IN-DEPTH ANALYSIS Requested by the AFCO committee Constitutional Challenges of the Enlargement: Is Further Enlargement Feasible without Constitutional Changes? Policy Department for Citizens' Rights and Constitutional Affairs Directorate General for Internal Policies of the Union EN PE 608.872 – March 2019 Constitutional Challenges of the Enlargement: Is Further Enlargement Feasible without Constitutional Changes? IN-DEPTH ANALYSIS Abstract This in-depth analysis, commissioned by the European Parliament’s Policy Department for Citizens’ Rights and Constitutional Affairs at the request of the Committee on Constitutional Affairs, recalls the earlier debates linking the enlargement of the Union with the need to adapt its constitutional framework, and discusses whether further constitutional reforms, involving Treaty change or not, are necessary when a further enlargement of the Union will take place in the near future. It focuses on three main themes: the Union’s decision-making capacity; forms of differentiated integration; and the question on how to ensure respect by all member states for the Union’s fundamental values. ABOUT THE PUBLICATION This research paper was requested by the European Parliament's Committee on Constitutional Affairs and commissioned, overseen and published by the Policy Department for Citizen's Rights and Constitutional Affairs. Policy Departments provide independent expertise, both in-house and externally, to support European Parliament committees and other parliamentary bodies in shaping legislation and exercising democratic scrutiny over EU external and internal policies. To contact the Policy Department for Citizens’ Rights and Constitutional Affairs or to subscribe to its newsletter please write to: [email protected] RESPONSIBLE RESEARCH ADMINISTRATOR Roberta PANIZZA Policy Department for Citizens' Rights and Constitutional Affairs European Parliament B-1047 Brussels E-mail: [email protected] AUTHOR Bruno DE WITTE, Professor of European Union law, Maastricht University & European University Institute LINGUISTIC VERSION Original: EN Manuscript completed in March 2019 © European Union, 2019 This document is available on the internet at: http://www.europarl.europa.eu/supporting-analyses DISCLAIMER The opinions expressed in this document are the sole responsibility of the author and do not necessarily represent the official position of the European Parliament. Reproduction and translation for non-commercial purposes are authorised, provided the source is acknowledged and the publisher is given prior notice and sent a copy. Constitutional Challenges of the Enlargement: Is Further Enlargement Feasible without Constitutional Changes? ____________________________________________________________________________________________ CONTENTS 1. THE CONSTITUTIONAL CHALLENGES OF ENLARGEMENT – THE EARLIER STORY 8 1.1 The Question of the Union’s Decision-Making Capacity 9 1.2 The Question of Organising Differentiated Integration 11 1.3 The Question of Safeguarding the Union’s Fundamental Values 14 2. A CONSTITUTIONAL AGENDA FOR THE NEXT ENLARGEMENT 16 2.1 Decision-Making Capacity: Abandoning the Unanimity Rule for Council Decision-Making and for Treaty Revisions? 16 2.2 More Flexibility for Differentiated Integration? 20 2.3 More Effective Protection for Fundamental Values? 25 2.4 Conclusion and Policy Recommendations 28 3 Policy Department for Citizens' Rights and Constitutional Affairs ____________________________________________________________________________________________ EXECUTIVE SUMMARY Background Despite the new impetus given to enlargement by the EU institutions in 2018,1 there is still a lingering doubt as to whether further enlargement of the Union will happen any time soon or whether, instead, the Western Balkan states find themselves on a ‘slow train to nowhere’.2 Their adaptation to the EU acquis is a slow-moving process, and political conditionality continues to create major obstacles to their accession. If and when the next enlargement occurs, it will, most likely, not include all the current candidate and potential-candidate countries, but only a few among them. Nevertheless, it makes sense for the EU institutions to reflect on the perspective of further enlargement, not only from the point of view of the economic and political readiness of the prospective new members, but also from the point of view of the European Union’s absorption capacity. In its enlargement policy paper of February 2018, the Commission refers to the need for the Union to be ‘stronger and more solid, before it can be bigger’, and it mentions in particular the need to shift from unanimity to qualified majority voting in the Council in areas such as foreign policy and the internal market, and also the need to strengthen the enforcement of the rule of law in the Union.3 Article 49 EU specifies that accession treaties may make ‘adjustments’ to the existing Treaties upon which the EU is based, and accession treaties have, so far, only made rather minor adjustments to the existing rules, such as providing for the representation of the new member states in the Council, the Parliament and the other institutions. Further-reaching changes were excluded, on the basis that the acceding countries should accept the entire acquis communautaire, subject only to transition phases in specific policy areas. It is an open question whether the ‘adjustments’ mentioned in Article 49 could also imply other changes to the operation of the European Union, which are not directly related to the accession of new states, such as the issues mentioned by the Commission in its paper of February 2018. This question is meaningful for the European Parliament (EP). Since the EP has the power to give or deny its approval to accession treaties, it could make its approval conditional on the making of some constitutional adjustments to current EU law. Even if one assumes that the ‘adjustments’ mentioned in Article 49 should be strictly interpreted and do not include Treaty changes that are not directly related to accession, the EP could still decide to make a political linkage between its approval of the accession treaty and the adoption of separate but contemporaneous changes to the EU’s institutional system. From this point of view, it becomes meaningful for the EP to reflect on how the future accession of new member states could be used as an occasion for the improvement of the EU’s constitutional edifice. The present in-depth analysis aims at contributing to that reflection and does so in two parts, corresponding to the two chapters of the study, whose main content is described below. 1 Communication from the European Commission, A credible enlargement perspective for and enhanced EU engagement with the Western Balkans, COM(2018) 65 of 6 February 2018. 2 J. O’Brennan, ‘On the slow train to nowhere? The European Union, ‘enlargement fatigue’ and the western Balkans’, 19 European Foreign Affairs Review (2014) 221. 3 A credible enlargement perspective (note 1 above), p.2 and 15-16. 4 Constitutional Challenges of the Enlargement: Is Further Enlargement Feasible without Constitutional Changes? ____________________________________________________________________________________________ Aim The first chapter of the study recalls the earlier debate linking the enlargement of the Union with the need to adapt its constitutional framework. That debate was particularly lively in the years leading to the large-scale enlargement of 2004, and was facilitated by the fact that no less than three Treaty revisions took place in the years preceding the enlargement (Treaty of Amsterdam, Treaty of Nice, and the Constitutional Convention leading eventually to the Lisbon Treaty). On each of these occasions, the need to adapt the EU’s constitution to the forthcoming enlargement was a major issue in the political and legal debate. Three main themes emerged in that debate: the need to preserve the EU’s decision- making capacity after enlargement; the question whether and how to introduce forms of differentiated integration; and the question on how to ensure respect by all member states for certain fundamental values. After recalling those debates, the study highlights the constitutional changes that were accomplished in response to the pending enlargement, and also mentions the ’missed opportunities’, i.e., the constitutional adaptations that could have been made at the time but were omitted. The latter point is relevant for the future. The next enlargement may well involve a small number of countries (possibly only one or two); however, the need for constitutional adaptation will not just arise from the fact that one or two new countries would join the EU, but also from the accumulated deficit in adjusting the EU’s constitutional system to the huge increase in membership that has happened over the years. In the second chapter of the study, the analysis becomes forward-looking. The three main themes discussed in the first chapter are taken up again. Current reform ideas are discussed from the point of view of their legal feasibility and their constitutional acceptability, and a range of possible and desirable reforms are put forward, involving either changes of the Treaties or institutional innovations that can be made under the current Treaties. The European Parliament has advocated some of these reforms in recent resolutions; the process of enlargement could give more force to the EP’s constitutional design preferences if those preferences are carefully