Conclusions for domestic birds

Albeit it seems as though there is a complex pre-accession strategy that has been in practice for two decades, it should not be assumed that the Union can foresee which country is going to join the club, when and why. Moreover, there is still no clear cut answer as to who controls the democratic terms of enlargement in the broader sense and who is going to be the beneficiary at the end of the enlargement process.¹⁶² Due to the fact that there are so many admission criteria, it is difficult to understand what the EU strongly values and expects from an aspirant.

Initially, it was assumed that Agenda 2000 would bring some clarity to the enigmatic admission requirements; yet, it failed to provide weighting of individual criteria and a system of judging their significance. The consequences of EU enlargement are extensive not only for the institutional set-up and the policies of the Union, but also for the political shape of Europe as a whole. The current representation of Member States in the EU institutions and the organisation of the Council’s structure and voting system are all consequences of enlargement;¹⁶³moreover, enlargement affects

160 M Cremona and C Hillion, ‘L’Union fait la force? Potential and Limitations of the European Neighbourhood Policy as an Integrated EU foreign and Security Policy’ (2006) European University Institute Working Paper EUI LAW 2006/39, 3.

161 R Balfour and C Stratulet, ‘The Enlargement of the European Union’ (2012) European Policy

Centre Discussion Paper 5

<http://www.epc.eu/documents/uploads/pub_3176_enlargement_of_the_eu.pdf> accessed 14 July 2015.

162 Zielonka (n 89).

163 The Treaties of Amsterdam and Nice had already made extensive changes to the system of voting in the Council in order to adapt it to the successive enlargements of the EU. The system of vote weighting has now been abolished and replaced by a new dual majority system. Council of the

European Union (2009)

<http://europa.eu/legislation_summaries/institutional_affairs/treaties/lisbon_treaty/ai0008_en.htm>

accessed 21 March 2015.

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factors such as the budget, the agricultural and the regional policies that are negotiated by the governments of the Member States.¹⁶⁴

Nevertheless, the enlargement of the EU is a political shaping mechanism and thus can be classified as a process of ‘gradual and formal horizontal institutionalization of organizational rules and norms.’¹⁶⁵The process leading to the enlargement of the Union has been segmented into three dimensions or in other words ‘to decisions on formal acts of horizontal institutionalization’; these three dimensions are: the applying states’ enlargement politics, Member State enlargement politics and the EU enlargement politics.¹⁶⁶

Applicant enlargement politics is concerned with why and under which conditions non-members want to become members of an organisation and which type of institutional relationship these non-members desire.¹⁶⁷ Professor Danny Nicol has stipulated that; ‘Human beings are herd animals’ in the world of politics, since they have an urge towards collective action.¹⁶⁸ Although Professor Nicol’s argument is correlated to constitutional reform, it can also be used to explain the reason the government of members choose to join a popular organisation. Thus, non-members are driven to join organisations simply because it is a recurring trait, in other words, a dominant political trend of the age that has been adopted by the majority surrounding them; it contends that desire for membership cannot be seen as somehow uninfluenced by political herding.¹⁶⁹ Likewise, there is herding of existing Member States towards either widening or deepening. Unsurprisingly, herding could be dangerous; logic becomes blurred as the focus is solely on achieving the end goal, meaning that the obstacles preventing this objective are simply bypassed and not eradicated. This is exactly what happened in Cyprus’ EU journey; the Union was so determined to welcome Cyprus into the family that the political conflict on the island was rendered unimportant to that aim, even though the problems that would arise from such a membership were apparent.

164 Schimmelfennig & Sedelmeier (n 95) 501.

165 Ibid 503.

166 Ibid 504.

167 W Mattli, The Logic of Regional Integration. Europe and Beyond (CUP 1999).

168 D Nicol, ‘Progressive Eras, Periods of Reaction and Constitutional Change’ (2014) 15 (3) German Law Journal 437.

169 Ibid 438.

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Member State enlargement politics asks the question, under which conditions a Member State of an organisation, supports or contests enlargement to a specified non-member? Habitually, this dimension has only concentrated on the political intentions of the governments of singular Member States;¹⁷⁰ however, it would be interesting to see theoretical research focus on the intentions of the institutional actors within the organisation, such as the Council, the Commission and the Parliament of the EU.

The EU enlargement politics dimension, analyses the reasons the Union makes a specific State a member or changes its institutional relationship with a non-member.

Within this final dimension, there exist two methodically independent dimensions of enlargement, namely; macro dimension and substantive dimension.¹⁷¹ These two sub-dimensions are the most applicable for the case of Cyprus in terms of understanding the reason why it was accepted into the EU as divided Member State.

The EU is classified as a polity by the macro dimension which deals with the question of applicant selection and traits of national membership of the EU. Hence, it is primarily concerned with why the EU chooses to allow one specific country into the club instead of another country;¹⁷² such as, why the Union preferred to work with just the south of Cyprus instead of the entire island. Secondarily, it questions why the organisation opts for membership instead of another form of integration or no relationship between the non-member and itself.¹⁷³ The substantive dimension of EU politics refers to the existing essence of the EU norms, rules and values that are

‘horizontally institutionalised’.¹⁷⁴ This sub-dimension is predominantly concerned with analysing the results of accession negotiations, the character of pre-accession conditionalities and the nature of SAAs, EAs and Association Agreements. The aim of examining these agreements and negotiations is to bring to light whether or not the results reflect the demands of specific actors within the EU, such as certain dominant Member States, institutional actors, candidate States and interest groups or

170 A Hyde-Price, Germany and European Order: Enlarging NATO and the EU (Manchester University Press 2000).

171 Schimmelfennig & Sedelmeier (n 95) 506.

172 Ibid.

173 The literature on this dimension mainly concerns the eastern enlargement of the EU. L Friis, ‘. . . And then They were 15: The EU’s EFTA Enlargement Negotiations’ Cooperation and Conflict (1998) 33(1) 81.

174 Schimmelfennig & Sedelmeier (n 95) 507.

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countries.¹⁷⁵ Nevertheless, with regards to horizontal institutionalisation, enlargement also affects the new member to the organisation and non-members that are in some way connected to the newly admitted member; such as the effect of the RoC’s membership on Turkey and the TRNC. It should also be noted that membership of the EU alters the actions, interests and persona of governmental actors.¹⁷⁶

The rationalist explanation to enlargement is the most applicable theory to Cyprus’

membership journey even though ‘rational choice’ is not a theory based directly on EU integration or politics; it is a framework for understanding and modelling social and economic behaviour.¹⁷⁷ The rationalist explanation to enlargement revolves around two steps; firstly, the description of the enlargement choices of the applicant and the preferences of the Member States; secondly, the explanation of collective EU enlargement verdicts at macro levels.¹⁷⁸ As contended by Pollack, it cannot be denied that rational choice theories suffer from ‘ontological blindness’ to empirically crucial matters such as ‘the issues of endogenous preference formation and change.’¹⁷⁹Nonetheless, this theory rightly asserts that ‘expected individual costs and benefits determine the applicants’ and the member states’ enlargement preferences.

States favour the kind and degree of horizontal institutionalization that maximizes their net benefits.’¹⁸⁰On the whole, a Member State will prefer the inclusion of a non-member, and a non-member will aim to work its way into the organisation, only if its membership will trigger positive net benefits and that these benefits will surpass the benefits that would come about from an alternative type of horizontal institutionalisation.¹⁸¹

Evidently, the enlargement process is habitually exploited by Member States in order to gain leverage in bilateral polemics with candidate or applicant States.¹⁸² Correspondingly, Hillion asks the question ‘does this mean that the Member States

175 U Sedelmeier, ‘The European Union’s Association Policy towards the Countries of Central and Eastern Europe: Collective EU Identity and Policy Paradigms in a Composite Policy’ (PhD Thesis, University of Sussex 1998).

176 Schimmelfennig & Sedelmeier (n 95) 507.

177 AM Pollack, ‘Rational Choice and EU Politics’ in KE Jørgensen, MA Pollock and B Rosamond (eds), Handbook of European Union Politics (Sage 2006) 31.

178 Schimmelfennig & Sedelmeier (n 95) 510.

179 Pollack (n 177) 32.

180 Schimmelfennig & Sedelmeier (n 95) 510.

181 Ibid.

182 European Union Committee (n 91) Summary.

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have an unfettered freedom to define the modalities of EU enlargement?’¹⁸³ He argues that the ECJ’s Mattheus v Doego¹⁸⁴ ruling infers that the provisions of Article 49 give the Member States such unlimited freedom; the ECJ held that the provisions establish:

[a] precise procedure encompassed within well-defined limits for the admission of new Member States, during which the conditions of accession are to be drawn up by the authorities indicated in the article itself. Thus the legal conditions for such accession remain to be defined in the context of that procedure without it being possible to determine the content judicially in advance.

The ECJ rather explicitly stated that such legal conditions are to be determined by the Member States and that their negotiating powers are to be fully conserved; ‘it is impossible to determine the content of the legal conditions for admission in advance.’¹⁸⁵Enlargement has often been treated as a ‘radical break in the history of the EU’; ¹⁸⁶commentators tend to find the very concept of enlargement mysterious.

However, it can be strongly argued that the process of enlargement and its effects are anything but mysterious; accession is only promoted if Member States believe that enlargement is in their national interest either in the short or long-run.¹⁸⁷ But it should also be noted that membership still remains a matter of State power and national interest.¹⁸⁸ Albeit the candidate States are generally aware that the Member States are playing a pragmatic game, rationalist institutionalism suggests that the adaptational pressure coming from the Union alters the opportunity configuration for utility-maximising national actors in the acceding States. Hence, according to March and Olsen, the EU’s domestic force relies on a ‘logic of consequences’ instead of a

‘logic of appropriateness.’¹⁸⁹ Therefore, the case of Cyprus proves that the EU is aware that it can only impose the strictly necessary criteria upon the candidates;

183 C Hillion, ‘The Limits to Member States’ Discretion in EU Enlargement Negotiations: Turkey’s Accession as a Case Study’ (2007) Demos EUROPA, Centre for European Strategy

<http://www.demoseuropa.eu/upload/editor/demos/File/KOMENTARZE/Ch.Hillion%20july07.pdf>

accessed 8 June 2015.

184 Case 93/78 Mattheus v Doego [1978] ECR 2203.

185 Ibid. See also C Hillion, ‘Negotiating Turkey’s Membership to the European Union: Can the Member States Do as They Please?’ (2007) 3(2) European Constitutional Law Review 269.

186 A Moravcsik and A Vachudova, ‘National Interests, State Power, and EU Enlargement’ (2003) 17(1) East European Politics and Societies 42.

187 Ibid 43.

188 Ibid.

189 J G March and J P Olsen, Rediscovering Institutions: The Organizational Basis of Politics (Free Press 1989) 160.

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190alternatively, the Union could lose out on the benefits that are to arise out of gaining a specific member if that aspirant decides to face the consequences of non-membership rather than undergo painful reforms.

Perhaps, the Member States were adamant that the Greek Cypriot administration would withdraw its application if a settlement prior to accession was set as a pre-accession conditionality and as a result, Greece would veto the customs union;

therefore, the EU felt pressurised to detach the Cyprus problem from the RoC’s membership journey. The satisfaction of the RoC was clearly more important than mediating the Cyprus conflict for the EU; thus, this accession route was planned according to the demands of the applicant and the needs of the individual Member States. Cyprus’ strategic and geographical location offers the Union obvious advantages to increase its control under the Euro-Mediterranean Partnership and moreover, the island offers a crucial trading route for the Union, and for this reason alone, Cyprus’ membership is necessary, if not vital to all other Member States.¹⁹¹ This membership would also give Member States, such as Germany, France and Austria the chance to obstruct Turkey’s EU journey by creating new conditions for the advancement of the accession negotiations.¹⁹²

So, today, the Copenhagen criteria are not the sole source of Union standards for the accession of new States; the conditions are also found in acquis, in the Council Conclusions which set higher standards and in the Treaty of Lisbon, which proclaims that additional conditions for membership can be laid down by the Union via the European Council. As a result, the bar for accession is set higher than in the past and it could also be possible that the standards are further raised during the process, depending on the needs of the existing Member States. Discussions have taken place in Brussels with regards to changing the Copenhagen criteria; however, such proposals have not been translated into political action just yet. For instance, Romania wanted to add the treatment of the Vlach minority on the issues to be assessed prior to granting Serbia candidacy; unfortunately, the other Member States did not agree with this. Yet, this does not rule out the possibility of such proposals

190 Ibid.

191 AC Chrysafi, Who Shall Govern Cyprus: Brussels or Nicosia? (Evandia Publishing UK Limited 2003) 121.

192 S Akşit, Ő Şenyuva and Ç Űstün (eds) Turkey Watch: EU Member State’s Perceptions on Turkey’s Accession to the EU (Center for European Studies, Middle East Technical University 2009).

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returning in the near future.¹⁹³ But, overall, the Member States are able to hijack the accession process to resolve bilateral issues to their own advantage;¹⁹⁴ Croatia’s negotiations were blocked for a year as a result of a disagreement with Slovenia over the Gulf of Piran.¹⁹⁵ With regards to the CEECs, the Union sponsored an initiative through which each country signed bilateral and multilateral agreements with its neighbours on mutual recognition of minorities, borders and good neighbourly relations, before the accession negotiations commenced. Moreover, regional cooperation was set as a requirement for the Balkans after the initiation of the Stabilisation and Association Process, which came after the war for Kosovo.¹⁹⁶ Thus, there were means of making the resolution of the Cyprus problem a requirement for accession. However, it must be highlighted that the enlargement process in itself is bilateral and thus cannot incorporate such conditions. Also, the Union does not have a common definition of a ‘minority’, does not have legislation in the field, and has no acquis on border problems; ipso facto, its policy formats lack the power to alter the status quo.¹⁹⁷

Even though enlargement is the best form of dealing with any issues on the Union’s doorstep and it is a policy field which helps maintain the Union’s credibility as an organisation which eradicates conflicts in Europe, the problems that have surfaced as a result of the RoC’s membership are a direct consequence of its inclusion in the family. The EU has solidified a pre-existing border in Europe by welcoming a

divided state.¹⁹⁸

193Balfour & Stratulet (n 161).

194 The Commission, in its 2009 strategy paper, referred to the tendency of bilateral issues damaging the enlargement process. See^: European Commission, ‘Communication from the Commission to the European Parliament and the Council - Enlargement Strategy and Main Challenges 2009-2010’ COM (2009) 533, 6. The Commission repeated its concern in its 2010-2011 strategy paper. See European Commission, ‘Communication from the Commission to the European Parliament and the Council: Enlargement Strategy and Main Challenges 2010-2011’ COM (2010) 660, 11. C Hillion, ‘EU Enlargement’ in PP Craig and G De Burca (eds) The Evolution of EU Law (OUP 2011) 210.

195 R Balfour and D Basic, ‘A Bridge over Troubled Borders: Europeanising the Balkans’ (EPC

Policy Brief, European Policy Centre November 2010)

<http://www.epc.eu/documents/uploads/pub_1170_a_bridge_over_troubled_borders.pdf> accessed 15 July 2015.

196 Ibid.

197 Ibid.

198‘As long as Cyprus is divided, in a way, Europe will be divided.’

H Van Rompuy, President of the European Council, Speech at the Official Opening Ceremony of the Cyprus Presidency at Nicosia on 5 July 2012, EUCO 137/12

<http://www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/en/ec/131560.pdf> accessed 14 July 2015.

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5.The Accession and The EU’s