Abstract

This paper examines the EU accession process. Due to the small size of their internal markets and their limited economic potential if they remain on their own, countries on the periphery of Europe have no real choice but to pursue some form of integration with the EU. But the process of integration may merely result in the entrenchment of their marginal status. This paper examines the agreements of the most recent enlargement in discussing how it differed from previous ones. It explores the link between international law and underlying social norms and suggests a possible future for Europe increasingly fractured along socio-economic lines. It lays out some of the paradoxes of the accession process and develops all these themes through a discussion of Croatia's experiences in pursuance of integration. It concludes that countries in transition must tread a fine line between meeting externally imposed obligations and developing their own endogenous expression of their political and economic reforms.

Introduction

     The global economic and political order is undergoing a period of great transformation. The free movement of capital and the dispersal of production activities across borders and over continents is a challenge to the legal regime of the traditional nation-state with its territorial sovereignty. States are finding that they must adapt to new forms of transnational governance as their capacity to regulate the economic activities pertinent to their own well-being falls far short of the reach of the activities themselves. Therefore they embark on projects of cooperation in which markets are integrated and sovereignty is pooled. The most ambitious of these projects, of course, is the European Union.

     The EU was founded on the principle of solidarity, an organization of sovereignly equal states coming together for the common purpose of peaceful coexistence and economic prosperity. However, since the fall of the Berlin Wall, the EU has had to consider the acceptance of states, which in certain practical respects, are not sovereignly equal; states in a process of transformation and tremendous social change; states which basically have had to give birth to new institutions and reorganize their entire political and economic structure so as to better take part in the monumental shifts taking place in the world at large and not be left behind. The EU took up the challenge, and on May 1, 2004, the largest ever enlargement was accomplished with the accession of the ten newest member states.

     The way in which the EU undertook its enlargement - the law it used and the social norms and perceptions which underlay the law - illustrate that there has been a change in the EU's traditional approach towards solidarity. For the first time, in this enlargement the EU sought to influence fundamental aspects of policy and governance structures of the candidate countries by exercising its political power. This has tremendous implications not only on future enlargements but also on the nature of EU as it currently exists. Moreover, it speaks to the heart of the ongoing process of global economic and political integration and how that process is coloured by the uneven power relationships that exist among states even when it is carried out under the auspices of the most transparent and scrupulous law.

     A question to consider, then, is do these international agreements increase or decrease the existing imbalance of power? Another way to put it is that for historical reasons, some states are the locus of global economic and political power while others are marginalised on the periphery. Does alignment and cooperation between the centre and the periphery generally serve to undo the inequality among states or merely institutionalize strong states' control and weak states' peripheral status?

     This thesis will explore the accession process as it has evolved in the most recent enlargement. It will do so with specific reference to Croatia, a country which formally opened its accession negotiations with the EU in October of 2005. The thesis is organized into five general sections. The first is an examination of the accession process of the last enlargement itself, new principles that were introduced, the balance of obligations and concessions, and so forth. The second explores the underlying social norms that informed the agreements and treaties of the last enlargement. It discusses the view of Western Europe towards the East, the role trust plays in fostering integration, and the way in which Europe's self-defining sense of myth contributes to the EU's hegemonic tendencies. The third section is a speculative analysis of the economic future of the EU-25. It argues that as a result of the last expansion, the overall social model of the EU as one of redistribution of wealth and active compensation for market forces is unavoidably discarded. The fourth section, drawing from the previous three, examines remaining issues of accession. It explores the changing institutions and values of candidate countries and the efficacy of the accession process in spurring countries to reform themselves. Finally, the last section is a recounting of the particular experience of Croatia since independence on the road to accession. It will try to illustrate the principles laid out in the previous four sections in the case of this one small country in South East Europe.

Knocking at the Fortress Door:
Power, Values, and Reform Through the EU Accession Process*  

by
Michael Kaufman*

   Entrance into the EU has been the noncontroversial political objective of all the countries of Central and Eastern Europe since the fall of the Berlin Wall.  However, through the process of accession, these countries have often found that their impetus to join has overcome and dominated all other areas of social, institutional, and economic governance.  Countries seeking accession must tread a fine line between meeting externally imposed obligations and developing their own endogenous expression of political and economic reforms.

      In its enlargement to the East, concluded in May, 2004, for the first time the EU sought to influence fundamental aspects of policy and governance structures of the candidate countries by using its power of attraction as a foreign policy tool.  The process of accession was made more complex and greater conditionality was introduced for the greater degree of political control it afforded the EU vis-ŕ-vis the Central and Eastern European countries (CEECs).  In an attempt by Brussels to carve out 'model' member states, applicant states were made responsible for the fulfillment of various conditions that do not have to be fulfilled, as a matter of Community law, by the member states themselves.  The CEECs in their accession have been recreated as states, committed to processes of policy-making and policy outcomes that in many cases bear little or no relation to their domestic policy-making processes and prior policy decisions.  Thus, EU demands and membership criteria inevitably became the entire basis for determining policy agenda in applicant countries. 

      Law, in general, is deduced and derived from social norms.  In creating international law, states codify trans-boundary social precepts, cultural notions, and biases.  Law created for the express purpose of integration must almost inescapably, then, be hegemonic in nature as one community seeks to foist its perceptions onto the other.     

      The legal and administrative process of joining the European Union, symbolically reconstructed, became framed as an experiment in social learning, a transformation in which the acceding states were expected to shed something of themselves in order to become more 'fully European.'  Simple binaries such as West versus East persisted in the post-Cold War era as the unspoken central premise of EU expansion.  Conceptually, the transition of acceding states was deprived of its fundamentals.  The West was projected as a model accession countries must try to simulate.  The transition countries were seen (and, to a certain extent, saw themselves) as a blank sheet with no proper institutions or laws.   And the process of accession became a kind of relocation from Europe's East to Europe proper, a linear transition in which a candidate country either followed or failed to do so, divorced from any conception of continuity with what came before.  Accession of candidate states was recast not as a project of ongoing development, an extension and continuation of historical progress, and stemming endogenously from cultural traditions and strengths, but rather as a new, and necessarily harsh, beginning.    

       The delineation of 'Western' and 'non-Western' became (or revealed itself to be) a demarcation of 'freedom,' prosperity, and institutional superiority on one side and social and economic backwardness, corruption, and institutional void on the other.  Accession countries became forced to wrangle with their own self-conception in order to define themselves as more or less 'European.'  This is the great paradox of the EU accession process: while it is meant to represent a practical inclusivity, a progressive and open approach to society, this very notion of the EU as the sole arbiter of validity sets up an exclusionary condition.  EU membership is attractive to the CEECs because, symbolically speaking, it represents the ideals of the rule of law, democracy, and economic opportunity.  But from within the EU's defining mythology, these concepts are mere buzzwords, devoid of the practical definition that makes them transportable.  Integration, then, can be thought of as a process of joining two separate, though not mutually exclusive, sets of values; of informing one set with the other, and not, as it is more often treated, as a simple process of social learning in which the CEECs emulate and follow their more prosperous western neighbors.

       Moreover, to the extent that the CEECs lack the social goods that make membership attractive to them, they appear suboptimal and remain outside and foreign to the full symbolic meaning of membership.  The exclusionary nature of the EU's defining mythology leads to the erosion of social trust between new and old Member States.  Lack of trust hinders the production of common goods.  Therefore a Europe that is divided on the level of mythology and trust is likely to be characterized by economic imbalance and predation.   

       Indeed, as a result of the latest enlargements, the traditional social and economic model of the European Union, with its emphasis on countering market forces and the redistribution of wealth over borders and across regions, is necessarily discarded in favour of a neo-liberal model in which economic disparities are ameliorated through market forces alone.  Therefore economic differences that exist between East and West will tend to persist and become self-sustaining.  The ultimate purpose of this new direction is to make the EU a more competitive marketplace, but it marks a radical retreat from the EU's traditional principles of social and economic cooperation.  The integration of Central and Eastern Europe into the European economic system is being carried out so as to make production of the East more complementary to that of the West, rather than competitive, as between a metropole and its colonies.  The competitiveness of poorer countries is derived mainly from lower wages.   

       Thus, when viewed from a legal, social, and economic perspective, a single line of thought emerges from an examination of the EU accession process.  In terms of its legal agreements, the Big Bang enlargement of 2004 differed from earlier enlargements by the asymmetry of the accession process and the dynamic of control exerted by the EU over the acceding states.  Socially, this was built off of Western Europe's sense of the East's fundamental Otherness, stemming in part from socio-economic differences.  Economically, this may lead to the entrenchment of these socio-economic differences and the fragmentation of Europe.  It is the argument of this thesis that this is the fundamental process at work.  But there are also many other aspects of enlargement that must be examined.  In principle, enlargement is a blind process.  There are forces of societal transformation and integration at work of which no one is in control and couldn't possibly be. 

       The accession process itself is, in many ways, antithetical to democracy, based as it is on the one-way flow of directives from the EU to the candidate countries and involving only a small range of societal actors.  The asymmetry between the EU and the candidate states also means that political elites in acceding states have only limited control over the institutional changes they have undertaken to effect.  The adoption of EU legislation and the fulfillment of obligations is a technocratic process, directed by a small group of officials and taking place largely outside the realm of public discourse.  The EU's efforts to promote democratic development are at odds with the incentives created by the accession process itself, where the EU gives priority to efficiency over legitimacy, which leads to questions about the potential of the EU to export its own democratic deficit.  

       This illustrates well the fractious potential of progress as seen as advancement towards some external ideal.  This is particularly true for small countries whose room to manoeuver vis-ŕ-vis the EU is more limited and for whom the relative costs of adjustment are much higher.  More than their political independence, what small countries risk giving up is the ownership of their own policy directions, and their sense of themselves as a unique people.  They become divided, both ideologically and in economic terms as some benefit from free market reforms much more than others. 

       Croatia's recent history as it has embarked on the path towards European accession is a case in point of many of these issues.  Croatia's first step towards membership was the signing of its Stability and Association agreement (SAA) in October, 2001, through which it assumed the obligation to fully adopt the acquis communitaire, the enormous body of laws that EU Member States have previously agreed upon.  The EU's financial aid to Croatia (through the CARDS programme), though it represented support for the implementation of the SAA, was geared solely towards areas the EU considered politically important - democratization, the return of refugees, fighting organized crime, and the security of borders - and in that sense imposed a high degree of political arm-twisting on Croatia's policy makers which they were forced to accept in pursuance of their goal of further integration with the EU.      

       In accepting its obligations, with little in return but the promise of increased cooperation with the EU to come, Croatia began the delicate task of balancing between being more open to greater political and economic integration and condemning itself to diminishing control over its own policy choices.  Associated states, legally responsible for upholding directives from Brussels but with no say in crafting them, partially surrender their sovereignty without the benefit or opportunity to pool their sovereignty with other states.  This invokes a situation of de facto satellization and creates a relationship towards other states of entrenched marginalization, like that of a protectorate.  As a natural consequence of its interactions with Europe, Croatia began to give up control of its natural resources and domestic economy while simultaneously turning over its sovereignty to the EU.     

       Croatia will not have an easy time meeting the conditions of accession.  As the EU expands, the internal market grows.  The removal of trade barriers increases competitive pressures in the EU, and so meeting the economic conditions for membership becomes even harder.  In addition, Croatia will have to align with more acquis than the other new members in the pre-accession period.  Moreover, if Croatia's entrance as a member were in any way to decrease the decision-making power of some existing members, it would be very hard to achieve the needed unanimity.  This implies that if it is admitted, Croatia's political voice will be basically inconsequential.     

       By this analysis, the best outcome for Croatia could be achieved not by rushing headlong towards membership, but by delaying the acceptance of more political obligations, slowing the opening of its economy, while undertaking widespread domestic reforms to strengthen the competitiveness of its industries and increase the transparency of its political institutions.  These reforms should be undertaken not at the behest of the EU nor for the sake of appearing more 'European,' but rather for the sake of the country itself, to strengthen what will inescapably be its tenuous position in the future EU.  A protracted period of reform before entrance may in fact be the only way to ensure the economic prosperity and multi-level institutional development associated with membership.   

       Membership in the EU offers many advantages, but it is not a panacea.  Member states will receive more aid than the states left outside.  They will also benefit from inclusion in the Single European Market (and consequent increased attractiveness as a destination for foreign direct investment), while those states left outside will still be subject to the possible use of contingent protection (anti-dumping and safeguard measures) and rules of origin regarding trade with the Union.  But if anything, new member states will find it increasingly difficult to defend their rather specific interests within the general framework of the Union.  Until relatively recently in the EU, national interests have been secured by consensus decision-making and the possibility of an opt-out.  But since the adoption of the Single European Act in 1995, the number of issues decided by the Council of Ministers has steadily increased.  Thus the autonomy of national economic policies is rather significantly impaired.  The arithmetic of voting makes it very difficult for a small state to decisively influence the outcome of policy, and with the failure of the Constitution Treaty, the process is even more uncertain.  A state that has given up much of its economy to stronger external interests and bended willingly to political demands without finding its own home-grown style and method of reform during the accession process will not find its interests easier to defend from within the Union.

       Thus it is even more important that countries prepare themselves well before accession.  It is necessary that they have a sufficient degree of economic strength and independence to resist the hegemonic influence of stronger external interests, and economic strength is built off of institutional stability and democratic liberties.  However, this process must not merely be one of self-protection or mimicry of an externally-imposed model.  The real task and challenge for a state seeking accession is to give expression from within its own cultural, political, and economic circumstances to the ideals of rule of law, democracy, and economic opportunity that make membership in the EU truly worth pursuing.  For this, it is necessary for a country to draw upon its own strengths, to learn to see not only where it can progress but also to appreciate the weight of its traditions, to find and develop its inherent legitimacy as a society, in partnership with the other societies of Europe.  A country must first find and produce something great of itself before it can hope to share in the greatness of others.

* This piece is a summary of  an LLM (Masters of Law) thesis submitted for a degree in International Economic Law from the University of Kent's Brussels School of International Studies, completed in September, 2006.

(op-ed) The whole thesis is in the attachment below (pdf file).