CONCLUSIONS

THE TREATY OF ACCESSION AND DIFFERENTIATION IN THE EU

According to the conclusions of the 1993 Copenhagen European Council, candidates were expected to incorporate the entire acquis com- munautaire before their accession to the EU. Accordingly, acceptance of the acquis has been a key element of the pre-accession strategy with a tight monitoring on the part of the European Commission on the incorporation of the 31 negotiating chapters. In this context, the EU accession negotiations essentially aimed at sorting out speci c problems concerning the application of the acquis. This has been done through temporary derogations, ( nancial) Community assistance, technical adjustments to the Community legislation and/or the inclusion of safeguard clauses in the Act of Accession. These safeguard clauses are to be conceived as instruments of post-accession conditionality.325 As such, they operate as a kind of stick behind the door for the Commis- sion in addition to Article 226 EC. The transitional arrangements in general and the safeguard clauses in particular thus provide the means for differentiation between the new Member States and the EU15 in terms of application of the acquis.326 Whereas differentiation among the candidate countries was promoted as one of the key principles of the enhanced pre-accession strategy—and notwithstanding the bilateral nature of the negotiations—the EU’s negotiating practice revealed a tendency towards a more or less uniform treatment of the countries involved. This was particularly the case with regard to the core principles of the internal market. As such, results of negotiations with one country provoked a kind of spill-over effect on the negotiations with other countries. The competitive nature of the acces- sion process prevented a co-ordination of positions among the candidate countries, which only enhanced the asymmetrical relationship between

325 Inglis, “The Union’s fth Accession Treaty”, op. cit., footnote 221, p. 953. 326 A. Ott, “The Principle of Differentiation in an Enlarged ”, in: A. Ott, K. Inglis, (eds.), The Constitution for Europe and an Enlarging Union: Unity in Diversity, Groningen, Europa Law Publishing, 2005, pp. 105–131. 394 the accession negotiations: a post-factum analysis the negotiating parties. Only at the very end of the negotiations, when it was clear that a joint accession of ten countries would take place on 1 May 2004, the Baltic States formed a common front on the issue of direct payments for farmers and on production quotas for agricultural products. A similar co-operation among the three Baltic States proved impossible during the early stages of the negotiations. With regard to the external relations chapter, never insisted on the continua- tion of the Baltic Free Trade Area in case of a differentiated accession whereas and asked for a transitional arrangement on this point. The divergent negotiating positions of the three countries aroused political tensions, which clearly illustrated the paradoxes of the EU enlargement process. In particular, it became obvious that a strict legal and individual approach, which fails to take into account the wider geopolitical consequences of enlargement, potentially undermines the general objective of regional co-operation. The problems with regard to the extension of the Partnership and Co-operation Agreement with Russia and the compromise on Kaliningrad transit further revealed the limits of an enlargement methodology that nearly exclusively focused on the relationship between the EU and the candidate countries and largely excluded the countries left outside the enlargement framework. From this perspective, EU enlargement in general and the EU acces- sion negotiations in particular increased the legal and transactional boundaries between new EU Member States and outsider states.327 The forced termination of the free trade arrangements with Ukraine and the introduction of visa regimes for Russian borderland residents illustrate this point. In general, the Baltic States secured important and speci c transi- tional arrangements or technical adjustments in the elds of sheries, taxation, energy and environment. In combination with the general tran- sitional measures on the free movement of workers, the free movement of capital and agriculture—and taking into account some minor tran- sitional arrangements in other areas as well as the postponed entry of the new Member States in the eurozone and the Schengen area328—the

327 In this respect, reference can be made to the theory of Michael Smith, who identi es geopolitical, legal, cultural and transactional boundaries to determine the EU’s relations with outsider states. See: M. Smith, “The European Union and a Changing Europe: The Boundaries of Order”, 34 Journal of Common Market Studies 1 (1996), pp. 5–28. 328 The Baltic States joined the on 21 December 2007 together with the , , , , and . Full participation