1

217.005 Contemporary Issues of International Law:

Participation in International Regimes: The Role of Human Rights and

Democracy

Mag. Dr.iur. Christian Pippan

Institute of International Law and International Relations

The European Union: Defending “European

Values” vis-à-vis Candidate Countries and Existing

Member States – Is There a Double Standard?

Seminar Paper

Submitted by:

Siniša Pejić

Alberto Rocamora Garcia

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Table of Contents

I. Introduction........................................................................3

II. Values

1. Values of the European Union........................................4

2. Assurement of Values in the European Union...............7

III. Membership in the European Union...............................9

IV. Case Study

1. 2004/07-Enlargement....................................................12

2. Hungary.........................................................................14

3. a) Turkey.......................................................................19

b) Western Balkan.........................................................20

V. Conclusion........................................................................23

VI. Bibliography/Sources......................................................25

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I. INTRODUCTION

The European Union is nowadays an unique supranational entity in the halfway

between an international organization and a confederation with 27 State Members:

Austria, Belgium, Bulgaria, Cyprus, Czech Republic, Denmark, Estonia, Finland,

France, Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg,

Malta, Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden

and United Kingdom; and Croatia is going to join next year 2013.

Since European Coal and Steel Community was established on 23 July of 1952 with

the Treaty of Paris, signed in Paris (France), followed by the Treaty of Rome,

establishing the European Economic Community, one of the main aims was to unite

all the countries in Europe after the Second World War, and since the fall of

Communism and the stabilization of the Balkan Peninsula, this goal is more realistic

than ever (or at least it should be).

After the failure of the Treaty establishing a Constitution for Europe, caused by the

reject of French and Dutch voters, EU was in a big crisis, looking for alternatives to

improve the governance, and the same recently with “No” of UK to sign the Fiscal

Pact, then some voices started to ask if we are too many members in EU and if 27

voices and votes is too much for the conferral system.

Another key factor is the economic and financial crisis in which Europe is, which is

threatening the common currency, the Euro, and making troubles, especially in

southern countries and Ireland, with Greece close to bankruptcy. In this context,

enlargement process is also in all eyes, candidates, potential ones, Euro Zone States

and Member States without the Euro as currency. This depression is wreaking havoc

in the European sentiment and fueling Eurosceptic and far-right and left parties, not

very prone to enlargement.

This paper will deal with the question if there is a double standard regarding the

understanding of values in the context of candidate countries and existing member

states. In order to analyze this question, we followed a “case-study”-approach, with

setting focus on the „past‟ (2004/07-enlargement), the „presence‟ (Hungary) and the

„future‟ (Western Balkans/Turkey).

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First, however, this paper will explain the understanding of the term „European

values‟ in general and its assurement. Secondly, becoming a member of the EU is

being explained in a brief chapter. The main focus of this paper lies, as mentioned

before, in the case-study. Here we will compare, with the help of various reports, the

position of the EU towards the different states. Finally, we will present a conclusion.

II. VALUES

1. Values of the European Union

The European Union (EU) sees itself not just as an economic community, but also as

a pool of values, which all member states (and those wishing to join the EU) have to

respect, apply and promote. Those values are basically the foundations the European

Union shall be built upon. The Treaty on the European Union (TEU) states in its

Preamble that the inspiration for the European Union is drawn “from the cultural,

religious and humanist inheritance of Europe, from which have developed the

universal values of the inviolable and inalienable rights of the human person,

freedom, democracy, equality and the rule of law”.1

The legal background can be further found in Article 2 TEU, which states that “the

Union is founded on the values of respect for human dignity, freedom, democracy,

equality, the rule of law and respect for human rights, including the rights of persons

belonging to minorities.” At this point, it is important to mention that both the EU as a

legal entity and the various member states (and those wishing to join the EU) are

committed to respect and promote the values mentioned above.

Those core values, which set up main goals for member states to promote, are

supplemented by some more specific ones, as for instance, the promotion of social

justice and protection, and the fight against social exclusion and discrimination

(Article 3 TEU). Looking at the history of the EU, and Europe in general, it is not

surprising that the core values are made up of democracy, human dignity, freedom,

equality, the rule of law and the respect for human rights. Those very values, which

arose from the Western European (Eastern Europe was under Communist regime until

1 The Treaty on the European Union, Preamble.

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1989) understanding of living together in a new Europe without war and conflicts, can

now be found enshrined in every member states‟ constitution. Especially World War

II, with horrible atrocities and damage having happened in Europe and leaving it in

ruins, made it clear that a new „Europe‟ has to be built upon humanist ideas and

values in relation to the thoughts of the Enlightenment. Democracy, ensuring free,

direct, general, secret and equal elections of representatives, is a vital cornerstone in

this respect and thus, the guarantee for citizens‟ participation in public life (both on

national and EU level). Moreover, democracy is regarded in the Western hemisphere

as the best form of government, and thus, the EU supports pluralistic societies with

rights of free speech, religion and thought. The rule of law, on the other hand, ensures

a public functioning, which is precisely determined by law and excludes thus any

discrimination. Besides, the laws and regulations made by popularly elected bodies

must be overseen by independent judicial institutions. The EU being defined by the

term „supranationality‟, makes it obvious that the member states have agreed to let EU

law override national law in specific areas where the EU has authority.2 The European

Court of Justice (ECJ) is serving as the last arbiter of EU law.

At this point, the citizenship of the Union has to be mentioned, which provides some

sort of equality and prohibids indirectly discrimination. According to Article 20 of the

Treaty on the Functioning of the EU (TFEU), “every person holding the nationality of

a Member State shall be a citizen of the Union” and thus enjoying some privileges.3

Nevertheless, the feature of supranationality and the fact that the EU is not any close

to represent (yet) somehow a “United States of Europe” is shown in this Article,

which states that “Citizenship of the Union shall be additional to and not replace

national citizenship.” Still, the preservation of sovereign national identies is anchored

deeply in the composition of the EU we know today.

Human dignity and human rights are as far taken into account as the Treaty of Lisbon

provides an opportunity for the EU to seek accession to the European Convention for

the Protection of Human Rights and Fundamental Freedoms (or simply European

Convention on Human Rights; ECHR). Moreover, the EU recognises the rights,

2 See Delegation of the European Commission to the USA, The EU: A Community of Values, in:

European Union (ed.), eufocus, 2, at http://www.eurunion.org/News/eunewsletters/EUFocus/2005/EUFocus-CommunVals.pdf. 3 The Treaty on the Functioning of the European Union, Article 20.

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freedoms and principles set out in the Charter of Fundamental Rights of the European

Union (CFREU) of 7 December 2000. This Charta has the same legal value as the

other treaties (Article 6 TEU). In this respect, it is also worth mentioning that the

CFREU contains not just the core values, but also some additional rights not

contained in the ECHR, such as data protection, bioethics and the right to good

administration.

The EU has a great deal in, inter alia, abolishing the death penalty around the world,

in fighting torture and other forms of ill-treatment and in stopping human trafficking.

Looking at the core values, one can say that those can not be rated indivudally due to

the fact that they are overlapping quite oftenly. In other words, sometimes it is not

possible to say when one right deriving from a value stops, and another right starts.

Furthermore, the EU understands its values to be brought into the rest of the world

too. Thus, it had and has some ongoing projects: The Western Balkans is being

provided by political and financial support. Besides, police and military forces are

being stationed there to keep and prevent new outbreaks of violance or clashes

between ethnic groups.

Regarding Africa, the EU is one of the greatest provider of aid and a supporter of

democratic movements with focus also on human rights and minority rights.

The EU also puts its focus on the Middle East by serving as an actor for stabilization

and peace-projects. Following its values the EU tries to strenghten the politcal

dialogue and build intercultural connections.

Moreover, in a general way, the EU sees another obligation in helping other nations,

which were hit by natural disasters (tsunamis in Asia, Hurricane Katrina, etc.).

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2. Assurement of the Values in the EU

The European Union has developed some arrangements in order to control the

assurement of these values contained in these consecutive treaties and amendments,

each time more developing while EU was enlarging and European Law was growing.

We also must start accepting the premise that main violators of EU values are those

Member States, and the assurement of values is mainly focused on that.

If we should choose the most important piece of legislation of EU, it should be

probably the TEU, beginning in this Treaty, Article 7.1 declares “On a reasoned

proposal by one third of the Member States, by the European Parliament or by the

European Commission, the Council, acting by a majority of four fifths of its members

after obtaining the consent of the European Parliament, may determine that there is a

clear risk of a serious breach by a Member State of the values referred to in Article 2.

Before making such a determination, the Council shall hear the Member State in

question and may address recommendations to it, acting in accordance with the same

procedure”. This is the main procedure employed by EU institution against a member

state when there is a doubt with the accordance of a new rule with European Law, and

thus with EU values, like in after the enforcement of Hungarian new Constitution.

Other ways of open a procedure are referred in the same Article 7: paragraph 2 allows

the Commission to start it, “acting by unanimity and on a proposal by one third of the

Member States or by the Commission and after obtaining the consent of the European

Parliament” also in case of serious breach; while the Council can revoke some rights,

as voting for a Member State in the same situation, leaning in paragraphs 3, 4 and 5.

A core institution in the fulfilling of European values, The Court of Justice of the

European Union (more known as European Court of Justice, consequently ECJ

hereafter), is set down in the TEU and which has since Nice Treaty a jurisdictional

instance called “The European General Court (EGC)” and specialized Court called

“The European Union Civil Service Tribunal”, who has the jurisdiction just for

disputes between EU institution and their public workers, ECJ and EGC determine

action on proceeding against possible infringer Member States.

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The Court of Justice of European Union has the duty of enforce Articles 263, 265,

267, 268, 270 and 2724, concerning to Member States, it have jurisdiction to give

preliminary ruling in the interpretation of the treaties,5 where the European

Institutions, as well Member States will be represented by an agent before the Court6.

But undoubtedly, the most important Court assuring the European Values is a non-EU

institution, but dependent on the Council of Europe, The European Court of Human

Rights, established by the ECHR, in its Section II to “ensure the observance of the

engagements undertaken by the High Contracting Parties in the Convention and the

Protocols thereto”.7

The court has one judge for each High Contracting Party8 (47 nowadays, Members of

the Council of Europe, all physically European states with the exception of Belarus),

elected by the Parliamentary Assembly between 3 three candidates nominated by the

Party by simply majority for a term of nine years, without renovation, with the limit of

the age of 70, as articles 22 and 23 of ECHR state.

Promoting its values, European States have been the main actors in the actions against

war crimes committed in former Yugoslavia, playing a key role in the International

Criminal Tribunal for former Yugoslavia (ICTY) or encouraging democracy, like in

the appointment of the High Commissioner for Bosnia and Herzegovina in the

framework of the Dayton Peace Agreement and also providing post-communist

republic financial and legal support, creating the European Commission for

Democracy Through Law (more known as, and hereafter, Venice Commission), a

dependent body from the Council of Europe who brings constitutional assistance.

In the extra-European context, EU has reach to get a more or less consolidated unique

voice with the creation of the High Representative of the Union for Foreign Affairs

and Security, which has fight for example, for the right of the Guantanamo Bay

prisoners, Palestinians or Libyans rights.

4 Treaty on Functioning of European Union, Article 256.

5 Treaty on Functioning of European Union, Article 267.

6 Protocol (No 3) On the Statute of The Court of Justice of the European Union, Article 19.

7 European Charter of Human Rights, Article 19.

8 European Charter of Human Rights, Article 20.

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III. MEMBERSHIP IN THE EU

Before going right into the “case-study”-chapters, it might be appropriate to explain

the process of becoming a full member of the European Union at this moment.

Article 49 TEU is providing the legal basis in this respect:

Article 49

(ex Article 49 TEU)

Any European State which respects the values referred to in Article 2 and is

committed to promoting them may apply to become a member of the Union. The

European Parliament and national Parliaments shall be notified of this

application. The applicant State shall address its application to the Council, which

shall act unanimously after consulting the Commission and after receiving the

consent of the European Parliament, which shall act by a majority of its component

members. The conditions of eligibility agreed upon by the European Council shall be

taken into account.

The conditions of admission and the adjustments to the Treaties on which the Union is

founded, which such admission entails, shall be the subject of an agreement between

the Member States and the applicant State. This agreement shall be submitted for

ratification by all the contracting States in accordance with their respective

constitutional requirements.

Moreover, every state wishing to join the EU has to fulfill the so-called “Copenhagen

Criteria”.9 According to these criteria a candidate state must have some sort of

institutional stability as a guarantee for democratic and legal order on the one side and

on the other, the will to protect both human and minority rights (political criteria). The

membership also requires a properly functioning market economy (economic criteria)

and the will of the candidate state to accept obligations arising from a membership

and setting out its policy in accordance with aims of both political, economic and

monetary Union (Acquis criteria).10

The European Council of Madrid stated that a candidate state is not just obliged to

implement the EU rules, but also ensure its effective implementation and enforcement

throughout appropriate administrative and judicial structures (Madrid Criteria).11

9 See European Council in Copenhagen 21 – 22 June 1993, Conclusions of the Presidency, 13, at

http://ec.europa.eu/bulgaria/documents/abc/72921_en.pdf. 10

See Isak Hubert, Europarecht I Teil 1, 2010, 25. 11

See European Council in Madrid 15 – 16 December 1995, Conclusions of the Presidency, at http://www.europarl.europa.eu/summits/mad1_en.htm.

10

Worth mentioning is besides the so-called Union‟s capacity to absorb new members.

This capacity, already mentioned in the conclusions of the presidency of the European

Council in Copenhagen, is equally important to the Copenhagen Criteria (having in

mind especially in regard to an accession of Turkey). The EU‟s requirement of having

the capacity to absorb new members was dealt with in a strategy paper issued by the

Commission in the year 2006.12

The actual membership process consists of an intern (on EU level) and an extern (on

international law level) part. The intern process is being initiated by an application

brought in by the candidate state. The Commission gives a preliminary opinion to this

application (Avis provisoire). This preliminary oponion is built upon information the

Commission gathered throughout questionnaires in order to judge the general

situation regarding the candidate state.

If the preliminary opinion is a positive one, the Council decides unanimously on

accession negotiations with the candidate state. First, a “screening” is being carried

out by the Commission in order to identify issues, which might be opposed to an

accession. 35 negotiation chapters are composing the law of the Union.

Ever since accession negotiations with Croatia and Turkey, the so-called

“benchmarking” is being used. This means that the Union, following the

Commission‟s suggestion, sets out “benchmarks”for the prelimininary ending and, if

applicable, the opening of negotiations chapters.

When negotiations on all the chapters are completed to the satisfaction of both sides, a

Draft Accession Treaty is being set up. This treaty contains all transitional

arrangements and deadlines, as well as details of financial arrangements and any

safeguard clauses.

The European Parliament acts by a majority of its component members (Avis

conforme) and approves thus the accession, but not the accession treaty itself. After

the Commission issued its final opinio (Avis dèfinitif), the Council decides

unanimously by resolution about the accession of the state.

12

See Communication from the Commission to the European Parliament and the Council, Enlargement Strategy and Main Challenges 2006 – 2007 Including annexed special report on the EU's capacity to integrate new members, 2006, at http://ec.europa.eu/enlargement/pdf/key_documents/2006/nov/com_649_strategy_paper_en.pdf.

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The extern process is being carried out according to Article 49 2.paragraph, which

requires the signing of the accession treaty and its ratification by all the member states

in accordance with their respective constitutional requirements.

The accession causes the adoption of both the primary and secondary law and the so-

called acquis communautaire.13

Once the accession treaty is signed, the candidate country becomes an "acceding

state", and is entitled to interim privileges (comment on draft EU proposals,

communications, recommendations or initiatives, observer status, but no voting

power) until the ratification process is complete. Then the treaty enters into force on

its scheduled date, and the accession state becomes a member state.

Throuhout the accession process, the candidate states are being supported by the

Union. This support is being carried out with the help of the so-called “pre-accession

strategy”, which includes the implementation of existing association agreements/

stabilisation and association agreements based on the “Instrument for Pre-Accession

Assistance – IPA”.14

light blue: Acceding country; yellow: Potential candidates; green: Candidate countries

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13

The Acquis communautaire is the accumulated legislation, legal acts, and court decisions which constitute the body of the EU law. 14

See Council Regulation (EC) No 1085/2006 of 17 July 2006 establishing an Instrument for Pre-Accession Assistance (IPA), at http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32006R1085:EN:NOT. 15

See European Commission Homepage, at http://ec.europa.eu/enlargement/countries/index_en.htm.

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IV. CASE STUDY

1. 2004/07-Enlargement

The 2004 and 2007 EU-Enlargement, with altogether twelve states joining the EU,

has been probably (next to the current global economic crisis and its impact on

weakening various member states and thus the Union itself) one of the biggest

challenges so far.

Nevertheless, states wishing to join the EU have to fulfill several criteria in order to

become a full member and enjoying thus several privileges (see previous chapter).

Of course, the ten coutries (Cyprus, Czech Republic, Estonia, Hungary, Latvia,

Lithuania, Malta, Poland, Slovakia and Slovenia) joining the EU in 2004, and

Bulgaria and Romania in 2007, were checked in relation to the implementation and

respect/application of European values.

Thus, the Commission checked that those values, namely human dignity, freedom,

democracy, equality, the rule of law and respect for human rights, were respected by

the various countries. As mentioned in the previous chapter, the Copenhagen Criteria

serve as a useful instrument to give information about the situation of the political

rights. The Commission submitted regular reports on, inter alia, these issues and

developed some kind of methodology, which has the function of assessing progress in

terms of legislation and measures actually adopted or implemented in the various

countries.16

Human rights are checked in that way, that “the Commission analyses the way in

which the candidate countries respect and implement the provisions of the major

human rights conventions, including in particular the ECHR. As regards respect for

minority rights and the protection of minorities, the Commission devotes particular

attention to the implementation of the various principles laid down in the Council of

Europe Framework Convention for the Protection of National Minorities”.17

16

See Agenda 2000 - Vol. I: For a stronger and wider Union - Vol. II: The challenge of enlargement, COM/97/2000 final - Vol. I/Vol. II. 17

See TOWARDS THE ENLARGED UNION - Strategy Paper and Report of the European Commission on the progress towards accession by each of the candidate countries {SEC (2002) 1400 - 1412}, at http://eur-lex.europa.eu/smartapi/cgi/sga_doc?smartapi!celexplus!prod!CELEXnumdoc&lg=en&numdoc=502DC0700.

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As for the 2004 EU-enlargement, the public opinion in the existing member states was

quite sceptical. Seven of the countries applying for membership were former

communist countries, one a former Yugoslav country and two were Mediterranean

islands. The communist/socialist past of those countries let the people have a negative

opinion about the handling of human rights issues.

According to the Commission, it was up to national governments to explain the

enlargement process to its people by arguing that it is “a win-win game, in which the

re-unification of Europe will extend the area of peace, prosperity and security

throughout the continent”.18

As mentioned before, the Commission of course checked the situation regarding the

implementation of European values. In regular reports, which dealt with that very

issue, it stated that “all candidates involved in the negotiations meet these criteria.

Over the past five years, progress in consolidating and deepening democracy and

respect for the rule of law, human rights and the rights of minorities has been

considerable”.19

This monitoring was also made over a number of years in order to follow the

progress. All in all the ten countries of 2004 were seen as being in accordance with

the requirements for EU membership by the Commission, most notably speaking

about the Copenhagen Criteria. In the 2003 monitoring report for all ten countries, the

Commission stated that “the acceding countries fulfilled the Copenhagen political

criteria and that all had functioning market economies” and came thus to the result

that "these countries will have fulfilled the economic and acquis criteria and will be

ready for membership from the beginning of 2004".20

The Treaty of Accession was signed in Athens on 16 April 2003 with these ten

countries and full membership was achieved on 1 May 2004.

18

See op.cit. note 17. 19

See op.cit. note 17. 20

See Comprehensive monitoring report of the European Commission on the state of preparedness for EU membership of the Czech Republic, Estonia, Cyprus, Latvia, Lithuania, Hungary, Malta, Poland, Slovenia and Slovakia {SEC (2003) 1200 - 1209}, COM/2003/0675 final, at http://eur-lex.europa.eu/smartapi/cgi/sga_doc?smartapi!celexplus!prod!CELEXnumdoc&lg=en&numdoc=503DC0675.

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Bulgaria and Romania joined the EU three years later, nonetheless they were

considered as part of the 2004 enlargment wave.

The reason why those two countries did not join the EU in 2004 is seen in the fact that

they had not been able to fulfill the economic criteria and some of the Acquis criteria

at that time (being one cornerstone of the Copenhagen Critera). The political criteria,

however, was considered to be fulfilled sufficiently, as already being mentioned in the

2002 strategy paper.21

Moreover, the monitoring report from 2006 considered Bulgaria and Romania as

“sufficiently prepared to meet the political, economic and acquis criteria”.22

The Treaty of Accession was signed in Luxembourg on 25 April 2005 with those two

countries and full membership was achieved 1 January 2007.

2. Hungary

Nowadays this topic is really under the focus after new Hungarian Constitution

(officially called The Fundamental Law of Hungary, hereafter FLH) was in force on

1st of January.

Focusing on this case; new Constitution was a personal project of Hungarian Prime

Minister, Viktor Orban and his party, Fidesz, in power since April 25 of 2010 with the

two-thirds majority needed to enact constitutional reforms in the National Assembly

of Hungary (Országgyűlés) after economic crisis management of former socialist

cabinet.

Hungary was the only one Eastern country with a Constitution from communist era,

the 1949 Constitution, amended in 1989 after the fall of the regime, until Orban‟s

Government started the drafting process.

FLH was passed just with the support of the 262 MPs Fidesz and allies Christian

Democrats, far right-wing Jobbik voted against and Hungarian Socialist Party and

ecologists of Politics Can Be Different boycotted the vote and they weren‟t in the

parliament as a protest.

21

See op.cit. note 17. 22

See Monitoring report on the state of preparedness for EU membership of Bulgaria and Romania, 2006, 13, at http://ec.europa.eu/enlargement/pdf/key_documents/2006/sept/report_bg_ro_2006_en.pdf.

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At the beginning of the process, the Venice Commission was asked about the topic,

assuring that three legal questions having been raised in the process of drafting the

new Constitution: “the possible incorporation in the new Constitution of provisions of

the EU Charter of Fundamental Rights, the role and significance of the preliminary

review among the competences of the Constitutional Court and the role and

significance of the actio popularis in ex post constitutional review.”23

Also before the enforcement of FLH, The Council of Europe calls for a monitoring

procedure for Hungary as well as The European Parliament pronounced about the

topic in “European Parliament Resolution of 5 July 2011 on the Revised Hungarian

Constitution”, concerning about life imprisonment without parole24

, ethnic and sexual

minorities protection not covered in the preamble, the nationality of ethnic

Hungarians living abroad, the use of cardinal law, the constitutional regulation of

subject matters of regular law, such as tax or marriage law25

.

New constitution also states in the Preamble that Hungary was invaded by Nazi

Germany, rejecting any responsibility for Hungarian State after massive deportations,

has furthermore above mentioned by European Parliament a controversial article on

fetal protection. Some of these articles crush with CFREU.

Answering to first question asked by the Venice Commission:

European Commission expressed their doubts about the independence of data

authority, ensured in Article 8 of CFREU and enshrined in Article VI of FLH

after the removal of the Hungarian Data Protection Commissioner before the

end of the six-year-term26

.

There could be a conflict in the future between Article 9 of CFREU and

Article L of FLH, both relative to marriage, in case of recognition of same-sex

marriages celebrates in other countries or other civil unions due the prohibition

of same-sex marriages and the dignity of this unions, recognized by ECHR27

.

23

CDL-AD(2011)001 adopted in 86th Plenary Session (Venice 25-26/3/2011) – Page 4. 24

The Fundamental Law of Hungary, Article 4. 25

The Fundamental Law of Hungary, Article L. 26

IP/12/395 Hungary - infringements: European Commission satisfied with changes to central bank statute, but refers Hungary to the Court of Justice on the independence of the data protection authority and measures affecting the judiciary 25/04/2012. 27

European Court of Human Rights (2010) Schalk and Kopf v. Austria no. 30141/04 [Case-Law].

16

Another hot point is concerning “supervising media” as states the Article IX of

FLH, seen the precedents of this organs in other countries and regarding to

Article 11 of CFREU.

Article 21 of CFREU includes prohibition of “any discrimination based on any

ground such as sex, race, colour, ethnic or social origin, genetic features,

language, religion or belief, political or any other opinion, membership of a

national minority, property, birth, disability, age or sexual orientation shall be

prohibited” while Article XV of FLH avoids to include ethnicity or national

minorities and sexual orientation, above-mentioned.

Referred to Constitutional Court, Article 24 of FLH provides preliminary review to

“any piece of legislation”, and taking into consideration members are elected for

twelve years by a two-thirds votes of the Parliament (majority under possession of

Fidesz), there is a risk that preliminary review transforms the Constitutional Court in a

kind of second legislative and a counter power to the Parliament in the future in

accordance with worries of the Venice Commission.

Angrier reaction had the European Commission, as we can appreciate in MEMO/12/9

“Statement of the European Commission on the situation in Hungary on 11 January

2012” (11/01/2012); MEMO 12/17 “European Commission opens accelerated

infringement proceedings against Hungary” (17/01/2012); MEMO 12/165 “Hungary –

infringements: Commission takes further legal steps on measures affecting the

judiciary and the independence of the data protection authority, notes some progress

on central bank independence, but further evidence and clarification needed”

(7/03/2012); IP 12/24 “European Commission launches accelerated infringement

proceedings against Hungary over the independence of its central bank and data

protection authorities as well as over measures affecting the judiciary” (17/01/2012);

IP 12/222 “Hungary: Commission continues accelerated infringement procedure on

independence of the data protection supervisor and measures affecting the judiciary

and asks additional information on central bank's independence” (7/03/2012);

IP/12/395 “Hungary - infringements: European Commission satisfied with changes to

central bank statute, but refers Hungary to the Court of Justice on the independence of

the data protection authority and measures affecting the judiciary” (25/04/2012).

17

EU Commission expressed their concerns about the independence of the central bank

(officially National Bank of Hungary according to FLH), the judicial independency

and the independence of data authority (previously commented).

On the one hand the warning related with the independence of the central

bank, FLH states that the Governor and Deputy Governors of the National

Bank (Magyar Nemzeti Bank) are elected by the President of the Republic for

a 6-years-term, according with article 41, however, according with MNB Law,

in agreement with FLH, the Parliament can dismiss members of the National

Bank and the Minister can attend to the meetings of the institution, threatening

the independence of the National Bank, embodied in articles 127 (4) and 130

of TFEU.

Article 44 creates the Budget Council, such a merger of some institutions “The

members of the Budget Council shall include the President of the Budget

Council, the Governor of the National Bank of Hungary and the President of

the State Audit Office. The President of the Budget Council shall be appointed

for six years by the President of the Republic”, “While the merger is not a

problem as such, the MNB Governor would become a simple deputy chairman

of the new structure, which would structurally encroach on his

independence.”28

Also the approval of the new rule was against European Law, concretely

article 14.2 of the Statute of the European System of Central Banks and of the

ECB and Article 4 of Council decision (98/415/EC) on timely consultation.

At the end, Hungary promised to change the legislation, following the

recommendations of EU Commission, as we can read in IP/12/395.

On the other hand, in the eyes of the EU Commission, the independency of the

judicial branch is threatened taking into account article 62(2), which reads as

follows: “Professional judges shall be appointed by the President of the

Republic as defined by a cardinal Act. No person under thirty years of age

shall be eligible for the position of judge. With the exception of the President

28

IP/12/24 European Commission launches accelerated infringement proceedings against Hungary over the independence of its central bank and data protection authorities as well as over measures affecting the judiciary 17/01/2012.

18

of the Curia, no judge may serve who is older than the general retirement age”

and knowing the general age of retirement in Hungary is nowadays 62

(expecting to reach 65 in 2022), while previously it was 70 for judges,

prosecutors and public notaries. For the EU Commission, this article this

measure is against Council Directive 2000/78/EC of 27 November 2000

establishing a general framework for equal treatment in employment and

occupation, which prohibit discrimination on grounds of age at the workplace,

it also claims for an objective justification in case of early retirement for one

profession, as European Court of Justice affirmed on 13 September 2011 for

pilots.

Hungary cannot provide any acceptable justification for the early retirement,

which would affect nearly 25% of public notaries and 10% of judges (236).

“Hungary only proposed a clause that would allow to extend in individual

cases the retirement age of a judge beyond 62 if the judge passes a review by

the National Judicial Council of his `professional and medical aptitude' and

within the limit of a pre-determined annual quota. This proposal does not

comply with EU law because such extensions may be arbitrary, apply only in

individual cases and they do not address the Commission‟s main concern: the

transitional periods must be sufficiently long to protect the judges' legitimate

expectations and avoid the contradictory effect of a sudden drop (in 2012) and

then a slow rise (as from 2014) of the mandatory retirement age.”29

At last but not least, without leaving the legal sphere, EU Commission also

complain against the powers attributed to the President of the National Judicial

Office to designate a court and the possibility of a transfer of judges without

their consent and the possible impact that can have in the application of EU

law in Hungarian courts.

Referring to the Hungarian citizenship, Article G states “The child of a Hungarian

citizen shall be a Hungarian citizen by birth. A cardinal Act may define other cases of

the origin or acquisition of Hungarian citizenship” and also the impossibility of

29

Memo/12/165 Hungary – infringements: Commission takes further legal steps on measures affecting the judiciary and the independence of the data protection authority, notes some progress on central bank independence, but further evidence and clarification needed 07/03/2012.

19

deprivation of the citizenship, which provoked the reaction of Slovakian Government,

answered by Hungarian counterpart assuring there is no extra-territorial effect.

Hungarian Helsinki Committee also concerns about Cardinal Acts and the

requirement of, again, two-thirds majority to pass them, contained in article T.

In general, we can say, as many journalist and constitutional experts, that FLH is

strongly conservative biased, drafting without the opposition, break with the

constitutional context and legacy of last 20 years, and it establish many procedures for

substitute many institutions and public workers, and “severely restricts the scope of

action of future governments unless they command a 2/3 majority.”30

3. a) Turkey

53 years have passed since Turkey applied to join the European Economic

Community (EEC) in 1959, since this date, the Republic of Turkey has become a

closer partner of the European project. In 1963 the Ankara Agreement was signed,

followed by Second Protocol of 1970, both paving the way for eventual inclusion of

Turkey into the Customs Union and EEC, becoming a member of first one in 1995

and making the formal application for EEC full membership in April of 1987. Ten

years later, Turkey is declared eligible to become a member of EU by the European

Council and in 1999 Turkey became a Candidate Country.

In the new century, Turkey got the Accession Partnership and negotiations are opened

to date.

Turkey was a founding member of the Organization for Economic Cooperation and

Development (OECD) in 1961, a founding member of the Organization for Security

and Co-operation in Europe in 1973 and was an associate member of the Western

European Union from 1992 until its dissolution in 2011(European Countries members

of NATO). Turkey is also a founding member of the G-20 major economies in 1999.

Most remarkable concerns among EU are the conflict with Cyprus (full member state)

because of the recognition (and the presence of Turks Troops) of The Turkish

Republic of Northern Cyprus, the negation of the Armenian Genocide committed by

30

Hungary’s New Constitution: Why We Worry [http://verfassungsblog.de/blog-2/hungarys-constitution-worry/].

20

the Ottoman Empire and Human Rights, like the Censorship covered in Article 301 of

the Constitution “"a person who publicly insults the Turkish nation, the State of the

Republic of Turkey, or the Grand National Assembly of Turkey, shall be punishable

by imprisonment of between six months and two years" and also that "expressions of

thought intended to criticise shall not constitute a crime.", or the impossibility of

being a conscientious objector in the military service, derived from the strong power

remained by the army as “guardians of the legacy of Atatürk”.

The Republic founded by Atatürk, has changed many laws in order to fulfill EU-

accession-criteria, like Copenhagen one, but in the case of Turkey, is facing more

difficulties for political reasons, due some countries, such Austria are not comfortable

with the incorporation of a country “huge, poor, and Islamic”.31

Although the fact that one of the principles of the modern Turkey, issued in the

Constitution is the secularism of the state, where for example it is not allow for woman to

cover their head with Muslim clothes in a public building.

b) Western Balkans:

The Western Balkan is considered by the EU to have its future within the EU.32

Croatia is already an acceeding country with the 1 July 2013 being the date of

becoming a full member.

Serbia just gained the status of a candidate state, while Macedonia and Montenegro

have this status already for a little longer period. Albania has submitted an application

and put its policy towards EU integration, while the status of Kosovo* is still disputed

(prospect of EU membership and no recognition by five EU members at the same

time).

The EU also considers its enlargement strategy towards the Western Balkan as having

a lasting impact on peace, stability and democracy in the region.33

This chapter will focus on Croatia as an acceeding state, Serbia as a candidate state

and Bosnia-Herzegovina as a potential candidate.

31

See Council on Foreign Relations, Turkey’s EU Bid http://www.cfr.org/turkey/turkeys-eu-bid/p8939. 32

See COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND THE COUNCIL, Western Balkans: Enhancing the European perspective, COM(2008) 127 final, at http://ec.europa.eu/enlargement/pdf/balkans_communication/western_balkans_communication_050308_en.pdf. 33

See COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND THE COUNCIL, Enlargement Strategy and Main Challenges 2011-2012, COM(2011) 666 final, at http://ec.europa.eu/enlargement/pdf/key_documents/2011/package/strategy_paper_2011_en.pdf.

21

Croatia:

Croatia is now an acceeding state, with prospect to full membership by 1 July 2013.

Croatia was granted candidate status in 2004 (one year after applying for

membership). The overall process was disturbed by a border dispute with Slovenia,

which stalled the negotiation process for ten months.

In relation to the Copenhagen Criteria (meaning especially the political criteria), one

can say that “substantial progress has been made in all areas, including rule of law,

and results are becoming tangible”.34

Democracy and the rule of law have been

strenghtened throughout improving the functioning of parliament and government.

Moreover, the protection of both human and minority rights has been pursued by

Croatia.

Worth mentioning is Croatia‟s point of view on the freedom of expression, which

includes freedom and pluralism of the media and has a legal background in Croatian

law.

Besides, “there has been further progress regarding transparency of media ownership,

but limited progress with investigating cases, from previous years, of intimidation of

journalists working on cases of corruption and organised crime”(compare situation in

Hungary).35

Women‟s rights and gender equality has formally improved, but is still

being an issue in practise (on the labour market). Besides, children‟s rights and rights

of socially vulnerable groups and persons with disabilities have met just limited

progress. Another aspect of improvement is the fact that “Croatia has begun

developing a track record of implementation of the Anti-Discrimination Law and

legislation on hate crimes”.36

Regarding minority rights, one can say that Croatia is making progress througout

several steps taken towards an improvement of these issues. However, “Croatia needs

to continue to foster a spirit of tolerance towards minorities, in particular Croatian

Serbs”.37

Another big requirement for Croatian EU membership was the co-operation with the

International Criminal Tribunal for the Former Yugoslavia (ICTY). The capture of

Gotovina and Markac meant a big step towards EU for Croatia.

34

See op.cit. note 33, 31. 35

See op.cit. note 33, 32. 36

See op.cit. note 33, 32. 37

See op.cit. note 33, 32.

22

Worth mentioning is the fact that “Croatian government adopted and transmitted to

parliament for adoption a declaration on promoting European values in Southeast

Europe stating a firm commitment from Croatia that bilateral issues, such as border

issues, must not obstruct the accession of candidate countries to the EU from the

beginning of the accession process until the Accession Treaty comes into effect”.38

Serbia:

Serbia gained the Status of a candidate country in March 2011, after applying for

membership in 2009.

After Mladic and Hadzic, the last two Serbian generals accused for war crimes and

genocide, having been captured and handed over to the ICTY, the way was open for

getting closer to the EU.

Serbia is considered to have a “crucial role to play in ensuring stability, good

neighbourly relations and regional cooperation in the Western Balkans”.39

Serbia has considerably progressed towards fulfilling the political criteria related to

the stability of institutions guaranteeing democracy, the rule of law, human rights and

respect for and protection of minorities (political criteria of the Copenhagen Criteria).

Moreover, the conditions of the Stabilisation and Association Process are of

importance for Serbia and its approach towards the EU.

According to the Commission, Serbia is more or less in line with European values.

The analytical report by the Commission on Serbia states, that Serbian Constitution

“lays down the rules of parliamentary democracy, separation of powers and

independence of the judiciary. It defines the fundamental principles of rule of law,

social justice, respect for human and minority rights, and prohibits capital punishment

and discrimination of any kind”.40

The situation regarding human rights and the protection of minorities is in accordance

with European standards. Again, according to the report, Serbia is in line with EU

38

See op.cit. note 32, 33. 39

See op.cit. note 33, 21. 40

See COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND THE COUNCIL, Commission Opinion on Serbia's application for membership of the European Union, SEC(2011) 1208, 9, at http://ec.europa.eu/enlargement/pdf/key_documents/2011/package/sr_analytical_rapport_2011_en.pdf.

23

standards, because the Constitution “guarantees a wide range of human rights and

fundamental freedoms. It also provides for the possibility of filing a Constitutional

appeal as a final remedy for the protection of human rights”.41

Worth mentioning is the financial support Serbia gets throughout several programmes

funded by the EU (several IPA-Programmes, Operational Programme „South East

Europe‟, Danube Strategy Programme).

To put it into a nutshell, Serbia has made significant progess in order to meet the

political criteria and the obligations arising from the Stabilisation and Association

Agreement. Following the Commission‟s opinion, Serbia “Serbia should, in the

medium term, have the capacity to comply fully with the requirements of the EU

acquis in this area”.42

Bosnia-Herzegovina:

Since no official application for membership was submitted by Bosnia-Herzegovina,

it is having the status of a potential candidate country for EU accession. Nevertheless,

BiH takes part in the Stabilization and Association Process, with also a Stabilization

and Association Agreement signed on 16 June 2008, but still not in force.

Regarding BiH, one can say that it is definately not ready for EU accession yet. The

political landscape and economic situation do not help meeting the standards.

Moreover, as long as the Office of the High Representative (OHR) is not closed in

BiH, the country can not apply for membership.

Nevertheless, BiH also gets financial support through, inter alia, IPA-Programmes.

V. CONCLUSION

Summarizing, the EU enlargement processes have been different over the decades.

Starting with the first in 1973 with Denmark, Ireland and the United Kingdom, the

process of becoming a member of the European family has changed significantly.

However, fundamental values, like the respect for human dignity, freedom,

democracy, equality, the rule of law and respect for human rights, including the rights

41

See op.cit. note 40, 23. 42

See op.cit. note 40, 132.

24

of persons belonging to minorities, have been supplemented by several criteria

developed by European Union institutions.

In this regard, one has to mention the so-called Copenhagen criteria, which set up,

next to the fundamental values, the necessary criteria a country has to fulfil in order to

join the EU.

In our opinion, today, becoming a member of the EU and thus both enjoying

privileges and being bound by obligations arising from the membership, is more

difficult than in the past.

Taking Turkey as an example would be proof of the maturity of the European project,

which developed because of the „consequences‟ the big 2004/07 enlargement brought.

In our opinion, changes in applying standards towards candidate states are a logical

consecuence over the passage of time. Since the EU is a developing „construction‟,

the standards are developing as well.

Former EU commissioner for enlargment Olli Rehn said: “EU enlargement has served

as an anchor of stability and democracy and as a driver of personal freedom and

economic dynamism in Europe.”

Nevertheless, the big 2004/07 enlargement has still to be „digested‟, even though

several EU actors argue that the EU is not getting tired of enlargement.

Besides, we encourage the EU institution to improve their control mechanisms in

order to avoid future breaches.

Last but not least, one of the most important changes is referred to the economic

terms, especially after the creation of Eurozone (see for instance Iceland; nevertheless,

this topic is out of the scope of this seminar).

25

VI. BIBLIOGRAPHY/ SOURCES

Isak Hubert, Europarecht I Teil 1, 2010.

Haratsch/Koenig/Pechstein, Europarecht, 2010.

Delegation of the European Commission to the USA, The EU: A Community of Values, in: European

Union (ed.), eufocus.

The Treaty on the European Union.

The Treaty on the Functioning of the European Union.

Protocol (No 3) On the Statute of The Court of Justice of the European Union.

European Charter of Human Rights.

European Council in Copenhagen 21 – 22 June 1993, Conclusions of the Presidency.

European Council in Madrid 15 – 16 December 1995, Conclusions of the Presidency.

Communication from the Commission to the European Parliament and the Council, Enlargement

Strategy and Main Challenges 2006 – 2007 Including annexed special report on the EU's capacity to

integrate new members.

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Assistance (IPA).

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TOWARDS THE ENLARGED UNION - Strategy Paper and Report of the European Commission on the

progress towards accession by each of the candidate countries {SEC (2002) 1400 - 1412}.

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membership of the Czech Republic, Estonia, Cyprus, Latvia, Lithuania, Hungary, Malta, Poland,

Slovenia and Slovakia {SEC (2003) 1200 - 1209}.

Monitoring report on the state of preparedness for EU membership of Bulgaria and Romania, 2006.

CDL-AD(2011)001 adopted in 86th Plenary Session (Venice 25-26/3/2011).

The Fundamental Law of Hungary.

IP/12/395 Hungary - infringements: European Commission satisfied with changes to central bank

statute, but refers Hungary to the Court of Justice on the independence of the data protection authority

and measures affecting the judiciary 25/04/2012.

European Court of Human Rights (2010) Schalk and Kopf v. Austria no. 30141/04 [Case-Law].

IP/12/24 European Commission launches accelerated infringement proceedings against Hungary over

the independence of its central bank and data protection authorities as well as over measures affecting

the judiciary 17/01/2012.

Memo/12/165 Hungary – infringements: Commission takes further legal steps on measures affecting

the judiciary and the independence of the data protection authority, notes some progress on central

bank independence, but further evidence and clarification needed 07/03/2012.

26

COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND THE

COUNCIL, Western Balkans: Enhancing the European perspective.

COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND THE

COUNCIL, Enlargement Strategy and Main Challenges 2011-2012.

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COUNCIL, Commission Opinion on Serbia's application for membership of the European Union,

SEC(2011) 1208.