How to Avoid Another Botched EU Enlargement by Sticking to the Rules

Is the European Union once again about to duck the challenge of constitutional reform? Even the imperative of Ukraine’s accession does not impel the EU to strengthen its governance. The leaders talk about the need for widening and deepening “in parallel”, but in practice do nothing that could upset their habit of muddling through.

The European Parliament has made formal proposals to change the treaty, the most important of which is to switch the decision-making procedure of the dysfunctional passerelle clause [Article 48(7) TEU] from unanimity to QMV. The European Commission equivocates. The European Council simply sits on the dossier, looking for excuse after excuse to avoid treaty change [Article 48(2)].

Worse, one hears of a new idea gaining traction in Brussels that mixes bad law with bad politics. The ruse is to use Article 49 TEU, the accession clause, to prepare the EU for enlargement instead of Article 48. I explain here why this approach will neither help Ukraine nor salvage the Union’s self-respect.

What the treaty says

One may assume that the authors of the treaties drafted two adjacent clauses because the articles mean two different things and should be used for two different purposes. Article 48(2-5) tells us how to initiate and make amendments to the treaty according to an ordinary revision procedure. Article 48(6-7) provides two exceptions to the ordinary procedure — the simplified procedure and the general passerelle clause — which are very specific and very limited. The parameters around the simplified procedure were confirmed by the Court of Justice in Pringle.

Article 49 tells us how a new country shall join the Union. It says that the accession treaty with the new member state may make “adjustments to the Treaties on which the Union is founded, which such admission entails”. Note that the “adjustments” of Article 49 are different from the “amendments” of Article 48. This is not a mistake. Amending the treaties to change the powers of the institutions or the competences conferred on the Union is a big constitutional thing, whereas adjusting the treaties merely to cope with a new member state has an air of automaticity about it. Technical measures will be needed to adapt the acquis communautaire to an incoming state.

Giulia Rossolillo has analysed helpfully what the Court of Justice has had to say about the meaning of “adjustments” in acts of accession. The Court holds that “the adaptation measures provided for by such acts, as a general rule, authorise only adaptations intended to render earlier Community measures applicable in the new Member States, to the exclusion of all other amendments” (para 46).

Hence, Article 49 is circumscribed just as much as Article 48. This is normal. In the same way, Article 50 TEU is also very specifical about how to secede from the Union: as the British found out the hard way, it is not possible to change the treaties to merely to loosen the ties that bind a member state.

When Britain, Ireland and Denmark joined the EEC in 1973, a new chapter on common fisheries policy was added to the Treaty of Rome (Chapter 3, Title I). That was because all the candidates, including Norway, had large and important fishing industries. But at that stage the constitutional character of the Union was much less formed than it is today. And the procedures for the intergovernmental conference (IGC) that agreed accession, followed by ratification in every member state, was similar to the process of general treaty revision (Articles 236 and 237 TEC). Nowadays, this is no longer the case.

The Treaty of Lisbon dramatically altered the EU’s constitutive process to the extent that the member states are no longer the exclusive “masters of the treaties”. The European Parliament was accorded the right not only to initiate amendments of the treaty but also to insist that a Convention is called to deliberate on the matter before the IGC takes place. Lisbon went a significant way to democratise the way the treaties are amended, whereas as far as enlargement is concerned, Parliament’s role is limited to a vote of consent. To try to avoid the use of Article 48 to change the treaties, therefore, by using Article 49 would be a backwards step for the polity’s emerging democracy.

Taking a short cut

A recent paper on Ukrainian accession by the Bruegel think tank proposes to do just that. The authors want to hitch Ukraine’s accession to new procedures that would suspend the voting rights of member states in breach of the rule of law and introduce compliance tools not only for Ukraine but also retrospectively for existing member states. They ignore the fact that the introduction of a novel procedure would clash with the existing rule of law provision of Article 7 TEU. They assert:

An alternative route to achieve institutional reforms for protection of the rule of law and prevention of misuse of EU funds would be to include them in the accession treaty that the EU signs with Ukraine. Accession treaties are intergovernmental agreements that have the force of primary law in the EU, so they can be used to institutionalise important changes. This would be a faster and less politically complicated method than re-opening the EU treaty if the EU wants to create powerful sanctions, particularly the suspension of a member state’s voting rights, or its funds from the EU budget and other financing mechanisms. Moreover, the power to suspend the rights of the new members could also be applied to existing members through the accession treaty.

This seems naïve. Putting the Ukraine accession treaty into one package with problematical institutional changes will be bound to heighten the risk that its ratification will be blocked by one or other member state.

The Bruegel report also proposes to apportion Ukraine’s seats in the European Parliament, possibly by increasing the overall size of the House, through the Article 49 accession treaty. However, seat apportionment between member states of various sizes is a very delicate matter currently under negotiation as the Parliament tries to fulfil its treaty-based duty to come up with a mathematical method for seat distribution that is objective, fair, durable and transparent. The cap of 751 MEPs, moreover, was prescribed by the Lisbon IGC under Article 14(2) TEU: expanding the size of the House beyond that is bound to impact adversely on the efficiency of its internal organisation.

It is a mistake to treat Ukraine on its own outside the context of the more widespread enlargement of the Union. Institutional changes invented in a hurry to cope with Ukraine’s exceptional situation and particular need to enter the EU quickly will have a knock-on effect on the enlargement prospects of every other candidate state — Albania, Bosnia Herzegovina, Georgia, Moldova, Montenegro, North Macedonia, Serbia and Turkey — as well as of any prospective future candidates such as Iceland, Norway, Switzerland or the UK.

On 20 March, the Commission published a communication on its pre-enlargement strategy. President von der Leyen refuses to back the Parliament in wanting to open the treaties under Article 48 to amend the passerelle clause. Instead, her Commission states:

So far, no consensus has been found on how best to approach this issue. While some call for a reform of the current EU Treaties, in particular the European Parliament, others suggest specific adaptations through the activation of the untapped possibilities enshrined in the Treaties. Finally, some argue that the Treaties were designed to be ‘enlargement proof’. While the Commission has indicated its support to Treaty change, ‘if and where it is needed’, it believes that the EU’s governance can be swiftly improved by using to the full the potential of the current Treaties.

Heaven only knows what that means. As we have already said, the passerelle without QMV is unworkable. Is the Commission falling into the trap of Article 49? The General Affairs Council, for its part, which is populated by too many mediocre politicians masquerading as “pro-Europeans”, is clearly tempted down that route.

Those who care for the well-being and good governance of an enlarged European Union must continue to argue for legitimate constitutional reform. Neither the balance of power between member states nor the interinstitutional balance at the heart of the system of EU governance must be tampered with by an abuse of Article 49. In the end, continuing refusal to undertake federal reform in the proper way will render the Union ungovernable. Why it could be in Ukraine’s interests to join a Union that does not work well is beyond comprehension.