Negotiation Process

NEGOTIATION PROCESS

STAGES OF THE NEGOTIATION PROCESS

 FOREWORD
 1. SCREENING PROCESS
 2. PREPARATION OF NEGOTIATING POSITIONS
 3. PRESENTATION OF POSITION DOCUMENTS TO THE EU PRESIDENCY
 4. OPENING OF NEGOTIATIONS
 5. CLOSING OF NEGOTIATIONS
 6. RATIFICATION OF THE ACCESSION TREATY
 
FOREWORD
 
The European Union accession negotiations process stands out with its complexity. Good knowledge of its dynamics and functioning is vital for the successful completion of the negotiations.
 
The first step of the process consists of the adoption of a negotiating framework for candidate countries. With regards to the last enlargement process, a single framework defined the key principles pertaining to the negotiations for all the countries involved. This document also provided an exact definition of EU accession, which was referred to as the adoption by the candidate country of the acquis communautaire, i.e. all rights and obligations regarding the Union, as well as its administrative structure. Emphasis has been put on the need for candidate countries to ensure that the acquis was duly implemented at the time of accession, and on the necessary institutional reform process, which must inevitably take place in order to implement the relevant rules. Even though negotiating frameworks differed from one candidate country to another, since these are prepared so as to take the country´s specificities into account, there still are numerous similarities between the documents.
 
The negotiating framework drafted for Turkey was announced on 29 June 2005. The document foresees that the acquis communautaire subject to the negotiations ought to be examined within 35 different chapters.
 
The acquis communautaire, which constitutes the common ground of all rights and obligations linking the Member States to the European Union and which evolves and changes constantly, is comprised of: the Treaty Establishing the European Community (Treaty of Rome) and all subsequent Treaties amending its dispositions (Single European Act, Treaties of Maastricht, Amsterdam, Nice and Lisbon), the case-law of the European Court of Justice, all declarations and statements adopted by the Union, common positions and actions enacted within the framework of the Common Foreign and Security Policy, international agreements ratified by the Community, as well as agreements enacted between the Member States in relation with their activities and all other documents.
 
In accordance with the principles determined by the negotiating framework enacted for the 5th enlargement, all special legislative acts enacted within the realms of Association Agreements that are not in conformity with the acquis, cannot in any way constitute precedent during the negotiation process. Furthermore, it has been specifically mentioned that, due to the importance of the European integration process, enlargements may not hamper with such integration.
 
It has also been specified that certain time-framed and limited-scoped transition periods may be established. Such periods may be granted to ensure that technical convergence is duly achieved in Member States. However, these are conditional upon the drafting of a detailed plan setting out all the different stages that would eventually lead to the full implementation of the acquis. Emphasis has also been put to this effect on the fact that transition periods should not change the Union´s rules and policies at any time. No execution that may affect the functioning of the Union can be accepted, even though proper attention ought to be given to both sides’ (i.e. the EU and the candidate country) interests.
 
In accordance with the diversification principle, negotiations ought to be conducted on the basis of identical principles for each and every country, but their implementation ought to vary according to each candidate country´s performance. The process may therefore not necessarily develop in the same way for all candidates. The performance of the candidate country is assessed on the basis of the following criteria: the so-called Copenhagen and Madrid criteria, high levels of nuclear and environmental protection, peaceful settlement of border disputes in accordance with the United Nations Charter, and the priorities established under the Association Agreements and Accession Partnership documents.
 
The candidate country shall embrace policies and positions put forward by the Community when pursuing its own policies with regards to third countries or before international organisations such as the WTO.
 
The negotiating frameworks also establish the procedure in accordance to which the EU was to conduct the negotiations process, as well as the relevant institutional arrangements. Negotiations thus need to be pursued through a unique procedure, according to which the EU´s common positions are to be adopted unanimously at the Council. The Commission is required to establish draft common positions in all fields of negotiations, except for those related to the Common Foreign and Security Policy, and the Justice and Home Affairs chapters, where the drafts ought to be prepared by the Council in close cooperation with the Commission and the Member States.
 
Following to the decision to open negotiations, the screening process is launched through a decision of the Intergovernmental Conference, which also decides to effectively open negotiations on chapters where the compliance level is considered satisfactory at the end of the screening process. Throughout the procedure, negotiating positions are exchanged between the Union and the candidate country´s relevant authorities. The decision to provisionally close chapters also falls within the competence of the Intergovernmental Conference, deciding unanimously for each chapter, until all of them are closed. The end of the negotiation process is followed by the approval of the Accession Agreement by the European Parliament and the Council, as well as the candidate countries and the EU Member States. Membership becomes final when all countries approve the aforementioned Agreement in accordance with the relevant provisions of national law.
 
1. SCREENING PROCESS
 
The screening process that is initiated through a decision of the Intergovernmental Conference, constitutes the first stage of the accession negotiations, and consists of a detailed analytical study of the EU acquis, as well as the compliance level of relevant national normative instruments with regards to such acquis.
 
The process also aims at facilitating the EU acquis´ future transposition within the national legal order, as well as determining the potential problems, which may arise during the course of negotiations together. Efficient screening requires that all fields where further transposition is required are duly determined. The process also needs to lead to the identification of the legislative instruments that are partly or fully incompatible with the acquis, and which thus need to be amended or abrogated before accession. Screening also includes an analysis of the candidate country´s institutional structure, and thus provides guidance as to its re-shaping or strengthening in order to ensure efficient and uniform implementation of the acquis. The structure goes through a thorough assessment of its efficiency to duly implement legislative instruments, especially if transposition is considered to exist at a sufficient level.
 
The screening process was conducted through two different procedures during the 5th enlargement wave, namely multilateral and bilateral screenings. The former refers to informative meeting convened by European officials for authorities of all candidate countries in order to give insight about the acquis´ content and its implementation; whereas the latter refers to the determination of national compliance levels through meetings attended by specialists representing the EU and each candidate country. It needs to be underlined that the entire acquis is not examined during this particular process, but its assessment is rather limited to basic regulations contained in each chapter (approximately 25% of the acquis).
 
Since the EU acquis is constantly evolving due to its nature, new screening processes may become necessary with regards to freshly enacted regulations. Indeed, the legislative content that needs to be transposed and implemented by the candidates may go through subsequent changes over time.
 
Following the completion of all relevant screening processes, evaluations are drafted by the European Commission through the so-called “Screening Reports”, which are then handed down to the Council of Ministers of the EU. The Reports constitute the basis upon which negotiations are formally opened on the particular chapter or not.
 
When comparing the dates pertaining to the start and end of the screening processes and those of the opening of negotiations with regards to the countries that took part in the 5th enlargement wave, it appears that negotiations were opened and provisionally closed for certain chapters even before the screenings were finalised for all acquis chapters, when harmonisation was considered to be complete. Differences are evident with regards to the length of the process from one country to another: screenings were initiated on April 1998 both for Hungary and Slovakia, closing on July 1999 for the former, and February 2000 for the latter, even later than Malta, country for which the screening lasted from May 1999 to January 2000.
 
2. PREPARATION OF NEGOTIATING POSITIONS
 
Negotiating positions consist of documents whereby the candidate countries expressly state their opinions on compliance with the acquis in a particular chapter, and include descriptions of the foreseen activities to ensure compliance and implementation, either through legislative measures or by means of structural processes. These positions are particularly important for candidate countries, since they constitute the basis upon which the Accession Agreement is drafted at the end of the negotiations.
 
No format has been established for such positions. In practice, some similarities do exist between negotiating positions prepared by candidates, but they do differ in scope and also with regards to the methods countries favour in the way to accession. However, the countries ought to comply with the terms surrounding the negotiation process itself at all times, including during the drafting of positions. Negotiating positions may thus not pre-emptively determine the subjects that shall be treated under other chapters.
 
Each negotiating position´s structure varies according to the relevant chapter´s content and its volume. However, they all need to include an introductory section, as well as a segment focusing on the basis upon which each argument is founded. The introduction generally focuses on the state of compliance at the time of drafting, the foreseen reform mechanisms and the country´s compliance agenda, whereas the subsequent sections include further details these issues according to the subject they cover.
 
Negotiating positions also are of tremendous importance with regards to transition periods and derogations, since the quality of the argumentation they contain will determine whether candidates are granted such rights or not.
 
Specific rules pertain to the establishment of transition periods can be granted when a candidate country asserts that it will not be able to comply with the acquis on the envisaged date of accession. These periods need to be limited in time and scope, and may neither be hampered with the Union´s rules, policies or ordinary activities, nor hinder competition at significant levels. Due justifications need to be put forward in order to obtain transition periods. These grounds may pertain to the technical difficulties related to compliance (such as the need to revoke international agreements), or the need to abate the negative impacts of compliance, the necessity for candidate countries to maintain their current elevated standards, the protection of their fundamental national interests, the need to ensure smooth completion of social and economic transition, or important financial problems.
 
Permanent or temporary derogations may also be granted under certain conditions. Contrary to transition periods, candidate countries to which temporary derogations have been conceded may refrain from applying a section of the acquis for a certain period of time, without having to present compliance agendas. Permanent derogations, where no time limits ought to be set, have been granted in the past in very unusual circumstances, where proof was brought before authorities that the derogation would not affect the Internal Market and could create serious problems for the candidate if not granted. Malta is the most recent country to have been granted a permanent derogation.
 
The Union however usually prefers not to have recourse to techniques such as transition periods and derogations, and rather focuses on the development of specific creative solutions tailored to meet the candidate countries´ needs. That is why countries that wish to be granted transition periods or derogations need to build on solid arguments to support their cause, making particular use of the “Annexes” of the negotiating positions, where specific data can be presented to the European authorities. The strength of the data depends on the rightful conduct of regulatory impact assessments at the national level.
 
Regulatory impact assessments provide for efficient ex-ante evaluations of all economic, financial, legal, political and social costs related to the compliance with the acquis. The determination of the potential consequences of compliance on candidates through qualitative and quantitative measures, prior to the actual accession, bears tremendous importance with regards to claims for transition periods or derogations, but also minimises the risk to come across negative surprises during the actual negotiation process.
 
Impact assessments, which can be described as specific cost-benefit analyses of the acquis´ implementation, follow four main objectives: 
  • Determination of the most cost-effective way to implement the acquis, including the institutional reforms necessary to fulfil the goals pursued by the relevant regulations;
  • Determination of the cost of the acquis´ implementation, which is to be taken into account within the medium-term budget planning;
  • Information of the business world and other relevant sectors on the changes and costs incurred following to the enactment and implementation of the acquis;
  • Proof that the candidate country has a precisely plan for gradually implementing the acquis. It has been concretely demonstrated that strong impact assessments lied behind and constituted the main impetus for the grant of transition periods to the “new Member States”.
A number of factors need to be duly taken into account when preparing the aforementioned assessments:
  • The candidate country´s available financial resources;
  • Distribution of the costs and benefits within the different segments of society;
  • Distribution of the costs and benefits within the different regions of the candidate country.
Regulatory impact assessment thus need to be prepared with the greatest consideration, and ought to become priorities for candidate countries. It is also of outmost importance that negotiating positions are prepared within the framework of a wide-scoped cooperation and reciprocal information distribution between the candidates and the European Commission.
 
The EU also requires that all specialised institutions be integrated within the screening process. To this end, “working groups” have been established in all candidate countries. Even though their composition varies from one country to the other, they usually include independent specialists, such as academicians or technicians, as well as non-governmental organisations and representatives of public authorities. The draft negotiating positions prepared by these working groups ought to be presented to the delegation established to conduct the accession negotiations. When the document is duly accepted in accordance with the applicable national procedure of the candidate country (including or excluding any intervention from the Parliament), the finalised text of the positions is communicated to the Member States holding the EU Presidency and to the European Commission. Countries where the positions are submitted to Parliamentary approval have asserted that such procedure does not in any way restrain the scope of action during the negotiations by issuing “secret” information, but rather reinforces the process through the achievement of greater public participation.
 
The negotiating delegations are not only involved in discussions taking place with representatives of the European Commission and the Member States, but also act as consultative entities during the preparation of negotiating positions, especially with regards to the tactical and strategic elements of the process.
 
In addition to the negotiating positions presented by all candidate countries, the EU institutions may also require that “additional information” be given on particular subjects or even entire chapters. Such information is required when negotiations that have been provisionally closed are re-opened following to the adoption of significant legislative instruments at the European level. The negotiating positions may also be amended in different cases, for instance when candidate countries present new facts, or when requests for transition periods and derogations are abandoned.
 
In parallel to the transition periods and derogations, the EU may also establish certain protection measures and derogations of its own. The measures recently enacted with regards to the “Free Movement of Persons” for the last Member States are a good example of such practice.
 
3. PRESENTATION OF POSITION DOCUMENTS TO THE EU PRESIDENCY
 
The candidate country shall present its negotiating positions to the Member State holding the Presidency of the Union, which shall then communicate these documents to all Member States and the Commission. The European Commission´s Directorate General for Enlargement shall prepare a “draft common position” after examining the candidate country´s negotiating position together with the relevant sectoral Directorate General, replying to all the applicant´s requests.
 
The draft shall then be handed out to the Council, which has to discuss the text in an ad hoc Enlargement Working Group established to this end. Contributions shall be made by Member States (either at the Ambassadorial or the Ministerial level) in order to attain the final draft position, which is then to be presented to the General Affairs and Foreign Relations Council. This important stage involves wide-scoped negotiations between Member States, and might thus extend in time when difficulties to reach an agreement between those States prove hard to tackle in certain subjects.
 
The common position is then submitted to the vote of the General Affairs and Foreign Relations Council. If the Council approves the text unanimously, the draft shall become the official ”EU common position”, which will be communicated to the candidate country.
 
4. OPENING OF NEGOTIATIONS
 
Compared to other international negotiation processes, the EU accession negotiations do not provide for partial implementation of the acquis, but only confers margins of appreciation and deliberation with regards to the establishment of compliance agendas.
Such agendas are prepared having regard to the difficulties inherent to the subject- matter at hand, and differ from one chapter to another. It is however acknowledged that compliance follows three main stages:
  • Transposition of the legislation: adoption of regulatory, and often binding legal and administrative rules without limiting the transposition to a mere translation of existing EU legislation, but rather the consideration of the national legislation as a whole, amending all existing national instruments in order to provide for the efficient implementation of the acquis,
  • Implementation of the legislation: establishment of the infrastructure and enactment of all regulations necessary to ensure that all rights, obligations and responsibilities recognised in the acquis are respected,
  • Enforcement: all measures to be adopted by competent authorities having regards to the implementation of the relevant legislation (such as monitoring, mandatory redress and amendment measures).
Efficient implementation and enforcement of the acquis requires that administrative structures that perfectly master the content of the relevant regulations are established. The transposition shall unmistakably be completed at the time of accession to the EU, and be fully implemented afterwards, unless transition periods have been granted to that particular end.
 
Other instruments that are particularly important in the negotiation process consist of the Accession Partnership Agreement drafted by the European Commission, the candidate country´s National Program (whereby the country sets forward its commitments and calendar for compliance), and the Progress Reports regularly prepared by the Commission, and that determine the strengths and weaknesses of the candidate country with regards to transposition, implementation and enforcement of the acquis.
 
Negotiations with candidate countries are pursued at two different levels. Whereas the main positions, strategies and political issues are put forward and discussed before the Intergovernmental Conference, actual negotiations on technical issues regarding transposition and implementation are carried out between the EU Permanent Representatives Committee (COREPER) and the negotiating delegations of the candidate country, including the chief negotiator.
 
Following to the assessment and comparison of negotiating positions, as well as the consideration of any likelihood to allow for transition periods or derogations, negotiations are usually first opened in relatively “easy” chapters. These chapters are commonly identified as those subject-areas where European legislation remains scarce or within which only fundamental principles and minimum compliance standards are established, and leave the initiative to enact all necessary measures the Member States. Composed of programs and enforcement-oriented chapters, subject matters such as the Enterprise and Industrial Policy, Education and Culture, or Science and Research are thus considered to be “easy” chapters. Negotiations may also be opened more easily with regards to other chapters where the level of acquis compliance is high in the national legislation, and where enforcement is considered as being unproblematic.
 
Even though negotiations on the following chapters are not suspected to be opened quickly, they are still expected to end relatively quickly: Economic and Monetary Union, Statistics, Consumer and Health Protection, Common Foreign, Security and Defence Policy, Foreign Relations, and Financial Control.
 
Chapters where candidate countries face a number of challenges, which have often been remedied through addendums to the applicable legislative instruments, consist of: Fisheries, Information Society and Media (former Telecommunications and Information Technologies, as well as Audio-visual Policies), Regional Policy and Coordination of Structural Instruments, Customs Union, and Company Law.
 
Chapters in regards to which negotiations take more time, often create conflicts between the relevant parties, and are usually resolved through the enactment of transition periods or protective measures, consist of: Free Movement of Goods, Free Movement of Services, Free Movement of Capital, Free Movement of Persons, Competition, Transport Policy, Energy, Justice, Freedom and Security, Social Policy and Employment.
 
The two chapters that are the hardest to agree upon during the negotiation process due to the numerous difficulties encountered in complying with the wide-ranged regulations are Environment and Agriculture. Considering the fact that more than half of the European acquis is related to agriculture and that almost 50 % of the Union´s budget is allocated to that particular sector, problems arising during the negotiations with candidate countries regarding this colossal policy area are comprehensible. In parallel with the Taxation chapter, these two subjects have constituted the chapters for which the most far-reaching transition periods and the few existing derogations have been established.
 
When assessing the past negotiations processes with specific regard to transition periods, observers notice that out of the 31 chapters negotiated with the 10 newest Member States, such periods have been granted for 13 different chapters. These mainly relate to the “Free Movement of Goods, Persons, Services and Capital”, which lies at the foundation of the European economic integration and form the Internal Market, along with other difficult chapters in the like of “Competition, Agriculture, Transport, Taxation, Social Policy, Energy, Information Society, Environment and the Customs Union”. Additionally, amendments have been made to the Union´s secondary legislation while special regulations were also being enacted in accordance with the candidates´ requests. The possibility of adopting protective measures has also been recognised officially during the last enlargement.
 
5. CLOSING OF NEGOTIATIONS
 
Negotiations may be provisionally closed in chapters where concrete plans have been established as to the transposition and implementation of the relevant acquis, as well as to the state of compliance in the subject-matter. This provisional closure decision shall unanimously be adopted by the Intergovernmental Conference, and shall not in any way preclude the Parties´ right to re-open negotiations on that particular chapter. This practice derives from the principle according to which “nothing shall be agreed upon until everything is agreed upon”, mainly established due to the evolving nature of the acquis, as well as a means of protection against candidates that do not fulfil their commitments. However, the re-opening of chapters that had been provisionally closed remains exceptional, and is usually only foreseen in cases where serious discrepancies exist between the candidate´s commitments and the actual progress of the country.
 
The closure of negotiations occurs frequently following to the positive recommendation of the European Commission´s Progress Reports and in accordance with roadmaps enacted for that particular purpose.
 
6. RATIFICATION OF ACCESSION TREATY
 
Once negotiations are concluded on all chapters, the results of the negotiations are incorporated in a draft Accession Treaty, which states all conditions pertaining to the accession of the candidate country to the EU. Work on the draft usually starts as early as the start of the negotiation process itself, throughout the process of which an ad hoc working group composed of representatives of Member States, the candidate country, the Council and the European Commission discuss its content.
 
The draft instrument is subsequently submitted to the assent of the European Parliament requiring the simple majority and also the Council of the EU, requiring the unanimity of votes. The Treaty is then signed by all Member States and by the acceding country, which shall all ratify the instrument in accordance with their national constitutional requirements.
 
When the ratification process is concluded within each national order, whether by way of parliamentary assent or referendum, the Treaty shall take full effect and the candidate a Member State of the European Union in its own right. The process may last longer than expected, as witnessed for the 5th enlargement wave, whereby the Treaty was signed by all 25 States on 16 April 2003 but came into force on 1 May 2004.

 



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