Brussels – There was a missing piece in the European Commission’s proposal on pre-enlargement policy reviews, which was not made public and remained exclusively in the hands of the 27 national delegations: a non-paper setting out draft legal texts for the safeguard clauses to be included in future Accession Treaties, on which the Council will ultimately have the final say.
The New Union Post had access to the document, which is “provided for illustrative purposes in order to facilitate discussions” among the 27 member states. Discussions have already begun at the 28 October Coreper (Committee of Permanent Representatives) meeting, given the “time sensitivity of progressing consideration of safeguards,” particularly those to be “included in the Draft Common Position for Chapter 35 (Other Issues) for Montenegro, which the Commission will submit shortly”.
The non-paper is divided into seven chapters: one for each of the existing safeguards to be extended, three covering the general monitoring clause, the postponement clause and the Schengen clause – which has already been used in the recent past but is to be strengthened – and one addressing the new institutional safeguard clause.
The institutional safeguard clause
The real innovation, as had already become clear from the Commission’s communication, is the new institutional safeguard clause, which could be activated if a new member state is “in serious breach of one or more values” enshrined in Article 2 of the Treaty on European Union or of the principle of sincere cooperation referred to in Article 4.
The clause – which provides for “all appropriate measures” – could be activated for a period of “up to fifteen years,” either on the Council’s own initiative or at the request of one third of the member states, provided that the request is duly reasoned. It would be based on a Commission proposal, which would enter into force “within two weeks” of its adoption by the Commission, unless the Council decided to reject it by a qualified majority. If the text were amended by the Council, the two-week period would start from the date of the amendment.
The new member state concerned would have the opportunity to submit its observations within a period of at least two weeks, “unless otherwise justified by the seriousness of the situation.” The safeguard clause could also be invoked before accession, with the measures adopted entering into force on the date of accession, “unless they provide for a later date.”
The measures falling under this safeguard clause should be “proportionate to the nature, gravity and effects of the breaches identified and not result in a duplication” of measures already provided for under other procedures. They should be maintained “no longer than strictly necessary” and lifted once the situation has been “duly remedied.” However, the measures could remain in force for more than fifteen years, “as long as the situation persists.” In cases of “particularly serious breaches,” the suspension of voting rights could be authorised, while the obligations arising from the Treaties would remain binding.
Economy, Internal Market, security and justice
The Commission also proposes to revisit the three existing sectoral safeguards used in previous enlargements, covering the economy, the Internal Market, and the area of freedom, security and justice. These provisions were all included in the 2005 Accession Treaties of Bulgaria and Romania and the 2012 Accession Treaty of Croatia, which provided for a three-year period during which “protective measures” could be applied in the event of significant risks to the Union’s common interests.
It will be up to the Council to decide whether to extend the period during which such measures can be taken to address the situation in the new member states. Moreover, taking into account the Commission’s assessment and acting on a proposal from the member state concerned, the Council may decide, by qualified majority, to extend the period of application.
The economic safeguard clause addresses “serious and liable” difficulties in any sector of the economy, as well as difficulties that could bring about a “serious deterioration in the economic situation”. The Internal Market safeguard clause should apply when a new member state fails to fulfil commitments undertaken in the context of the accession negotiations, resulting in a “serious breach” of the functioning of the Internal Market or “a threat” to the EU’s financial interests. The safeguard covering the area of freedom, security and justice would apply in cases of “serious shortcomings or any imminent risks of such shortcomings” in the transposition or implementation of Title V of the Treaty on the functioning of the European Union (TFUE).
The economic safeguard clause would be activated by the Commission “by emergency procedure”, at the request of the member state concerned. The Commission would act “within five working days” in the event of “serious economic difficulties”. The Internal Market safeguard could be activated by the Commission following a “reasoned request” from any member state or on its own initiative. The new member state concerned would have at least two weeks to submit its observations, and the safeguard could also be invoked before accession. The same procedure would apply to the safeguard covering the area of freedom, security and justice, but the Commission would first have to consult the member states.
All the measures should remain in place only for the period of time “strictly necessary” to address the situation. The economic safeguard clause may involve derogations from the rules of Union law, with priority given to those measures “as will least disturb the functioning of the Internal Market.” In this respect, the measures should be “proportionate” and not be invoked “as a means of arbitrary discrimination or a disguised restriction on trade” between member states. They should be adapted “as appropriate” as commitments are fulfilled and lifted “when the relevant commitment is implemented.” In the area of freedom, security and justice, the temporary suspension of the application of relevant provisions and decisions should not prevent close judicial cooperation from continuing.
The general monitoring and the postponement clauses
The Commission proposes to strengthen two other existing safeguard clauses: the general monitoring clause, included in Croatia’s Accession Treaty, and the postponement clause, included in the Accession Treaties of Bulgaria, Romania and Croatia.
As the Commission is tasked with “closely” monitoring all commitments undertaken by the new member state during the accession negotiations, the Council is asked to decide on several matters concerning the general monitoring clause: what type of monitoring report should be submitted to the European Parliament and the Council; in which season and year the report should be presented for each new member state; which negotiating chapters and commitments should be given “particular focus”; and how frequently assessments should be carried out in the run-up to accession.
If “issues of concern” are identified during the monitoring process, the Council may adopt “all appropriate measures” by qualified majority, acting on a proposal from the Commission. These measures shall remain in place “no longer than strictly necessary” and shall be lifted by the Council, following the same procedure, once the issues have been “effectively” addressed.
The postponement clause applies in the context of the accession negotiations when there is “clear evidence” that the state of preparations for the adoption and implementation of the EU acquis in the acceding country “is such that there is a serious risk of being unprepared” to meet the requirements for membership by the date of accession “in a number of important areas.” The Council should decide which decision-making arrangements to apply, how long to postpone the date of accession for, and under what conditions the decision should be reassessed.
The Schengen clause
The Schengen clause makes clear that EU membership does not automatically entail full participation in the Schengen Area, and it has been a feature of EU enlargement policy for the past twenty years.
The provisions of the Schengen acquis are integrated into the EU framework and, from the date of accession, the new member state must use “all appropriate means at its disposal and take all necessary measures” to prepare for their application, refraining from adopting “any measure or amending its legislation in a manner that could jeopardise, delay or otherwise compromise” this process.
The decision rests with the Council, acting on a proposal from the Commission, which must determine whether all the necessary conditions have been met and consult the European Parliament. The Council is asked to decide on the type of decision-making arrangement involving its members representing the countries fully participating in Schengen and the representative of the new member state.
From the date of accession until a final decision on Schengen participation is taken, the Council may also decide on the application of certain legal acts, provided that the necessary conditions for their application have been met, under a decision-making procedure yet to be determined.
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