The Jean Monnet Program

Professor J.H.H. Weiler
European Union Jean Monnet Chair

Jean Monnet Working Paper 15/01

Ulrich Becker

EU-Enlargements and Limits to Amendments 
of the E.C. Treaty

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The Jean Monnet Working Papers are published under the auspices of the
 Jean Monnet Program 
hosted at Harvard Law School from 1995 to 2001
and now based at New York University School of Law

ISSN 1087-2221
 Ulrich Becker

Abstract

The present enlargement process of the European Union not only creates hopes but also fears. Concerns about the stability of labor markets lead to the question whether the rights of workers from newly admitted countries could and should be restricted. This is the starting point of the essay which summarizes the transition regulations used in the context of prior enlargements of the European Community and the European Union. It investigates in detail the normative framework for these regulations, taking into account the reforms resulting from the Treaty of Amsterdam. Is it really true that amendments to the Treaties are not restricted in any way? Or do transition regulations need justification depending on how much they interfere with fundamental principles of the European Union?
Ulrich Becker*
EU-Enlargements and Limits to Amendments
of the E.C. Treaty
I. Introduction
II. Uniform application and flexible integration
III. The practice of transition regulations for accessions until now
IV. Admissible content of transitional measures
1. The normative foundation of an enlargement of the EU
2. The differentiation between accession-related and other treaty modifications
3. Total exclusion because of the creation of the internal market?
V. Limits for transitional measures
1. General principles
2. Specifications
VI. Judicial review
1. General objections
2. The search for a competence
VII. Conclusions

”Je tiens à dire que notre Communauté n‘est ni une petite Europe, ni une Communauté restreinte. Ses limites n’en sont pas fixées par nous. Elles sont fixées par les pays mêmes qui, pour le moment, ne s’y joignent pas. Il ne tient qu’à eux que nos limites en soient étendues ...”
Jean Monnet
I. Introduction
1. For the fourth time in their history, the European Communities, now being part of the institutional framework of the European Union, have started an enlargement process. Several hopes and fears accompany this process, which is without precedent in terms of the number of states involved. On one hand, it is regarded as a ”unique, historic task to further the integration of the continent by peaceful means.” On the other hand, it will cause considerable costs and, some fear, a potential effect of destabilization. According to the Euro barometer of April 2001, the opinions are rather divided: 44% of EU citizens are in favor of enlargement but 35% are against it, and support levels vary significantly among the 15 Member States.
Beyond doubt, there are various problems to be solved indeed. A major problem is the adaptation of the institutional architecture of the European Union, another the reform of the common agricultural policy. Other questions are still open for debate. One concern is the free movement of workers and, to a lesser degree, the free movement of services. Germany and Austria especially, the Member States sharing a common border with some states belonging to the candidates for accession, call for transitional measures in this respect. The Commission seems to be prepared to propose such arrangements within the accession negotiations.
2. With respect to the present discussion on transitional measures for the free movement of persons, this paper aims to examine potential legal limits to amendments of the E.C. Treaty. As a starting point, I will show that the existing legal regime does not allow a non-application of the right to free movement on the basis of national citizenship, in other words, that there is not enough room for internal flexibility in this respect (infra, II.). Thus, external differentiation is needed. This leads to an overview of the transition regulations for accession until now (infra, III.). Next, I will answer the question what sort of transitional measures are admissible (infra, IV.) and investigate the limits existing for such measures (infra, V.). Finally, some short remarks will deal with the question whether the limits, assuming they were accepted, could be subject to judicial review (infra, VI.).
I should stress the fact that my observations are limited to answer legal questions of a more theoretical nature. I will not, despite their practical importance, deal with two other questions: (1) I will not debate the impact of migration on labor markets and social security in a welfare state in general and not try to assess the potential effects of Eastern enlargement on the situation in the Member States in particular. (2) I will leave aside the question whether more efficient measures to prevent negative effects of migration could be taken other than totally or partially inhibiting the free movement of workers.
II. Uniform application and flexible integration
1. Enlargement means, in principle, an extension of the applicability of an agreement in terms of space. Primary and secondary European Union and European Community law become applicable within the territories of the new Member States. And it leads, at the same time, to an extension with regard to the personal scope of the already existing legal provisions. The citizens of the entering Member States become citizens of the European Union. Since European Community law grants individual rights to all citizens of the Union, these rights will consequently also protect the citizens of the new Member States.
2. The rules of the E.C. Treaty about free movement of workers (art. 39 E.C. Treaty) give workers with EU citizenship the right to take up employment in all Member States. Under Art. 49, 50 E.C. Treaty, provider of services are allowed to bring with them the workers necessary for the realization of their activity in another Member State. The requirement of a work permit, especially with the intention of protecting internal workers, or any other limitations of access to the labor market, are infringements of these rights. Infringements of that kind cannot be justified by referring to the ordre public, reasons of public security, or internal limitations drawn from Community constitutional law, because they are founded on economic reasons and possess discriminating character.
3. Special forms of membership or the creation of a new space for integration in the sense of external differentiation, e.g. the concept of a Europe à deux vitesses, are still a topic of academic and sometimes political discussion but will presumably not have any impact on the present enlargement process. To a certain extent, possibilities of an internal differentiation are made possible by the Amsterdam Treaty under the provisions on closer cooperation. As far as the free movement of persons as a substantial part of the internal market is concerned, the preconditions required for the use of these provisions are rather strict. Thus, the mechanism of closer cooperation cannot be used to provide exceptions to the application of the basic freedoms in a legally admissible way.
III. The practice of transition regulations for accessions until now
1. As far as the distinction between internal and external differentiation is concerned, the legal conditions for transitional measures have not changed, and a glance back at the practice so far is still of interest. If one is looking at the enlargements of the Communities and the Union so far, certain patterns for accession-related transition regulations can be found. The Commission has worked, from the start of the first accession negotiations, on the assumption that only the conditions of the accession and the alterations made necessary to the Treaty by this accession were negotiable whereas, in principle, the regulations and aims of the Treaties had to be accepted by the new Member States without reservation. Heads of states and governments had already emphasized in 1969 that a condition for accession is the adoption of the Community law in force.
2. It is, therefore, not surprising that the arrangements for transitional measures in accession treaties were, in principle, of temporary character. The extent of the adaptation measures thought necessary varied according to the conditions in the accessing states, whereby the preparation for the accession itself naturally played an important role, but – as especially demonstrated by the last accession – the extent to which Community regulations already exist and, therefore, have to be taken over did as well. 
a) As to their protective aim, the transitional measures employed for the first accessions (United Kingdom, Denmark and Ireland in 1973) mainly served the new Member States. Those states received the chance to incrementally adapt their national regulations in some sectors to the Community law. However, at the same time, the Community was interested in conducting the adaptation in a way which would ensure that from then on the application of Community law would be uniform throughout the Community, as it was to be feared that otherwise all Member States could employ a divergence from Community law regulations – not intended nor backed up by Community law – to give national interests priority over the Community's interest in uniform application of the law.
At the subsequent accessions (second round: Greece in 1981; third round: Spain and Portugal in 1986) one cannot fail to notice that especially the transitional arrangements as to free movements of workers were, first of all, made in order to protect the old Member States. A special differentiation was agreed upon by extending the transitional period in favor of only one Member State, Luxembourg, thus conceding a kind of protection that was reaching beyond the arrangements made for the benefit of the other Member States. At the same time, however, it was argued that the restriction of the free movement of workers would help protect the interests of the new Member States. It was pointed out that, through migration of workers who usually possess above average qualifications, already existing regional problems within the accessing states would be worsened by a brain drain. In addition – taking into account the relatively high rate of unemployment in the old Member States – possibly complicated situations for the migrating workers would be created –  which seems to be a rather cynical argument, as it should justify the prohibition of migration on the pretext of knowing best under what circumstances an individual should take the decision to migrate or to stay in his country.
b) The temporary character of all transition measures was put into practice by limiting them to a certain period of time. Certain substantial conditions were, however, never part of the created exception. The usual approach to regulating transitional measures, therefore, provided an exemption from applying Community regulations that was unlimited in material respects but strictly limited as to timing. Deviations from this were only chosen very rarely.
In the case of "difficulties" or "considerable difficulties," protection measures reaching beyond the exemptions made in a particular case were admissible; this relates to the emergency protection clauses in many acts of secondary Community law whose activation always requires Community action. Such clauses, therefore, are hardly an exception and cover merely situations which are not imminent at the time of the accession but which are thought problematic in an abstract way.
A further deviation from the strict time limitation shows in the delayed application of the rules about free movement of workers after the accession of Portugal and Spain. It should be emphasized that in this case the Commission was explicitly called upon to monitor the transition process and that, in reaction to the results of this monitoring, the Council could correct the transition regulations in place.
c) The length of the transition periods varies according to the difficulties expected after a particular accession. It also differed depending on the economic and legal situation of the accessing states as well as according to special economic constellations in certain sectors, e.g. the labor markets in the old Member States. As shown especially by regulations for the third accession (Iberian enlargement), transition periods of approximately ten years are at present the upper limit.
d) In very rare cases the changes related to the accession treaties have possessed permanent character as no time limitations were employed. This is, with some exceptions, the case for the fishery sector, for the importation of certain goods from Commonwealth nations on the occasion of the first accession and, at the third accession, for the refund of contributions to the United Kingdom, where the accession was a mere opportunity to regulate this unsolved question of British obligations to pay contributions to the Community.
IV. Admissible content of transitional measures
1. The normative foundation of an enlargement of the EU
Let us now look at the normative foundations of an enlargement of the EU. The legal basis for an accession is Art. 49 E.U. Treaty, which regulates the admission procedure. The conditions of admission, and the necessary adaptations of those treaties which form the basis of the Union, are fixed by an agreement between the Member States and the applying state. This agreement needs to be ratified by all Member States in accordance with their constitutional provisions. Since the Maastricht Treaty, accession occurs as accession to the EU and, at the same time, to the three European Communities. An accession, therefore, refers to the whole institutional frame of the EU, including the Communities. However, isolated accessions were not practiced before either. Despite the uniform procedure, a newly admitted state is still acceding to the individual Communities and, if necessary, the individual Community treaties need to be adapted.
As to the substantive conditions for accessions, Art. 49 E.U. Treaty only contains very few. Apart from the fact that the accessing state needs to be a European one, it explicitly only demands the adherence to certain fundamental legal principles which, according to Art. 6(1) E.U. Treaty, count at the same time as the foundation of the EU. These are the common structural principles and fundamental rights of the Member States, namely the principles of freedom, democracy, respect for human dignity and the basic freedoms as well as the rule of law.
The Treaties do not define the extent to which the new Member States need to be integrated into the EU and the Communities. As seen, the Community bodies in this respect always, since the first accession, have looked to preserve the complete acquis communautaire for the whole Community even after the accession of new Member States. A fulfillment of this requirement is to be expected, because the candidates for accession do not possess a legal title to accession, at least not in a general form, rooted in Art. 49 E.U. Treaty or another rule of primary Community law. This renders it possible for the EU to set the conditions for an accession politically and does not say anything about the legal limits. We only need to note for the moment that Art. 49 E.U. Treaty does not require a total adoption of the Community and Union law or the acquis communautaire. It also does not contain rules defining the extent of admissible exemptions from Community law or defining the conditions under which such exemptions are admissible at all. More exact guidelines in this respect can only be deduced from general legal principles.
2. The differentiation between accession-related and other treaty modifications
Without going into the question – depending on the point of view either difficult or simple – of substantive limits for a modification of the Treaty generally, my assumption is that, at least in the case of the enlargement of the EU, the fundamental principles of the EU and the Communities need to be preserved. This is because basically the procedure for admitting new Member States is designed to maintain the identity of the admitting institution. This is true even if an accession, and especially the enlargement by several new Member States, can be – and possibly must be – at the same time taken as an opportunity for reforms.
The differentiation between enlargement and treaty modification is clearly expressed in the E.U. Treaty. Modifications of the treaties necessitated by an accession can be made during the course of the accession procedure according to the already mentioned Art. 49(2) E.U. Treaty. This means primarily changes in the composition of the Community bodies, but also adoption of those transition regulations which are thought necessary. If, however, changes to the Treaties are to be made solely on the occasion of an accession, and if those changes affect the existing system of Community law, a Treaty modification on the basis of Art. 48 E.U. Treaty is needed. Admittedly, the differentiation between an adaptation and other (more substantive) changes is not always easy and also not undisputed. Furthermore, modifications might be taken within an accession procedure, as this procedure is more complicated than that of the mere Treaty modification. However, the above-mentioned differentiation is rooted in the Treaty itself. 
Therefore, enlargements of the EU that are not simultaneously aimed at reforming Community law need to leave fundamental principles of the Community unharmed. This means all principles which define the identity of the Community. Part of these is, surely, the institutional structure of the Community. Among the fundamentals are the principles mentioned in Art. 6 E.U. Treaty and fundamental rights, supranationality of the EC, and also the principle of integration as well as the principles expressed in the policies, above all free market and competition. The most important part of the last principle are the basic freedoms in the internal market. Their meaning was emphasized again and again by the ECJ during the course of its jurisdiction. Art. 39 et seq. E.C. Treaty states: "The Court has consistently held that the free movement of workers is part of the fundamental principles of the Community." One can conclude that an abolition or fundamental reduction of individual freedoms affects the identity of the Community and, therefore, is ruled out in the context of accessions as a matter of principle. 
3. Total exclusion because of the creation of the internal market?
Before taking a closer look at the principles which have to be considered at accession, we first have to deal with an argument that refers to the relationship between transition regulations and the level of integration at the time of the accession. One could imagine that, in principle, transition measures are thought inadmissible because of the aims of integration already achieved. In concreto, the argument could be that, after creation of the internal market, exceptions from the basic freedoms, especially from the free movement of workers, are prohibited as far as they reach beyond those contained in the E.C. Treaty itself.
This, however, cannot be reasoned in a convincing manner. Apart from the fact that the practice at earlier enlargements did not stay within certain limits, transitional measures serve the approximation to a certain level of integration. Thus it is not relevant if an integration level satisfying at least the current objectives of the Treaties is already achieved. Indeed, those objectives can change. Also, the objective of creating an internal market is not endangered by approximations on the part of new applying states. It is possible that, after abolition of all border controls, the limited re-introduction of these controls can be regarded as inadmissible because of the related strong infringements. Another exception to the right of free movement of workers would, however, remain possible.
V. Limits for transitional measures
Assuming that the fundamental principles of the Community and the Union need to be preserved, it is necessary to explain in the last step which principles are relevant for the assessment of the admissibility of exceptions and their consequences. One can already state here that the legally relevant principles, namely those of unity of law and non-discrimination, can be themselves subject to exceptions. However, limits that flow from the necessary balancing between the principles in question have to be respected.
1. General principles
a) First a word about the meaning of unity of law. It is ambiguous. On one hand, it does not, as a formal concept, provide protection against a reduction of generally applicable Community law and, therefore, also not against taking that step upon accession of new Member States. On the other hand, it reduces the possibility of differentiation to the benefit or detriment of individual Member States, provided that the law remains valid for the other Member States and also provided that the admissibility of a differentiation does not follow from the Treaties. This second aspect results in exceptions necessitating a justification to be found in another legal principle of the Community, including the fact that the exceptions should, in the end serve, by momentary renunciation, the purpose of creating the unity of law which cannot be achieved immediately. 
b) In a certain way, the unity of law just explained is also an expression of a general rule of non-discrimination. This is – especially in relation to the duties and the rights of the Member States – a part of Community law. Equal participation in the integration process and uniform applicability of the Treaty provisions aimed at it do not follow from the prohibition of discrimination in Art. 12 E.C. Treaty but from a general rule of law. This general principle plays an important role in the enlargement of the Union, because one can deduce that new Member States have to have the same rights and duties as the old Member States. Still, as a principle of general character, the principle of non-discrimination does not exclude any differentiation but restricts exceptions from the application of Community law by imposing the requirement that there has to be a reasonable justification for it.
c) For exceptions from the uniformly applicable Community law, especially for the agreement of transitional measures, justification in the form of an objective reason is needed. This could be based on the endangerment of other legal values protected by Community law. According to the general aims of European integration, a geographical extension of the European Union and the European Communities, and with that an extension of Community law, is not only politically desirable but also a legally protected value. In connection with an accession, there are special circumstances to be taken into consideration which favor a relatively wide discretion marked by the political character of such a fundamental decisions. A decision to accept new Member States is characterized by its complexity. Besides economic advantages and disadvantages, there are also strategic and geopolitical aspects to be taken into account leading to the constellation that, although conditions of an accession can be controlled, the evaluation of the enlargement itself is only subject to a limited control. In sum, deviations from the unity of law and the rule of non-discrimination are to be tolerated if they serve, in the end, the purpose of a per se admissible accession and aim at simplifying the mutual adaptation and securing unity and equality in the whole Community area. These functions of adaptation and security explain why transitional measures could be agreed upon at earlier accessions and why such measures are also uniformly held admissible in the literature.
2. Specifications
From the outlined general foundation one can deduce certain concrete principles which form, with the necessity of judging every particular case on its own merit, a certain framework in which certain possibilities of justified exceptions exist. In practice, this means weighing the legal values involved and putting them into relation.
a) If the fundamental values of the Community itself are affected, discrimination of a permanent character between the Member States is, in principle, not possible. Amongst these fundamental values are regulations concerning the internal market and also rules concerning the four basic freedoms, such as the free movement of workers and of services.
b) For a limited period of time, exceptions are admissible to all rules of Community and Union law. However, transitional measures may not result in a permanent non-application of law in areas which define the Community's identity. Therefore, transition periods have to be chosen in a way so that unity of law can be expected in the not too distant future. Their duration can depend on the measure in which Community law is affected at its core, and also on the extent of the expected adaptation problems. It also has to be taken into account how costly the application of transition measures will be. As a guideline one can assume, looking at the practice so far, that the maximum duration for a transition in areas which affect fundamental rights lies at approximately ten to twelve years.
c) Apart from measures limited only by time, in exceptional situations measures also limited in substance can be admissible. This means regulations which only give rights if certain conditions are fulfilled – such as the introduction of free movement of workers only after achieving a certain degree of economic adaptation. However, limited transition measures need to be justified by exceptional measures, and an assurance that the creation of a permanent exception is prevented. Therefore, substantial limitations may only be agreed upon if, in addition, a certain time limit is also affixed.
Do circumstances at accession lead to the conclusion that (obviously) the candidates for accession will not succeed, within the admissible time limit, to adapt sufficiently to the economic level of the EU? – Are dangers, after an expired time limit, for the labor market of the old Member States or other serious collisions of legal values to be expected if free movement of workers and services are granted to the full extent if the enlargement of the EU is to be regarded as against Community law? When it becomes clear that fundamental principles of the Community are to be destroyed by permanent differentiation or by endangering the achieved level of integration, discretion as to the conditions for an accession is limited.
VI. Judicial review
In the LAISA cases, the European Court of Justice supported the opinion that regulations contained in the accession act are not justiciable under the procedure of Art. 230 E.C. Treaty. It stated that
”this interpretation applies especially as the regulations of the accession act lay down the results of the accession negotiations which are one complex for the solution of those difficulties which the accession brings for the Community as well as the acceding state.”
It is true that, if extensive substantive conditions are negotiated especially in relation to the economic, political and legal situation in the acceding states, those are only justiciable to a limited degree. However, this does not exclude judicial control as such. The cautious attitude of the European Court of Justice is not based on a specific doctrine limiting judicial power with regard to the content of the deciding questions but on the nature of the legal act in question.
1. General objections
According to the international law of treaties, the Member States decide on the contents of treaties they conclude, and it is up to them to change the treaties or to set up new organizational structures. The basis for any binding effect by contract is their collective will, and even a violation of a specific amendment procedure would not lead to the invalidity of the amendment in question. However, a treaty amending the E.U. or the E.C. Treaty is, at least, an act of Union or Community law at the same time. If we take the content of a treaty as the relevant factor, we could even argue that its nature is a purely ”European” one.
The E.U. Member States have agreed to specific amendment procedures laid down in the E.U.Treaty. As long as their intent is not to modify these procedures or the conditions of amendment, but to act within their framework, the existing legal rules continue to be binding. A violation would, at least, not be in conformity with E.U. law. Furthermore, deciding whether the procedure or the conditions of the amendment have been met would, in any case, not violate the role of the Member States as masters of the treaties – notwithstanding the question whether this role has limits on its own.
2. The search for a competence
Even if there were no general objections to judicial control, it is necessary to look for a legal basis under which the above mentioned question could be brought before the Court of Justice. Art. 46 E.U. Treaty states that the powers of the Court of Justice and the exercise of those powers shall apply to the accession procedure set out in the E.U. Treaty. This is a result of the previous situation in which each of the three Community Treaties had a special provision concerning accession and a consequence of the fact that the accession procedure is embodied in the Law of the Union, but it does not serve as a legal basis for judicial control.
On the other hand, it is clear that it is the task of the Court of Justice to ensure the interpretation and application of the Treaties. The question whether the results of accession negotiations violate Union law cannot be decided by any national court. It is true that consideration of Community interests is institutionally secured both by the Commission (as negotiator without a binding role) and by the European Parliament. Still, leaving the control of legal limitations to the Court of Justice would conform to the principle of separation of powers enshrined in the Treaties. Two possible ways remain as a basis for legal protection by the Court: First, an action could be brought before the Court against the Council decision, which is necessary in the accession procedure, because the decision is of a binding legal nature (Art. 230 E.C. Treaty). However, it is questionable as to whether this offers effective legal protection. Secondly, there might be a power to decide on the basis of Art. 226 E.C. Treaty, if the co-operation between the Member States in concluding the accession treaty were regarded as a common act falling within the scope of this article. However, this solution would hardly work in practice, because the action can only be brought before the Court by the Commission (or by a Member State, Art. 227 E.C. Treaty).
VII. Conclusions
1. The Treaty provision concerning the accession of new Member States contains only few conditions of a substantive nature. In particular, it does not regulate the extent to which modifications to the Treaty and thereby exceptions from the uniform application of Community law can be agreed upon on the occasion of an accession. From general principles one can, however, conclude that at an accession only such modifications are admissible which leave the identity of the Community untouched. Therefore, the fundamental principles of the Community, i.e. its institutional framework and the basic structural principles, must be preserved without change.
2. The principles of unity of law and non-discrimination between Member States and Union citizens demand the justification of transitional measures in every individual case. The adaptation difficulties that result from the accession of new Member States can serve as justification. In addition, a certain leeway for discretion exists. Exceptions from Community law caused by accessions need to fulfill a function of adaptation and security. This has been the case with the practice of the enlargements of the Community so far.
3. The possibility of justification of transitional measures leads to a variable system for the admissibility of provisions which have to distinguish a substantive and a time-related component. Exceptions are prohibited if they change those fundamental principles defining the identity of the Community. The less closely related they are to those fundamental principles, i.e. the less important the involved legal rules are for the identity of the Community, the easier they are to justify. Also, the possibilities of justifying an exception are greater if the exception only exists for a short time. Exceptions are not allowed permanently as far as they refer to fundamental Community law.
4. As it stands now, limits to the amendment of the Treaties are still disputable, and they are not subject to judicial review. A more differentiated approach could, at least, change this situation with regard to a distinction between modifications in substance and modifications within the accession process.