The Copenhagen Criteria: Coping with Integration?

By Isabella Newton

With the steep decline of democracy in Poland and Hungary, the effectiveness of the Copenhagen Criteria at ensuring integration has been called into question. Does the Criteria ensure integration as it did in the case of Croatia or has it failed as occurred in Poland? In this blog post, it will firstly be argued that integration through the Copenhagen Criteria has been successful for some states however in retrospect its inherent vagueness and lack of enforcement mechanism has been its undoing.

The Copenhagen Criteria was created in 1993 to establish clearly what the European Union required for states to become members; a “stability of institutions guaranteeing democracy, the rule of law, human rights and respect for and protection of minorities”^[1]. Candidate countries are also required to accept the acquis Communautaire and  demonstrate a degree of economic stability that could integrate successfully with the EU^[2]. This form of Europeanisation is representative of historical institutionalism, as national policy is dictated by EU organisations^[3]. Throughout this blog post, the critique will centre primarily on the political aspect of the Criteria.

Croatia is one example where the Copenhagen Criteria has been successful. Declaring independence from Yugoslavia in 1991, the state sought to join the EU in 2003. In order to do so however it had to address issues of non-compliance with the International Criminal Tribunal of the Former Yugoslavia, a weak judicial system and limited protection for the Roma and Serb minority^[4].

It also was required to comply with the Stabilization and Association Agreement, designed to ensure stability and peace in the West Balkans^[5]. It is notable how the institution of the EU, was decisive in Croatia’s national policy, with the country creating the Ministry of Foreign Affairs and European Integration, to address the requirements set out by the EU^[6]. Croatia effectively met the requirements of the Copenhagen Criteria and was granted membership on July 1, 2013. Despite its failures in adequately protecting refugees and disabled people, the state has not greatly drawn the ire of the European Union^[7]. An authoritarian regime was transformed into a democratic state, demonstrating how the Copenhagen Criteria can effectively integrate states into the European Union.

But, how would one measure the stability of institutions guaranteeing democracy? Or define rule of law? Or what constituted an adequate level of protection for minorities? The Copenhagen Criteria stipulated these terms for membership yet did not initially define them. To define them, the EU would need to formulate a clear political criterion, that it’s 15 member states in 1993 already complied with, all whilst acknowledging their diverse legal traditions.^[8].

The EU somewhat met this challenge through Accession Partnerships, the Agenda 2000 and the codification of these values in Article 2 of the Treaty of the European Union^[9],however there is no document that states clearly what these values mean and how it is to be enforced^[10]. This allows the EU Commission to define the process of accession and “control conditionality without input from the candidate or oversight”^[11], creating an asymmetrical power relationship. States if they wish then to be members of the EU, endure an accession process that is ill-defined and reliant on the whims of the EU Commission, with the process characterised as “the fairy godmother casts the spell and the poor girl must conform to and be satisfied with the transformation she receives”^[12].

The Copenhagen Criteria is likewise plagued by the problem of enforceability. This issue has become increasingly problematic in the last decade with the rise of populism and nationalism in Europe. The current mechanism to enforce the Copenhagen Criteria is Article 7 of the Treaty of the European Union^[13], that has a preventative mechanism, ‘the bark’ that warns states if they are at risk of breaching values and then ‘the bite’, the implementation of sanctions if there has been a breach^[14]. For sanctions to be enforced, it requires a unanimous vote from the European Council. However, the actual implementation of this enforcement mechanism towards Poland has been far from effective, demonstrating flaws in the mechanism.

Poland since 2015, under the leadership of the Law and Justice Party, has pursued an illiberal revolution, weakening the independence of the judiciary, limiting the power of the media and pursuing controversial electoral reform^[15]. As Article 7 is characterised as a “nuclear and practically unfeasible option”^[16], the EU utilised it’s Rule of Law Framework, an early warning system that focuses on a discursive approach to remedying rule of law violation^[17].

However, this mechanism is plagued with the same problems as the Copenhagen Criteria, there is no clarity on what constitutes a ‘systemic breach’ and the Commission has discretion as when to use it^[18], it’s decision to use it against Poland and not Hungary raising questions of partiality. If Article 7, were to be used, it would likely fail, as it requires a unanimous vote and Hungary has stated that it would not vote against Poland^[19]. Hence the EU is trapped with two mechanisms that have limited use and has failed to stop the decline of human rights in two EU nations.

The Copenhagen Criteria is an ineffective tool for ensuring integration. Whilst it was successful for some countries, such as Croatia, it’s vagueness and lack of enforceability has resulted in the rise of two illiberal democracies in Europe. Ultimately, the EU must decide then whether it can continue to cope with the Copenhagen Criteria.

[1]European Council (1993) Presidency Conclusions, Copenhagen European Council, June 21-22. Copenhagen: European Council, 7Aiii.

[2]Christopher Riches and Jan Pamowski, Copenhagen Criteria,https://www.oxfordreference.com/view/10.1093/acref/9780191870903.001.0001/acref-9780191870903-e-2592, (22 February, 2020).

[3]Maria Catlina Georgescu, “Europeanization Theories Revisited through Historical Institutionalism. EU as a Public Policy Role Model for Post-Communist South-Eastern Europe in the Field of Security,” Revista de Stiinte Politice, no. 42 (2014): p. 138.

[4]Genta Stafaj, “From Rags to Riches: Croatia and Albania’s EU Accession Process through the Copenhagen Criteria and Conditionality,” Fordham International Law Journal, no. 37 (2014): p. 1709-1710.

[5]Iris Goldner Lang, “The Impact of Enlargement(s) on the EU Institutions and Decision-Making Special Focus: Croatia.” Yearbook of European Law, no. 31 (1) (2012): p. 475.

[6]Maria Catlina Georgescu, “Europeanization Theories Revisited through Historical Institutionalism. EU as a Public Policy Role Model for Post-Communist South-Eastern Europe in the Field of Security,” Revista de Stiinte Politice, no. 42 (2014): p. 143.

[7]Human Rights Watch: World Report 2020, https://www.hrw.org/world-report/2020/country-chapters/european-union, (24 February 2020).

[8]Ronald Janse, “Is the European Commission a Credible Guardian of the Values? A revisionist account of the Copenhagen Political Criteria During the Big Bang Enlargement,” International Journal of Constitutional Law, no. 17(1) (2019): p. 51.

[9]Consolidated Version of the Treaty of the European Union Article 2, https://eur-lex.europa.eu/eli/treaty/teu_2012/art_2/oj, (25 February 2020).

[10]Dimitry Kochenov, “Behind the Copenhagen Façade. The Meaning and structure of the Copenhagen Political Criterion of Democracy and the Rule of Law,” European Integration Online Papers, no. 8(10) (2004): p. 7.

[11]Genta Stafaj, “From Rags to Riches: Croatia and Albania’s EU Accession Process through the Copenhagen Criteria and Conditionality,” Fordham International Law Journal, no. 37 (2014): p. 1723.

[12]Ibid.

[13]Promoting and Safeguarding EU Values, https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=LEGISSUM%3Al33500, (25 February 2020).

[14]Martina Coli, “Article 7 TEU: From a Dormant Provision to an Active Enforcement Tool,” Perspectives on Federalism, no. 10(3): p. 278.

[15]Ibid p. 285-289.

[16]Ibid, Coli p. 274.

[17]Dimitry Kochenov and Laurent Pech. “Better Late Than Never? European Commission’s Rule of Law Framework and It’s First Activation,” Journal of Common Market Studies, no. 54(5) (2016): p. 1066.

[18]Dimitry Kochenov and Laurent Pech. “Better Late Than Never? European Commission’s Rule of Law Framework and It’s First Activation,” Journal of Common Market Studies, no. 54(5) (2016): p. 1070.

[19]Ibid, p. 1065.

Bibliography:

• Christopher Riches and Jan Pamowski, Copenhagen Criteria,https://www.oxfordreference.com/view/10.1093/acref/9780191870903.001.0001/acref-9780191870903-e-2592, (22 February, 2020).
• Consolidated Version of the Treaty of the European Union Article 2, https://eur-lex.europa.eu/eli/treaty/teu_2012/art_2/oj, (25 February 2020).
• Dimitry Kochenov, “Behind the Copenhagen Façade. The Meaning and structure of the Copenhagen Political Criterion of Democracy and the Rule of Law,” European Integration Online Papers, no. 8(10) (2004): 1-24.
• Dimitry Kochenov and Laurent Pech. “Better Late Than Never? European Commission’s Rule of Law Framework and It’s First Activation,” Journal of Common Market Studies, no. 54(5) (2016): 1062-1074.
• European Council (1993) Presidency Conclusions, Copenhagen European Council, June 21-22. Copenhagen: European Council.
• Genta Stafaj, “From Rags to Riches: Croatia and Albania’s EU Accession Process through the Copenhagen Criteria and Conditionality,” Fordham International Law Journal, no. 37 (2014): 1683-1714.
• Human Rights Watch: World Report 2020, https://www.hrw.org/world-report/2020/country-chapters/european-union, (24 February 2020).
• Iris Goldner Lang, “The Impact of Enlargement(s) on the EU Institutions and Decision-Making Special Focus: Croatia.” Yearbook of European Law, no. 31 (1) (2012): 473-502.
• Maria Catlina Georgescu, “Europeanization Theories Revisited through Historical Institutionalism. EU as a Public Policy Role Model for Post-Communist South-Eastern Europe in the Field of Security,” Revista de Stiinte Politice,no. 42 (2014): 135-146.
• Martina Coli, “Article 7 TEU: From a Dormant Provision to an Active Enforcement Tool,” Perspectives on Federalism, no. 10(3): 272-302.
• Promoting and Safeguarding EU Values, https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=LEGISSUM%3Al33500, (25 February 2020).
• Ronald Janse, “Is the European Commission a Credible Guardian of the Values? A revisionist account of the Copenhagen Political Criteria During the Big Bang Enlargement,” International Journal of Constitutional Law, no. 17(1) (2019): 43-65.

 

Biography

Isabella Newton is a third year International Studies and Law student. She is on exchange at UCD for the autumn semester, from the University of New South Wales, Sydney. This blog post was written as part of coursework for the module ‘Introduction to EU Politics INRL20160.