Brussels – The procedure for obtaining EU candidate status and opening accession negotiations is relatively straightforward, despite some ambiguity as to what qualifies as a “European State” eligible to apply. By contrast, it is far less explicit how an application for EU membership can be terminated.
First of all, a candidate country may withdraw its application at any point in the process. The only precedent is Switzerland, which did so in 2016, while both Norway and Iceland have only suspended their applications, in 1994 and 2013 respectively. But what about a country that still wishes to remain a candidate for accession? Can the EU decide not to regard that candidate as such and revoke its status?
“There is no straightforward legal answer,” says Christophe Hillion, Professor of European Law at the University of Oslo, speaking to The New Union Post about the procedural options that might be available.
In cases of serious backsliding in respect for EU democratic standards and the rule of law – requiring a firm response – “a distinction” could be drawn between a candidate country that has already opened accession negotiations and one that has not. In that regard, Türkiye and Georgia may represent the clearest examples of the two distinct paths that could be followed.
Suspending accession negotiations
For a candidate country that has already opened accession negotiations a suspension of the process can be triggered on the grounds of backsliding or stagnation, “in line with the procedure that more recent negotiating frameworks include,” Hillion notes.
These procedural requirements, embedded within each negotiating framework, “have evolved” over time. In 2012, when Montenegro began accession negotiations, any decision to suspend the process required a qualified majority vote in the Council (55% of member states, representing at least 65% of the total EU population). Ten years later, under the negotiating frameworks for Albania and North Macedonia, the rules were revised to a reverse qualified majority – meaning that a suspension takes effect unless the Council, by qualified majority, explicitly votes against it.
Looking closely at the terms of the negotiating frameworks, Professor Hillion highlights that “there are no real time limits envisaged.” This means that, as long as the situation in the candidate country remains unresolved, the suspension can “simply continue.” In other words, once triggered, this mechanism halts the negotiations “for as long as necessary,” and, by extension, the entire accession process.
However, caution is required. This does not necessarily suspend a country’s eligibility as a candidate altogether. To terminate the accession process for candidates already in the negotiating phase, Professor Hillion speculates that something “more drastic, more formal, perhaps more demanding” would be required than merely a reverse qualified majority vote. More likely, it would draw on the basic procedural requirements set out in Article 49 of the Treaty on European Union (TEU) – “namely a Council decision to be taken, I suppose, unanimously.”
Terminating EU candidate status
What alternative arrangement might apply to a candidate country that has not yet opened accession negotiations, such as Georgia? One possibility would be to follow an approach similar to that used when granting candidate status, but this time “for the Council to change its mind.”
Under Article 49, the European Council responds politically to an application from a potential member, recognising by consensus the applicant’s eligibility. The Council of the European Union is then required to decide unanimously whether to grant candidate status and open accession negotiations. If negotiations have not yet begun, one option could be “a decision terminating the whole process that was activated once the applicant was regarded as eligible,” Professor Hillion says.
“I am not suggesting that all this is possible, but, in procedural legal terms, this is how I could see it happening in principle,” he cautions.
Not turning the tables
In the case of the two countries whose accession trajectory has stalled owing to developments on the ground – Georgia and Türkiye – no formal decision has been taken to revoke their candidate status.
More precisely, in the history of the European Union, there has never been a case in which an EU member state formally requested that a particular country no longer be considered eligible for membership. By contrast, past precedents concern situations in which eligibility was denied at the outset. This occurred with Morocco‘s application in 1987, but especially when France exercised its veto to prevent the Council from opening the accession process with the United Kingdom in 1963 and again in 1967.
“In any case, we should not turn the tables,” Professor Hillion warns, stressing that an application for membership “is based on the willingness of a third state to become part of the European Union.”
He further points to the broader legal approach that emerged in the context of the withdrawal negotiations with the United Kingdom, when the Court of Justice of the European Union ruled that it is not for the EU institutions to terminate a member state’s membership. If that reasoning were to be extended to candidate countries, “it is not for the EU to revoke candidacy,” he argues. What Brussels can do is suspend negotiations in accordance with the procedure laid down in the negotiating framework, “but it is difficult to terminate the candidacy.”
For such a step, the Council would require “a very elaborate track record” of backsliding before concluding that a candidate should no longer be regarded as eligible for membership. “That might explain why they would opt for suspension rather than full termination,” particularly given that a change of government could lead to a return to “a more acceptable situation”, both politically and constitutionally. Not to forget that, were candidacy to be revoked, the former candidate would have to reapply.
