Growing Pains: EU Enlargement Must Not Endanger the Rule of Law and Capacity to Act

The EU has revived its enlargement policy to bring stability to the neighbourhood and curb autocracies such as Russia and China. What  must be done to ensure that this process doesn’t come at the expense of the rule of law and effective decision-making?

Russia‘s attack on Ukraine has changed the political geography of Europe. NATO has grown to include Finland and Sweden, strengthening the transatlantic defence alliance and extending Russia‘s land border with NATO by over 1,300 kilometres. The European Union has revived its enlargement policy in response to the urgent desire of war-torn Ukraine and the Republic of Moldova to join – also and above all to stabilise the continent. Although there’s intense pressure now to let more countries in soon, the EU must first strengthen itself internally.

Some candidate countries have been waiting a very long time. The process to integrate five Western Balkan states came to a grinding halt about a decade ago. EU member states such as France and the Netherlands weren’t keen to allow more countries into the Union. Some states hadn’t properly digested the eastward enlargement of 2004 politically and hadn’t convincingly conveyed the significance of this historic step to their populations.

The relative loss of power that the leap from 15 to 25 EU members entailed and the growing mistrust towards candidate governments that didn’t comply with European legal and democratic standards led to increased scepticism about enlargement. In addition, apart from German businesses, not many companies were harnessing the economic potential of the enlarged single market.

In 2013, after some EU governments blocked the next stage of the enlargement process for Albania and North Macedonia even though the European Commission had acknowledged that those countries had made important progress, the credibility of the accession process was in tatters from the candidate countries‘ point of view. Subsequently, some of them questioned the objectivity of the criteria, and the more they felt like unwelcome intruders, the more difficult it became for their governments to push through difficult reforms at home.

Two years after then Commission President Jean-Claude Juncker had called for an enlargement pause in 2018, the Commission sought to restore the credibility of enlargement policy by launching a reform of the accession process. This was initiated in part by France, which has taken a much greater interest in Central, Eastern, and South Eastern Europe since President Emmanuel Macron took office. However, the initiative did not bring significant progress. Thus, the EU missed the historic opportunity a decade ago to close the gaping hole on the map south of Croatia and Hungary, west of Romania and Bulgaria, and north of Greece with a well-prepared, courageous Balkan accession.

The Enlargement Paradox

Putin’s full-scale attack on Ukraine on February 24, 2022 triggered a turnaround. EU enlargement is now seen as the most important geopolitical instrument for stabilising the EU’s immediate neighbourhood and containing the growing influence of authoritarian or totalitarian powers such as Russia and China.

Their influence is also impacting the accession debate itself. This applies in particular to candidates whose geopolitical positioning is ambiguous. Take Serbia, for example, the largest candidate country in the Western Balkans: President Aleksandar Vučić cultivates his relations with Moscow and Beijing, doesn’t support sanctions against Russia, but is supplying weapons to Kyiv.

It is not just Serbia’s conflict with Kosovo that is continuing to smoulder: Inside the country, new repression has supplanted previous liberalisation efforts. According to current democracy indices, there has not only been a lack of progress in terms of democracy and the rule of law: Over the past decade there has been a downright dismantling of liberal democratic achievements.

Controlled media, electoral fraud, political influence exerted on courts and universities – there’s a long list of setbacks. Meanwhile, Ukraine and the Republic of Moldova have cleared the first hurdles of the accession process at a rapid pace and started negotiations. Both are proceeding so resolutely in their preparations that some governments in the Western Balkans fear they will be overtaken. Georgia has now also been granted candidate status.

It is highly unlikely that the three states will join the EU in an accelerated process. Most EU governments and the Commission itself are rightly insisting that the candidates completely comply with the accession criteria despite – or perhaps precisely because of – the geopolitical pressures.

Meanwhile it’s interesting to see who is calling for the rapid accession of all candidates to the EU: Hungarian Prime Minister Viktor Orbán, for example, who is at loggerheads with the EU over the rule of law in his own country. Orbán sees the chance that the EU mechanisms could be undermined if he had more EU members with similar attitudes on his side. However, this would weaken the EU and jeopardise the single market.

That places the EU in a paradoxical situation in 2024: Enlargement appears to be the best way to bring stability to the EU’s neighbourhood. However, this very enlargement threatens to destabilise the Union. The way out of this quandary is politically challenging: Enlargement and reform of the EU must go hand in hand, however difficult that may be. Precisely because the pressure is so great, enlargement of the European Union only makes sense if it makes the Union stronger.

Insisting on the Rule of Law

So, longstanding questions are being asked anew: How can the EU remain capable of making decisions when it has even more members and even more different interests and ideas clashing? How can policies be reformed and financed, how can sufficient resources be provided and distributed if the standard of living between countries diverges even more than before? Ultimately, the question arises as to what degree of flexibility is appropriate in the enlargement process and within the EU.

The European heads of state and government have evidently recognised the EU’s internal weaknesses, and the European Council linked enlargement to internal reforms in its Granada Declaration at the beginning of October 2023. This is an important step forward for the EU, even if there are no further accessions for a prolonged period. After all, the Union needs to be better equipped to address current and future challenges, whether or not enlargement occurs, and decision-making capability as well as internal cohesion are particularly important in the face of growing geopolitical pressure.

The more the systemic competition between democracies and authoritarian regimes extends into the EU, the better protected the fundamental principles of the EU must be. The rule of law is a non-negotiable principle that is essential for the functioning of the European Union. Most EU policies, including those of the internal market, can only work if national courts are independent and the primacy of EU law is recognised. Corruption in national administrations should be incompatible with the disbursement of EU funds. The application of the rule of law is a fundamental requirement for EU member states and an essential accession criterion.

However, these criteria are difficult to enforce when two states simultaneously violate them, because they can shield each other from EU sanctions, as Poland and Hungary have done. The EU’s inability to defend these principles internally considerably damages its credibility internationally and in the eyes of candidate states.

Therefore, Article 7 of the EU Treaty, which allows for the suspension of states’ voting rights in the Council, should be strengthened. Its efficiency suffers above all from the necessary unanimity among the member states – minus the accused – and the fact that the Council is not obliged to take action even if the procedure has been initiated by the European Parliament or the Commission.

The high activation threshold could be lowered by introducing a four-fifths majority, and both the Council of the EU and the European Council should be obliged to adopt a position within six months. If violations persist and the Council fails to act, automatic sanctions should take effect after five years.

In addition, when negotiating the new financial framework, member states should sharpen budgetary conditionality and apply it to all special budgets. In other words: Money should only flow to EU states if all the fundamental principles of the treaty, in particular the rule of law, are observed. This approach has already been successfully applied to the NextGenEU special fund and has recently prompted Hungary and Poland’s governments to introduce some initial reforms to restore the rule of law.

Limiting Unanimity

A second important issue is the capacity to take decisions. Political polarisation, divergent interests, and the tactical use of vetoes are already making this difficult. For example, Hungary blocked new EU financial aid for Ukraine until January 2024 and repeatedly obstructed the extension of sanctions against Russia. Austria initially held up the 12th EU sanctions package against Russia in December 2023. The disagreement among member states over the demand for ceasefires or humanitarian corridors for Gaza made it difficult for the EU to adopt a position in October 2023.

Although the Council usually votes by qualified majority, unanimity still applies in sensitive areas such as enlargement or foreign and defence policy. In order to curb blackmail through tactical vetoes and to foster compromise, majority decisions should be extended to all areas. With the exception of the Common Foreign and Security Policy, the European Parliament should have full co-decision powers. Only treaty amendments or the admission of new members should continue to require unanimity, but not the opening of new negotiation chapters as part of the accession process.

The so-called passerelle or bridge clause enables more majority decision-making without treaty change. Nevertheless, unanimity is still required for this decision, and therefore it is important to take member states’ concerns about sovereignty seriously. In exceptional cases, an EU member state could ensure that a decision taken by qualified majority that jeopardises its national interests is referred to the European Council, which decides unanimously. And to prevent the larger member states from easily organising blocking minorities, a different weighting of voting rights could be considered.

The current system of 55 percent of the member states representing 65 percent of the population could be converted to one in which 60 percent of the member states represent 60 percent of the population. For decisions of high national interest, a “super-majority” such as “unanimity minus 1” could be introduced. In addition, EU member states should be given the opportunity to withdraw from policy areas in which majority decisions apply.

Caravan of the Willing

There are other possible instruments that could be used to improve the EU’s capacity to act. Pioneer groups, aiming to overcome blockades, should do so by deciding with a majority vote and being able to exclude blockers from the group. However, it is imperative that all such projects are in line with the EU’s fundamental principles and values, the acquis communautaire, and the institutions.

Differentiation cannot be used to resolve disagreements over the primacy of Community law or questions of the rule of law. If a state does not wish to respect the principles and values enshrined in Article 2 of the EU Treaty, it should not be a member of the EU, and should instead be linked via a looser partnership. France and Germany have recognised that the existing deficiencies could cost Europe dearly after the next round of enlargement at the very latest and have made internal reforms a condition for further enlargement. The European Council included this demand in the Granada Declaration last October.

The Belgian EU Council Presidency has a crucial task because it is due to present a roadmap for reform in the first half of 2024. It is similarly important that the moderate parties state the situation plainly in the European Parliament election campaign: The European Union and its neighbours face major security risks, the economic situation is uncertain, great efforts must continue to be devoted to the green and the digital transformations, and the internal cohesion of the community is crumbling. Reacting to this with fatalism and nationalism would be the wrong response. The task now is to develop a European model for the future for more countries than the current EU member states. Despite all the problems, this can be a success story, because the market and the intellectual, social, and financial resources on the continent remain huge.

The replacement of the PiS government in Poland by a pro-European government under Donald Tusk removes an important obstacle on the path to reform and brings an important Eastern European voice to the European negotiating table. Ultimately, what is needed is a comprehensive package in which each member state sees benefits – a package that it can sell domestically as a success.

If this proves unfeasible, greater flexibility is required. Since exclusion from the EU, even in cases where a government violates fundamental principles, is not provided for under European law, a different approach must be taken when such a conflict arises. There are still some unexplored possibilities for more flexible cooperation on the basis of the existing treaty, even in budgetary matters.

Given the external pressure weighing on Europe, those states that are geopolitically in the same camp and politically capable of defining common interests and organising their implementation should not allow themselves to be held back by other states. If those states that do not want to adhere to the EU’s fundamental principles and see no point in the EU becoming stronger in the provision of public goods want to stand by the wayside, the caravan of the willing should move on.

This text takes up some of the reform proposals put forward by an independent Franco-German group of experts commissioned by the European affairs ministers of both governments to make the EU ready for enlargement by 2030. The author was a member and co-rapporteur of the group.

Translated from German by David Crossland.

About the author

Prof. Dr. Daniela Schwarzer is a member of the  executive board of the Bertelsmann Stiftung. Her book “Krisenzeit. Sicherheit. Wirtschaft. Zusammenhalt” (“Time of Crisis. Security. Economy. Cohesion”) was published by Piper Verlag in September 2023.