Network member Frank Emmert (Indiana-McKinney) has let us know about a new article he recently published with Siniša Petrović (Zabreb) entitled “The Past, Present, and Future, of EU Enlargement.” The article is available from the Fordham International Law Journal and can be downloaded in full here, along with Frank’s other publications. The first paragraph is below:
From the founding days of the European Coal and Steel Community ("ECSC') in 1952, European integration has been designed as an open access model. At least in principle, every European State has the right to join. And in spite of the somewhat mixed reviews the European Union (EU) has been getting from its citizens over the years, it has shown a remarkable and sustained attractiveness to those not yet among its members. The main reason is, undoubtedly, that the EU has been successful in its primary mission, namely to bring peace and prosperity to a continent that was regularly torn apart by violent conflict ever since historic records exist. At first, only Western Europe was able to benefit but right when the impact of European integration on peace and prosperity in the region was beginning to be taken for granted, the challenge of expanding the mission to all of Europe presented itself. As we all know, the EU has meanwhile grown from 6 Western founding members to 28 current members and now encompasses virtually the entire geographic range of Europe. One additional country managed to sneak in through the backdoor without a formal accession procedure. Only two countries, Norway and Switzerland, have ever decided against accession, and only one territory, Greenland, has ever decided to leave the EU. No fewer than eight more countries are right now at various stages of accession preparation, and several more may yet decide to apply. Thus, enlargement is an ongoing story and the map of the EU will still be re-drawn several more times before its final borders can be determined. At the same time, the procedure for accession negotiations is regulated only in very superficial terms, which have remained largely unchanged over time. Yet, the procedure has evolved considerably in practice. As always, when the law on a particular question provides only a basic framework, the discretionary powers of those who apply the law greatly increase. The Council and the Commission have not shied away from making use of those discretionary powers. It is the purpose of the present article to show how individual Member States, or rather individual leaders of those Member States, via the unanimity requirement in the Council, were able to impose their views on enlargement in the early years. Secondly, we will show that this power has shifted noticeably to the Commission as the number of Member States has grown. Nevertheless, strong individual leaders in the Member States can still put their mark on the timetable and conditions of enlargement. There just seem to be fewer of those distinguished leaders today. Thirdly, we try to predict the use of discretionary powers in ongoing and future accession negotiations. To that end, we analyze how accession negotiations were conducted with the Central and Eastern European Countries ("CEECs") which joined in 2004 and 2007, how and why the approach was modified for the negotiations with Croatia, and how and why the strategy is already different again for the next group of countries.