reasons: first because, like the current EPC proposal, it seems to evoke an association founded more on common values and respect for fundamental rights than on economic or juridical criteria; second, because it envisages forms of cooperation involving a much greater sharing of decision-making power between the EU and third countries than is envisaged by normal association agreements. Indeed, the latter, unlike the 1953 political community project, do not envisage any participation by representatives of third states in the meetings of EU bodies.
Actually, the idea of some kind of partial participation in the Union is not a new one, having been broached in recent years by that part of the doctrine that is open to the creation of forms of associated or limited membership. Although here is not the place to describe in detail the hypotheses that have been advanced, we need only consider that some authors have proposed annual meetings of the European Council extended to associate or affiliate member countries, the participation of observers from these countries in sessions of the European Parliament, and a role for associate judges in the Court of Justice in cases involving matters relating to associate or affiliate member states.[6] As some have pointed out, these forms of limited membership could then allow certain rights to be extended to the citizens of the said states (social protections for migrant workers, the right for political parties and civil society organisations from these states to carry out their activities in the European area) and financial and structural assistance to be provided. Furthermore, looking at the issue from the protection of human rights and rule of law perspective, it is possible to hypothesise the creation of economic incentives aimed at strengthening such protections and conditional upon the achievement of objectives in this sense.[7]
If membership of a future EPC were to mean all that we have described above, rather than amounting merely to a form of consultation within an international conference, then it could easily be proposed both as an alternative to full membership (for those states wishing to maintain a looser link with the Union) and as a step towards accession for those wanting more than that.[8] This second point should be made extremely clear, to prevent states joining the European political community from believing that their membership of it is somehow a bar to their future membership of the EU. On the contrary, joining this community would be beneficial also to those states wanting to achieve full EU membership, because it would give them the chance, already, to participate (albeit without the right to vote) in discussions within some of the Union’s institutions, and benefit from certain rights and financial assistance, without all this being conditional upon compliance with economic criteria and the very complex acquis transposition process.
How to Reconcile Enlargement and Deepening.
However, the prospect of enlargement and of the creation of a European political community constituting a sort of circle outside the Union is unthinkable unless the EU manages to strengthen itself and become a subject capable of responding to the clear challenges thrown up by the crises of recent years, and therefore of responding to the needs expressed by the citizens through the Conference on the Future of Europe.
Indeed, without this strengthening, the planned external circle and progressive entry of new states could easily lead to dilution of the Union and prove an obstacle to its functioning; as a result, the Union would be in no position to offer a guarantee of security to the EPC member states.
What needs to be done, in short, is assign the Union competences in crucial sectors such as health, energy and social policy (or strengthen those it already has in these fields), establish mechanisms to facilitate decision making and, in particular, abolish unanimity within the Council and the European Council. The European Parliament must be allowed to participate fully in decision making,[9] which means eliminating intergovernmental decision-making methods, and given the power, in particular, to decide on EU revenue. This will mean progressively transforming the Commission into a true government.
These reforms, being of a structural nature, will necessitate modification of the Treaties, and will therefore require the unanimous agreement of the twenty-seven member states.
As already pointed out, enlargement and deepening are closely linked, since enlargement without a simultaneous or preventive transformation of the Union would effectively make the latter’s evolution towards a federal form impossible. On the other hand, however, not all the member states would welcome such an evolution and a modification of the Treaties designed to create the embryo of a political Europe.
The need to reconcile enlargement with deepening of the EU makes it necessary to return to the topic of differentiation within the Union, and therefore to the prospect of different speeds of integration and, in particular, the creation of the hard core of a political union within the single market.
The Link Between the Different Policies.
The issue on which I would like to focus, taking two basic considerations as my starting point, is the form that this differentiation should take.
The first basic consideration concerns the close links between the sectors in which there has emerged the need to strengthen the Union and make it capable of acting. A European defence is unthinkable without a European foreign policy and a European industrial policy; these policies in turn require resources, and therefore financial autonomy for the Union, and a Commission accountable to the European Parliament and able to adopt political decisions without depending on an agreement in the European Council. The same consideration applies to energy policy, closely linked to foreign and security policy and industrial policy, and also to social policy, which cannot be conceived in the absence of a true federal budget.
Essentially, if the aim is to make Europe effective and capable of asserting itself as an international player, there can be no seeking separate solutions for the various sectors and no thoughts of a Europe à la carte in which each state decides which sectors it wants to participate in. This is because, ultimately, the ability to act in each of these sectors depends on the creation of closer union in all of them.
In the face of this need for closer union in all sectors, recourse may be had to enhanced cooperation, the only more broadly applicable instrument of differentiation offered by the Treaties. This mechanism allows a group of at least nine states to advance more rapidly in certain sectors in which the Union does not have exclusive competence, provided they have been authorised to do so by the Council, and providing the Treaties and Union law, as well as the rights and obligations of non-participating states, are respected.
But precisely because the enhanced cooperation mechanism is designed to refer to specific sectors, and gives rise to the creation of different groups of states that cooperate more closely in these areas, it fails respond meet the need, just highlighted, for closer union in all sectors. What is more, even in cases where enhanced cooperation has been adopted in various, similar sectors, and should in theory therefore embrace the interests of the same group of states (as in the case of the regulation implementing enhanced cooperation in the area of jurisdiction, applicable law and the recognition and enforcement of decisions in matters of matrimonial property regimes, and the one implementing enhanced cooperation in the area of the law applicable to divorce and legal separation), the participating states are not always the same ones.[10] Indeed, as has been noted, enhanced cooperation is based on case-by-case compromises and not on a common overall understanding of what differentiation means.[11]
Differentiation and Features of the Sectors Considered.
The second important consideration to make is that the question of integration, in a federal sense, today involves sectors close to the heart of state sovereignty, and concerns matters that often have what the doctrine would term “redistributive”[12] implications, a circumstance that increases the need for forms of differentiation other than the à la carte or enhanced cooperation variety.
If, as we have underlined, these matters are indeed closely linked to each other and therefore require an effective Union equipped with the capacity, within its sphere of competence, to express a common will and act independently of the member states, then the mechanism of enhanced cooperation is inappropriate, because it presupposes the maintenance of the existing institutional structure.[13]
Furthermore, in the absence of a political union, the application of forms of enhanced cooperation, i.e., forms of differentiation inserted into the existing institutional structure and limited to individual sectors, can only have destructive effects or prove ineffective. Let us take the example of the rule of law: an enhanced cooperation initiative aimed at strengthening the member states’ compliance with the rule of law and at enhancing the tools available to the European institutions for monitoring the same would certainly attract and involve only those states in which the level of compliance with the rule of law is already high, while those in which it is not respected, or is respected less, would have no interest in participating. The enhanced cooperation would therefore be ineffective. The same would apply to efforts to tackle migration policy, risk sharing and taxation. In the first case, any enhanced cooperation would clearly only be agreed between states subject to the strongest migratory pressures, and this would of course undermine the effectiveness of any measures on the distribution of migrants between the member states. A similar scenario can be envisaged with regard to the (already authorised) enhanced cooperation on a financial transaction tax, on which, for years now, it has been impossible to find an agreement between the participating states.[14] After all, should some states decide to enter into this enhanced cooperation, designed to institute a new tax, this would only encourage the companies required to pay the tax to relocate to states that have chosen not to participate in the cooperation, and the measure would thus be rendered ineffective; alternatively, were its application to be extended also to subjects established in external states, this would clearly impinge on the rights of non-participating states, a circumstance prohibited by the provisions on enhanced cooperation.
On the other hand, in a situation characterised by closer political integration of a core group of states, these problems would be overcome. Taking, again, the example of the proposed tax on financial transactions, the disadvantage for a company of being based in a state that belongs to this core group, and therefore obliged to pay this tax, would be offset by the existence of a federal budget able to guarantee stability and investments and to compensate for tax competition phenomena.
The Outlook for the Federal Core.
What is clear, therefore, is that it needs to be the same group of states proceeding towards greater integration in all the sectors mentioned above, and giving life to the core of a political union. Only in this way will it be possible to meet the needs of a Europe capable of acting internally and internationally in the areas herein highlighted. The only form of differentiation compatible with the objective of reconciling enlargement and deepening of the EU therefore seems to be the vanguard formula, or, put another way, a Europe of concentric circles, along the lines of the model used to create economic and monetary union.
The working of the institutions remains an open problem, but the solution most compatible with the maintenance of the Union and the creation of a political core within it would seem to be that of keeping the current institutions and allowing them to function in a variable geometry mode.[15]
As for the process by which this result may be achieved, were no agreement to be reached on a Treaty reform providing for different levels of integration, the states intending to pursue the creation of a federal core would have no choice but to enter into a separate treaty of their own.
[1] This very point was highlighted by G. Van der Loo, P. Van Elsuwege, The EU-Ukraine Association Agreement after Ukraine’s EU Membership Application: Still Fit for Purpose, European Policy Centre, Discussion paper, Europe in the World Programme, 14 March 2022, p. 5, “there is a ‘fourth Copenhagen criterion’, which relates to the EU’s capacity to absorb new member states”, https://www.epc.eu/en/publications/The-EUUkraine-Association-Agreement-after-Ukraines-EU-membership-app~46daac.
[2] The proposal was made on 9 May 2022. On the EPC proposal, cf., for all, T. Chopin, L. Macek, S. Maillard, La Communauté politique européenne. Nouvel arrimage à l’Union européenne, Institut Jacques Delors, Décryptage, May 2022, https://espol-lille.eu/chopin-t-macek-m-maillard-s-2022-la-communaute-politique-europeenne-nouvel-arrimage-a-lunion-europeenne-decryptage-paris-institut-jacques-delors-18-mai/.
[3] On this point, cf. A. Duff, Britain and the Puzzle of European Union, London-New York, Routledge, 2022, p. 11.
[4] Art. 90: “En vue d’établir dans certains domaines une collaboration étroite impliquant les droits et obligations corrélatifs, la Communauté peut conclure des traités ou des accords d’association avec des États tiers qui garantissent le maintien des droits de l’homme et des libertés fondamentales”.
[5] Art. 91: “Le traité d’association peut prévoir notamment: 1. La participation de représentants des gouvernements des États associés au Conseil des ministres nationaux et de représentants des Peuples des États associés au Senat, soit avec des droits partiels, soit avec des droits pleins; 2. La création de Commissions permanentes mixtes de caractère gouvernemental ou parlementaire”.
[6] In this sense, cf. C. Atligan, D. Klein, EU Integration Models beyond Full Membership, Konrad-Adenauer-Stiftung e.V., Working Paper, May 2006, pp. 8 ff., https://www.kas.de/documents/252038/253252/7_dokument_dok_pdf_8414_2.pdf/b7cf7fa7-340c-855b-477e-5db773e974f3?version=1.0&t=1539665427443; A. Duff, Britain and the Puzzle of European Union, op. cit., p. 133.
[7] Ibid., p. 7.
[8] On this point, cf. T. Chopin, L. Macek, S. Maillard, La Communauté politique européenne…, op. cit., p. 4, who argue that membership of the European Political Community should entail, in addition to ratification of the Charter of Fundamental Rights of the European Union, “une association à la vie institutionnelle de l’UE”.
[9] On this point, cf., for all, T. Gierich, How to Reconcile the Forces of Enlargement and Consolidation in “an Ever Closer Union”, in T. Gierich, D.C. Schmitt, S. Zeitzmann (eds.), Flexibility in the EU and Beyond. How Much Differentiation can European Integration Bear?, Baden-Baden, Nomos Hart, 2017, pp. 17 ff., pp. 24 and 48.
[10] On this point, cf. R. Böttner, The Development of Flexible Integration in EC/EU Practice, in T. Giegerich, D.C. Schmitt, S. Zeitzmann (eds.), Flexibility in the EU and Beyond. …, op. cit., p. 81.
[11] Ibid., p. 83. To overcome this limit of enhanced cooperation, Art. 10 of the Fiscal Compact provides that the states parties to this treaty “stand ready to make active use, whenever appropriate and necessary, of measures (…) of enhanced cooperation (…) on matters that are essential for the proper functioning of the euro area, without undermining the internal market”, thus anticipating the possibility of the same group of states giving rise to multiple enhanced cooperations.
[12] In this sense, cf. F. Schimmelfenning, The Conference on the Future of Europe and EU Reform: Limits of Differentiated Integration, European Papers, 5 n. 2 (2020), p. 996 f., https://www.europeanpapers.eu/en/e-journal/conference-future-europe-limits-differentiated-integration.
[13] According to Art. 326 TFEU, “Any enhanced cooperation shall comply with the Treaties and Union law.”.
[14] Moreover, with the withdrawal of Estonia, the number of states participating in this cooperation has fallen from eleven to ten.
[15] On this point and in relation to the composition of the EP, cf., for all, M. Heermann, D. Leuffen, No Representation Without Integration! Why Differentiated Integration Challenges the Composition of the European Parliament, Journal of Common Market Studies, 58 n. 4 (2020), pp. 1019 ff., https://onlinelibrary.wiley.com/doi/full/10.1111/jcms.13015.
