Fundamental Rights and EU Enlargement

Fundamental Rights and EU Enlargement

1. Introduction: the ascendance of rights in an enlarged EU

In the first decade of the 21st Century, the European Union has undergone two major, historical transformations which progressively altered its structure and significance: the constitutionalization process and eastward enlargement. The constitutionalization process is incomplete and may be seen to be undergoing a crisis of sorts; after a series of disappointing referenda on the Treaty Establishing a Constitution for Europe in France and the Netherlands in 2007, it was replaced by a more modest Treaty of Lisbon, which entered into force at the end of 2009. The Treaty of Lisbon takes in many of the ideas of the proposed Constitution for Europe: most importantly, for our purposes, the Treaty formally entrenches at the EU level a constitutional (in its form and substance) Charter of Fundamental Rights, identifies human rights as a foundational value of the Union (Article 2), and commits the EU to accede to the ECHR. The second process, of eastward enlargement, has to some degree been completed. However, the eastern and south-eastern boundaries of the Union are by no means fixed. With Croatia likely to accede in July 2013 (subject to ratification of the Accession Treaty by all the Member States and Croatia), several countries in the region are officially considered candidates: Serbia, Macedonia, Montenegro, and Turkey are, at the time of writing, the only recognized candidate states in the region; ‘potential candidates’ (including Albania, Bosnia and Herzegovina, and Kosovo), and ‘not-yet’ candidates but states probably willing to join the EU, may include Ukraine and Moldova. Each of these two processes is of strategic, historic importance; taken together, they offer both a major risk to, and a major opportunity for, the future of Europe.

The risk lies in the potential for a negative interaction between these two processes: traditionally, the ‘deepening’ or entrenchment of certain values (often associated with constitutionalization) is seen as antithetical to the ‘widening’ of the integration process. As some authors have noted, these processes (constitutionalization and enlargement) have ultimately different and mutually incompatible dynamics. Constitution-making is a finalité-oriented and an open-ended, dynamic process which requires constant contestation, argument, and interchangeability in the roles of norm-setter and norm-follower. Enlargement, by contrast, is rooted in ‘conditionality’, and is viewed as a process in which the rules of accession are set in stone, frozen in a particular historical moment, with the rule-followers subordinate to the rule-setters; a ‘take it or leave it’ principle permeates the whole process.1 (This is different from the case of the Council of Europe, as described in Chapter 1.) In addition, there is concern that the effect of enlargement upon internal EU democracy (for what it is worth anyway) is detrimental because ‘enlargement may worsen the alleged democracy deficit by diluting even more the voice of the single citizen in the European decision-making process; it may also make the prospect of the emergence of a true European demos more remote than before’.2

In this chapter the focus is on the opportunities rather than the risks stemming from the interplay between EU enlargement and constitutionalization, that is, on the synergies rather than the tensions. I start from the proposition that the parallelism of Europe’s constitutionalization and enlargement is not a coincidence at all, but rather that the enlargement has been a powerful reason motivating constitutionalization (or, as Bruno de Witte puts it, enlargement was a constitutional agenda setter for the EU3). The considerations in this chapter are confined to only one aspect of constitutionalization in the EU: the inclusion of fundamental rights within the constitutional structure of the Union, as symbolized by the adoption of the Charter of Fundamental Rights. The Charter was initially merely a political or aspirational document (though with discernible legal effects), but was subsequently, under the Lisbon Treaty, elevated to a legal status equivalent to that of a treaty (by ‘cross-referencing’). The parallelism of the enlargement and rights constitutionalization was perhaps best encapsulated by a Latvian diplomat in Brussels, who said: ‘We see the adoption of the Charter as a complimentary [sic] process to that of the EU enlargement.’4 This chapter can be seen as an attempt to analyse this ‘complementarity’.

This aspect of the significance of the Charter of Fundamental Rights is particularly important when considering the relationship between the Charter (viewed as a reflection of the place of human rights in the EU) and enlargement (viewed both in terms of the accession process itself and the post-accession state of affairs). Part 2 of this chapter considers the positive role of the Charter in reducing some disturbing aspects of human rights conditionality during the accession process. In part 3, there is a brief survey of the role that CEE candidate states (as they were then) actually played (or failed to play) in the process of drafting and adopting the Charter. In part 4, the focus shifts towards exploring the ‘sovereignty conundrum’: an unease that may have been felt within the CEE candidate states regarding their loss of sovereignty upon joining the EU. Although this unease could have adversely affected support for accession and adversely affect their commitment to political integration within the EU, this has been greatly minimized by the perception of the EU as a human rights-relevant polity. It is in this way that the Charter, as the epitome of the EU’s commitment to strong human rights protection in Member States and in its external policies, may be seen as instrumental in both the enlargement, and the socialization of the ‘enlargees’ into a politically integrated, constitutionalized Union.

Part 5 of this chapter surveys the history of adoption by the EU of one of the central aspects of any organization or polity that wants to take human rights seriously, that is, the availability of institutional devices to monitor and scrutinize breaches of recognized rights. The significance of this mechanism to the EU is reviewed, emphasizing the point that it was the prospect of eastward enlargement that prompted the EU to adopt and enhance these institutional devices. EU decision-makers had cast a cautious sideward glance at the new entrants from Central and Eastern Europe, particularly with regard to the fields of human rights and democracy: in this way, somewhat ironically, the eastward enlargement of the EU has been an important impetus for the supranational constitutionalism of the Union.

In the conclusion, an attempt is made to tie these various threads of the chapter together by reflecting upon the synergy between the enlargement and the rights-related aspects of constitutionalization. I will return to the point that the concurrence of enlargement and constitutionalization offers not only risks but also opportunities for the EU as a whole.

2. The EU Charter and human rights conditionality

As I demonstrated some time ago, in more detail, there was a parallelism between the enlargement dynamic and the dynamic of the EU adopting the human rights agenda.5 This parallelism responds to a frequently noted contrast between the scope of human rights which were the subject of internal EU concerns and human rights conditionality applied by the EU to candidate states in Central and Eastern Europe. As Andrew Williams remarked, in its enlargement strategy the EU adopted a policy ‘whereby individual applicant states are subjected to a process of human rights scrutiny and intervention … which possesses no imitation within the European Union’, and as a result ‘the scope of rights so scrutinised in the accession criteria extends some way beyond that which falls within the European Union’s internal concerns’.6

Soon after the collapse of Communism, there was a good deal of discussion between the European Community and CEE states about human rights being an important means of embracing Central and Eastern Europe as part of the larger, pan-European entity that had been forming since the Second World War on the Western side of the Iron Curtain. As early as 1990, the European Council declared (at its meeting in Dublin on 28 April) that ‘[the] process of change brings ever closer a Europe which, having overcome the unnatural divisions imposed on it by ideology and confrontation, stands united in its commitment to democracy, pluralism, the rule of law, respect for human rights, and the principles of market economy’.7 But it was no more than political rhetoric. The main rationale for early cooperation agreements (the ‘Europe Agreements’) had much more to do with the promotion of a free market and the twin goals of stability and international security than human rights and constitutionalism. This changed with the so-called Copenhagen criteria of 1993: the European Council established that in order to be successful in its pursuit of full membership the applicant state must enjoy, inter alia, ‘stability of institutions guaranteeing democracy, the rule of law, human rights and respect for and protection of minorities’.8 This was then followed by human rights scrutiny within the framework of the so-called ‘accession partnerships’ in 1998—a system whereby the achievement of specific ‘objectives’ for particular candidate countries, itemized within Partnership documents, were assessed within the regular annual country reports.

The requirements articulated in the Copenhagen criteria had largely been taken for granted within the European Community itself. Never before 1993 were they included in a formal set of criteria for applicant countries. This was the case both because earlier candidate states (in the enlargements prior to 2004) were largely considered to be above reproach and because a fundamental ambiguity has persisted about whether human rights regulation is relevant to the EU at all.

This ambiguity stemmed from two facts, pulling in opposite directions. First, the absence of specific treaty bases granting legal powers to the European Community in the field of human rights meant that the competence of the European Community in this field was uncertain. Although in the Preamble to the Single European Act of 1986, Member States declared their determination ‘to work together to promote democracy on the basis of fundamental rights recognized in the constitutions and laws of the Member States, in the Convention for the Protection of Human Rights and Fundamental Freedoms’, no treaty provision explicitly identified human rights as a field of EU competence. Secondly, a long line of ECJ jurisprudence has declared respect for fundamental human rights to be part of the EU legal system, culminating in general pronouncements in Article 6 of the Treaty on European Union (TEU) about the EU being ‘founded on’ respect for human rights; in addition, the Article 7 mechanism for EU intervention in its Member States in the field of human rights, explored in more detail in part 5 of this chapter, also suggests ‘a significant degree of competence in the field of human rights’.9 As a consequence, EU legal scholars may keep disagreeing about whether the EU is ‘rights-based’, and how central the rights are to the EU itself: there are those who claim that European integration has been, from its very beginning, founded on fundamental rights,10 and on the other hand, those who express a high degree of scepticism about viewing human rights as the core of the EU.11

In the context of eastward enlargement, there was a distinct contrast between the rules for existing members and the admission criteria for prospective members. The inclusion of a reference to the human rights principles enunciated in the Treaties of Maastricht and Amsterdam might have been seen as reducing this contrast. On the basis of this inclusion, it has also been claimed that human rights were proclaimed in the Amsterdam Treaty as explicit preconditions for EU membership and, to some extent, can be seen as a ‘codification’ of the Copenhagen criteria.12 However, it has to be noted that the Copenhagen criteria were not coextensive with the principles proclaimed in Article 6(1) TEU. In particular, the Copenhagen criteria reference to the protection of minorities is missing in the Treaty’s human rights provisions. However, even if Article 6(1) TEU, in connection with Article 49, which described respect for the principles of Article 6 as a condition of membership of the Union, taken together with the procedure for the suspension of rights of Member States in the case of breach of these principles (Article 7 TEU), are viewed as having alleviated the contrast between the external and internal EU human rights requirements, the fact remains that none of the ‘older’ Member States faced democracy and human rights-based preconditions at the point of their admission. However, one must not exaggerate the practical rather than symbolic political role played by the Copenhagen criteria in the control of the candidate states’ compliance with the conditions of membership (a topic explored in more detail in Chapter 4): as far as CEE states are concerned (with one exception) there was never an overall negative ‘grade’ given to any of the applicant states based on the Copenhagen criteria in the Commission’s annual opinions on progress towards accession.13

The causes of this contrast are understandable, as there had been a natural suspicion in Western Europe concerning the depth and sincerity of democratic transformations in CEE states. For reasons of geographical and cultural proximity, this suspicion was not felt by the then Member States when Spain, Portugal, and Greece were to join the European Community after their abandonment of authoritarian rule. The absence of democracy in these three Southern states was seen to be an aberration, while in Central and Eastern Europe it was regarded as a chronic state of affairs. As George Schöpflin notes:

The burdens of the short- and long-term past, the negative practices of post-Communism itself, the dangers of spill-over from the interface between democracy and authoritarian systems … all implied that greater vigilance [on the part of the EU] was needed. To that extent, democracy and liberalism could be taken for granted in Western Europe, whereas in Central and South-Eastern Europe it could not.14

Schöpflin is right, and his remarks suggest that to characterize a practice discussed here as a case of ‘double standards’ is not necessarily to condemn it. The EU’s use of double standards in its human rights vigilance was largely justified, not least because it was welcomed by democratic activists in the candidate states themselves, who saw EU human rights conditionality as an additional tool for consolidating democracy and the protection of rights in their own countries. This is an important point: from the internal perspective of CEE candidate states, the double-standards approach had not necessarily been viewed with hostility; indeed, sometimes it was applauded as a catalyst for the adoption of more democratic and consensual institutional designs by candidate states.15

However, the contrast between ‘external’ and ‘internal’ standards became, with time, intolerable. From the perspective of candidate states, the contrast led to uncertainty about which specific standards and criteria (beyond the vague formulations of the Copenhagen criteria) would be used as a yardstick to assess their alignment with EU-wide human rights standards. Koen Lenaerts articulates the problems associated with the ‘overall lack of transparency in the external human rights policy of the European union’ as emanating from the fact that ‘the countries applying to join the Union … are not aware of the basis on which their performances will be evaluated by the EU’.16 The EU Charter of Fundamental Rights could be seen as a remedy to this problem—a step taken in order to close the gap between external requirements and internal human rights policy, and also to add a degree of clarity and specificity to the actual content of the human rights conditions. This much was acknowledged by the European Commission itself, which suggested that ‘the adoption of a catalogue of rights will make it possible to give a clear response to those who accuse the EU of employing one set of standards at the external level and another internally’.17 From the perspective of the candidate states, closing the gap between external and internal human rights standards helped to dispel the suspicion that human rights conditionality had been tailored as a somewhat cynical instrument which would allow access to be denied to selected candidate states even after they had fulfilled all the other, more tangible and verifiable, requirements of the acquis. Human rights conditionality rendered the EU a ‘moving target’ for the candidate states, in effect allowing the EU to keep changing the rules of the game due to its position as an arbiter of what constituted meeting the vague Copenhagen tests.

To be sure, the moving-target factor could not be dismissed as merely a device to prevent bona fide candidates from joining the club in case the political will on the part of the older members to proceed with enlargement evaporated. The EU constitutional logic (of which the human rights element is an ingredient) is in tension with the logic of conditionality: the former is dynamic and evolving in a direction which does not have clear, consensually agreed-upon parameters; the latter is based on the idea of a static, identifiable, and unchanging set of conditions. As Antje Wiener argued: ‘While the participants in the constitutional debate find it hard to agree on a compromise towards thinning out a thicket of institutionalized rules and norms, the candidate countries are often forced to comply with norms which remain dubious and under-specified in the EU’s very own context.’18

During their so-called ‘auditions’ in the course of preparing the draft Charter, the concerns frequently expressed by the representatives of candidate states, that the Charter should not add to the conditions and burdens of the acquis,19 reflect that reality of the moving target: candidates wanted to know that the conditions of membership would not keep changing in the period between the initial application and the final vetting of the applicant’s profile. But, on the other hand, the fact that the conditions of membership were changing was not (or was not only) an expression of a manipulative politics on the part of the Member States but (also) an expression of the very character of the constitutionalization of the EU, with the dynamic towards an uncertain ‘finality’ built into it. It was also a result of the obvious fact that the EU simply did not have something that could be called a ‘democracy and human rights acquis’: the vague formulae of the Copenhagen conditions did not refer back to a specific set of detailed legal rules and policies about what counts as ‘democracy, the rule of law, human rights and respect for and protection of minorities’ within the EU, because such a set did not exist. The vagueness of the formulaic conditions was a consequence of the lack of powers and policies of the EU in these fields: the Copenhagen conditions were all there was.

Therefore, the Charter could be seen as a partial solution to the twin problems of double standards and the moving target: by codifying rights within the EU, it extended the rights regime used externally to the current Member States (hence the solution to the double-standards problem) and petrified the understanding of the minimal yardstick of human rights within the EU (hence the solution to the moving-target problem). Naturally, this was only a partial and imperfect solution. As to the double-standards problem, the final clauses of the Charter clearly said that its provisions only apply to the Member States when they are implementing EU law. By contrast, human rights conditionality, as reflected in the annual reports of the Commission on candidate states’ progress towards accession, scrutinized in an unprecedented manner a broad spectrum of political and legal matters in candidate states, regardless of whether these matters could be characterized as ‘implementation of EU law’. As for the moving-target problem, the characterization of the Charter’s function as freezing or petrifying the understanding of human rights would be a wild exaggeration: the vague, open-ended wording used by the Charter (as, unavoidably, by any constitutional bill of rights) lends itself to a dynamic, changing interpretation by the judicial and political branches. So, in this regard, we are talking about a degree rather than a qualitative leap. But differences of degree matter and the Charter did reduce both the external–internal human rights scrutiny gap and the uncertainty produced by evolving admission criteria.

I do not wish to claim that this consideration actually motivated the main players involved in the drafting of the Charter, although we have some evidence that this motive had not been completely absent. Indeed, this was openly admitted by the Commission in the eleventh hour of the preparation of the draft Charter: ‘the adoption of a catalogue of rights will make it possible to give a clear response to those who accuse the Union of employing one set of standards at external level and another internally’.20 It could hardly be stated more clearly. However, the statement seems to be more of an afterthought rather than a motivating factor for launching the Charter. The official documents do not show that the enlargement factor played any significant role in the context of drafting the Charter. The prospect of enlargement does not figure in the 1999 Cologne European Council decision on the drawing up of a Charter21 (the foundational document for the drafting of the Charter); likewise, the enlargement prospect was not mentioned in the European Parliament’s Resolution on the Drafting of the EU Charter of 16 March 2000,22 the Opinion on the Charter issued by the Economic and Social Committee on 20 September 2000,23 nor the Preamble to the Charter. Interestingly, the Preamble reached out in its language even to ‘future generations’24 but not to the actual peoples living just across the current EU borders, as the Union was at that time.

There were some minor exceptions to the relative silence of the main Charter players on EU enlargement. At a time when the preparation of the draft was at a crucial stage, the Commission in its Communication on the Charter in September 2000 felt compelled ‘to dispel all fears about the impact of the Charter on enlargement’.25 Fears of having to face the new standards, over and above the acquis, had been emphatically expressed by some applicant states.26 The Commission explained that the Charter would not impose any additional conditions on applicant countries: this was in line with the general tenor of the Communication, which emphasized that the Cologne mandate to the Convention was ‘a task of revelation rather than creation, a compilation rather than innovation’.27

In the context of ‘dispelling the fears’ that new standards might be imposed on applicant countries, the Communication cites the example of protection of personal data, as being simply a codification of the ‘established body of the EU law’ by the Charter. The implication is that applicant countries, by adopting the acquis, also accept the Charter rules. It may be argued that this is somewhat inconsistent with the admission by the Commission (earlier in the same Communication) that the Charter ‘should add real value to the abundance of existing legal and political texts dealing with human rights in Europe’ by, among other things, ‘enshrining certain “new” rights which already exist but have not yet been explicitly protected as fundamental rights’.28 It is also interesting to note that in the section of the Communication dealing with the relationship between the Charter and enlargement, the Commission emphasized the beneficial consequences of the Charter for the citizens of applicant countries, namely that it would provide them with ‘legal certainty’.29 However, the potential negative significance stemming from this is that the impact of the constitutional traditions of CEE states upon the Charter was never contemplated. In this way, the applicant countries were not seen as serious and equal partners in the debate about the future constitution of Europe but as passive beneficiaries of the Union’s treatment. In effect, they could take it or leave it, but not shape it.

Some students of EU law did make a claim about the link between the Charter and the prospect of the enlargement. George Bermann said:

I certainly view the Charter of Fundamental Rights project as … having been pursued in large part in consideration of the EU’s prospective enlargement and therefore rightly counted as among the Union’s legal response to enlargement. This is not to say that human rights protection did not need to be fortified throughout the Community generally, or that the Charter project would not have been pursued but for the prospect of eastward enlargement. But that prospect furnished an important impetus.30

It certainly makes good sense to connect the Charter and the enlargement in this way, but it is not obvious that the enlargement factor played any significant role in the actual process of the drafting of the Charter. The Cologne summit of June 1999 announced that the main motive for launching the Charter was the perception that the protection of fundamental rights—and its visible symbol in the form of the Charter—was an indispensable factor of the EU’s legitimacy within the existing borders of the EU. The summit expressly drew a link between the protection of fundamental rights and the legitimacy of the EU, but the intended audience was the public in the then current Member States rather than the applicant states.31

Regardless of the subjective motivations of those who launched the Charter project and those who pursued it up to the Nice summit, the objective function of the Charter had been, among other things, to facilitate the EU enlargement by reducing the above-noted problems related to human rights conditionality. And this is not mere speculation: at least some applicant states ascertained the benefit of the Charter precisely in this way. An official document of the Polish Ministry for Foreign Affairs entitled ‘The Treaty of Nice: The Polish Point of View’, in the section devoted to the Charter of Fundamental Rights, states: ‘The Charter places difficult challenges in front of the candidate-states, but at the same time, it … renders the procedures of accession to the EU more transparent and the assessments [of whether a candidate state meets the accession criteria]—more predictable’.32

3. CEE candidate states and the Charter

In principle, there is nothing puzzling about the fact that candidate states have no meaningful impact upon the rules of the organization to which they apply. This was also the case with the CEE candidate states (as they were prior to 2004) and the EU Charter of Fundamental Rights. But the matter is not that simple, and it is useful to look more carefully at whether, and how, the Charter drafters attempted to create some space for the CEE applicants to have their say about the codification of rights for the EU, and how those applicants took advantage of this opportunity.

The inclusion of the candidate states in the process of drafting the Charter was little more than symbolic, but there was inclusion nevertheless. The working methods for the Body to Elaborate a Draft Charter, as decided in Tampere, envisaged that there would be an ‘exchange of views with the applicant States’.33 The candidate countries’ ‘audition’ took place on 19 June 2000 in Brussels, with the participation of representatives from all CEE candidate states, as well as Malta, Cyprus, and Turkey. As one commentator familiar with the event observed: ‘The adopted solution was satisfactory neither for the candidate states themselves, which could not express themselves fully in the course of a single audition, nor for the members of the convention which were unable to understand the perceptions of the candidates.’34 The representatives delivered their speeches, mostly full of platitudes and diplomatic praise for the Charter drafters. Without exception, they expressed strong support for the Charter and some of them made special efforts to boast that their own countries had equivalent, if not broader, charters of rights in their own constitutions.35

Of the ten CEE applicant countries, only the representatives of Slovenia, Hungary, and Slovakia made specific suggestions regarding the substance of the draft Charter. The Slovenians proposed the inclusion of rights ‘pertaining to the protection of national minorities, and rights protecting vulnerable groups, in particular children and disabled persons’.36 The same proposal was made by the Hungarians.37 Notwithstanding these comments, there is no mention of minorities in the final text of the Charter other than the prohi bition of discrimination based, inter alia, on membership of a national minority and the requirement to protect cultural, religious, and linguistic diversity.38 As far as the rights of the child and the disabled are concerned, these rights do figure in the Charter but they had been already included (albeit in a slightly different form) in the draft of the Charter before the audition, so their inclusion cannot be credited to input from CEE states. By contrast, the general right of protection for members of ‘vulnerable groups’ was not included in the Charter.

The only other candidate state to propose a list of specific provisions to be included in the Charter was Slovakia.39 Its proposals ranged from innocuous to controversial to eccentric and, in most cases, were rightly ignored. They included

(1) a reference to the natural-law origins of human rights in the Preamble;

(2) protection of human life ‘already before birth’;

(3) in the provisions regarding the right to join political parties, adding a ban on political parties ‘advocating any form of intolerance, hatred, discrimination or violence’;

(4) adding a separate article on the rights of the elderly (such an article was included in the Charter);

(5) adding an instruction obliging the EU to pursue policy aimed at the ‘preservation and protection of cultural and historic monuments of its Member States’.

The ‘audition’ records do not reveal any other attempts by candidate states to suggest further modifications of the draft Charter. It was their last (and only) opportunity to have their views about the Charter heard before the Nice summit. It can be confidently concluded that the impact of candidate states upon the Charter has been negligible.

There was another opportunity to revisit the issue of the Charter during the Convention on the Future of Europe of 2002–03, the central aim of which was to consider whether a Constitution for the EU should be adopted40 (and this included the Charter as one of its main ingredients). In designing the procedures for the Convention, the European Council decided that ‘the accession candidate countries’ would be represented in the Convention in the same way as the Member States (that is, by one government and two national parliament members per country) and would be able ‘to take part in the proceedings’. Their status had been designed quite ingeniously as constituting less than a full vote but more than a ‘voice but no vote’, in that candidate states would not ‘be able to prevent any consensus which may emerge among the Member States’. Sensibly, this deprived them of a power of veto.

During the event, representatives of candidate states participated actively, and as the working method turned out to be by acclamation or consensus rather than the formal vote, their different status was of no great import. Yet, they did not have a real opportunity to influence the text of the Charter, as it had been pre determined before the Convention that the only matter related to the Charter that would be discussed by the Convention was its status rather than its content. The substance, as agreed upon in Nice, was regarded as final and non-negotiable. Hence, the potential of the Charter to penetrate the public discourse in Central and Eastern Europe about the constitutional future of the EU has largely been lost.

4. The sovereignty conundrum and the Charter

The conventional wisdom, heard so many times in discussions regarding the accession of CEE countries to the EU, recognized that there was a cruel irony in the process of accession. As Jürgen Habermas noted with certain bemusement: ‘In [Central and Eastern European] countries there is noticeably little enthusiasm for the transfer of the recently won rights of sovereignty to European level.’41 The reasons for this apparent lack of enthusiasm were not difficult to comprehend: countries with a proud national history, only just emerging from several decades of oppressive domination by the Soviet Union, at best suffering all the burdens and disadvantages of ‘limited sovereignty’, and at worst being subjected to forceful integration into Soviet statehood (as was the case of the Baltic states), were about to embark on the surrender of their sovereignty to a foreign body again—admittedly benign, but foreign nevertheless.

For the sake of brevity, I will refer to this idea as the ‘sovereignty conundrum’. It had been formulated in many variants both within and outside Central and Eastern Europe, and not necessarily by those who were hostile to the enlargement of the EU. Rather, the sovereignty conundrum has a value-neutral character: it merely draws attention to a certain historical irony, or a major problem to be solved. It points to a possible explanation for the relatively low support for accession found in at least some CEE countries, and for the popularity of certain anti-EU political movements within those countries which used the slogan: ‘We have just got rid of Moscow’s domination and are about to subject ourselves to domination by Brussels.’ One does not have to buy all the demagogic contents of these slogans in order to appreciate why they might strike a sympathetic cord with a large segment of public opinion in CEE societies. And if this is the case, this may have both weakened the legitimacy of the new states’ accession (by depriving the pro-European elites in those countries of strong social support) and, in the post-accession period, weakened those states’ commitment to supranationalism, the Union method, the proposed Constitutional Treaty, and the bona fide observance of the EU’s rules.

4.1 The sovereignty conundrum and nationalism

Like every piece of conventional wisdom, the sovereignty conundrum has a rational core to it, but also builds upon a degree of misperception of the attitudes dominant in CEE countries. Let me begin with the rational core. The desire of citizens in post-Communist Central and Eastern Europe to embrace a strong sovereignty principle is deeper than simply the natural reaction to decades of cruel denial or the drastic limitation of sovereignty. After the fall of Communism, national identity (often perceived in an ethnic rather than a civic fashion) has generally been the most powerful social factor (other than those identified with the social foundations of the ancién regime

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