constitutional reforms for european union accession

8/12/2019 Constitutional Reforms for European Union Accession

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C ONSTITUTIONAL R EFORMS FORACCEDING TO THE E UROPEAN UNION :

C OMPARATIVE STATE P RACTICE

Legal Memorandum

November 2012


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Const. Reforms for EU Accession, November 2012

C ONSTITUTIONAL R EFORMS FOR ACCEDING TO THE E UROPEAN UNION : C OMPARATIVE STATE P RACTICE

Executive Summary

The purpose of this memorandum is to identify and examine commonconstitutional reforms states have adopted when acceding to the European Union(EU, Union, or Community). A comparative analysis into the state practice ofSlovenia, the Czech Republic, Bulgaria, Croatia, and Serbia provides usefulguidance into the accession process for candidates considering EU membership.

To become a member of the European Union (EU or Union), a state isrequired to satisfy membership criteria, known as the Copenhagen Criteria.These criteria obligate states to achieve: (1) stability of institutions guaranteeing

democracy, the rule of law, human rights, and respect for, and protection of,minorities; (2) the existence of a functioning market economy as well as thecapacity to cope with competitive pressure and market forces within the EU; and(3) the ability to take on the obligations of membership including adherence to theaims of political, economic, and monetary union. Moreover, the Madrid Summitin 1995 established an addition condition that states expand their administrativeinfrastructure to ensure effective implementation of the Criteria.

As a result of the requirements imposed by the Copenhagen Criteria,accession to the EU is generally a complex process that requires a candidate stateto harmonize its legislation with the standards of the legal system of the EU,known as the acquis communautaire (acquis ). While the European Commissiongenerally looks at the overall legal and administrative infrastructure of the state inassessing its compliance with the acquis, such harmonization typically requires anumber of institutional changes, including certain constitutional amendments.Common constitutional reforms include the delegation of some measure ofsovereignty to the European Union, recognition of the primacy of EU law, as wellas additional reforms aimed at aligning domestic state law with the overallobjectives of the EU. These measures include the expansion of voting rights to

non-citizens of the Member States, reinforcement of the independence of the judiciary, economic and monetary union with the rest of the Community, and the provision of extradition of a states citizens to other Member States.

In most instances, states adopted constitutional reforms only to the extentthat existing constitutional provisions conflicted with Community law. Forinstance, many states had to change constitutional provisions prohibiting the


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extradition of their citizens in order to comply with the European Arrest Warrantframework, allowing for extradition of a states citizens to other Member States.Similarly, many states had to reform their constitutions due to provisions limiting

property ownership over land for foreigners only to inheritance. Such provisionswere amended to permit land ownership for foreigners in accordance with EU law.States also adopted constitutional amendments to provide for explicit mention ofthe states relationship with the European Union. For instance, some statesadopted amendments to include language allowing the state government todelegate some of its sovereignty to international institutions, such as the EuropeanUnion, based on a treaty or referendum adopted by the state.

In instances where the state did not have a conflicting constitutional provision, or a particular area of EU law was not mentioned in the statesconstitution, the European Commission would simply urge the acceding state to

adopt lower-level measures or strategic national plans to achieve the samemeasure. For instance, many states that were deemed to have functional marketeconomies in line with the Copenhagen Criteria were still encouraged to eliminatetrade barriers or increase anti-corruption efforts, but not necessarily throughconstitutional reform. In addition, although some states constitutions continued tohave seemingly contentious constitutional provisions, such states were nonethelessallowed to accede because the Commission concluded they had the administrativeinfrastructure necessary to sustain political and economic stability in accordancewith the acquis .


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T ABLE OF C ONTENTS

Statement of Purpose 1

Introduction 1

The Copenhagen Criteria 2 Political Criteria 3 Economic Criteria 3 Acceptance of Community Acquis Communautaire 4

Common Constitutional Reforms for EU Accession 6 Delegation of Sovereignty to the European Union 6 Primacy of European Community Law 7

Economic and Monetary Union 10 Independence of the Judiciary 11 European Citizenship and Voting Rights 11 Extradition of Nationals 12

Comparative State Practice 13 Slovenia 13

Political Criteria 14 Economic Criteria 14 Adoption of the Acquis 15

Czech Republic 15 Political Criteria 16 Economic Criteria 17 Adoption of Acquis 17

Bulgaria 18 Political Criteria 18 Economic Criteria 20 Adoption of Acquis 21

Croatia 22

Political Criteria 22 Economic Criteria 23 Adoption of the Acquis 24

Serbia 25 Political Criteria 25 Economic Criteria 27 Adoption of the Acquis 27


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Conclusion 27


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C ONSTITUTIONAL R EFORMS FOR ACCEDING TO THE E UROPEAN UNION : C OMPARATIVE STATE P RACTICE

Statement of Purpose

The purpose of this memorandum is to identify and examine commonconstitutional reforms states have adopted when acceding to the European Union(EU, Union, or Community). A comparative analysis into the state practice ofSlovenia, the Czech Republic, Bulgaria, Croatia, and Serbia provides usefulguidance into the accession process for candidates considering EU membership.

Introduction

After the fall of the Soviet Bloc in the early 1990s, the EU began to receive

letters of application for membership from Central and Eastern European (CEE)states. 1 The European Council (Council) agreed upon the conditions and terms forenlargement of membership at the Copenhagen Summit in 1993. 2 The Council iscomprised of the heads of government of the Member States along with thePresident of the European Commission and the President of the European Council,and is responsible for defining the political direction and priorities of the Union. 3 The Council decided that any of the CEE states could accede as soon as that statewas able to assume the obligations of membership by satisfying the economic and

political conditions required. 4 These conditions, known as the CopenhagenCriteria, include the establishment of stable political institutions, a functioningmarket economy, and a willingness to accept the longer-term political andeconomic objectives of the EU. 5 The Copenhagen Criteria was affirmed in 1995 atthe Madrid Summit, where a condition to develop and strengthen theadministrative and structural institutions necessary to implement and harmonizedomestic law with EU law was added. 6

1 Tanja Marktler, The Power of the Copenhagen Criteria, 2 C ROATIAN YEARBOOK OF EUROPEAN LAW AND POLICY

243, 245 (2006). See also L. Massai, the EU Enlargement , THE K YOTO PROTOCOL IN THE EU, p. 8 (2011).2 European Council in Copenhagen, Conclusions of the Presidency , 12 (Jun. 21-22, 1993), available athttp://ec.europa.eu/bulgaria/documents/abc/72921_en.pdf; see also Bart M.J. Szewczyk, Enlargement and

Legitimacy of the European Union, 30 P OLISH YEARBOOK OF I NTERNATIONAL LAW 131, 143 (2010).3 European Council, the Institution (last visited Nov. 27, 2012), available at http://www.european-council.europa.eu/the-institution.4 European Council in Copenhagen, Conclusions of the Presidency , 12 (Jun. 21-22, 1993).5 European Council in Copenhagen, Conclusions of the Presidency , 12 (Jun. 21-22, 1993).6 European Council in Madrid, Conclusions of the Presidency, sec. III(A) (Dec. 15-16, 1995), available athttp://www.europarl.europa.eu/summits/mad1_en.htm .


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As a result of the Copenhagen Criteria, the accession process generally begins with a screening stage in which the European Commission (Commission)examines how well the state is prepared to meet its obligations for membership. 7 In contrast to the Council, the Commission represents the interests of the EU as awhole. 8 It is comprised of twenty-seven Commissioners (one from each MemberState) and is responsible for proposing new legislation and making sure EU law iscorrectly applied by Member States. 9 The Commission decides whether it is opento direct negotiations or whether the candidate state is required to first meet a set ofopening benchmarks before negotiations may begin. 10 The negotiations stage iscomprised of structured meetings and dialogue between the candidate state and theEU Council to assess the political and economic conditions of the candidate state. 11 The negotiations stage also involves the adoption of established EU law, as well asthe implementation of any necessary judicial, administrative, and economicreforms to comply with it. 12 Because a states constitution is generally the supreme

law of the land, these reforms often have constitutional implications as well.

The Copenhagen Criteria

As mentioned above, the Copenhagen Criteria is the set of conditionsrequired for EU membership. In particular, candidate states are required toachieve: (1) stability of institutions guaranteeing democracy, the rule of law,human rights, and respect for, and protection of, minorities; (2) the existence of afunctioning market economy as well as the capacity to cope with competitive

pressure and market forces within the Union; and (3) the ability to take on theobligations of membership including adherence to the aims of political, economic,and monetary union. 13 States are also required to adapt their institutional structuresto create proper conditions for harmonious integration into the EU. 14 Thisrequirement ensures that acceding states not only adopt the legislativeinfrastructure, but are also prepared to properly apply and enforce the law. 15 By

7 European Commission, Steps Toward Joining (2012), available at http://ec.europa.eu/enlargement/policy/steps-towards-joining/index_en.htm.8 European Commission, European Commission at Work (2012), available athttp://ec.europa.eu/atwork/index_en.htm. 9 European Commission, European Commission at Work (2012). 10 European Commission, Steps Toward Joining (2012).11 European Commission, Steps Toward Joining (2012).12 European Commission, Steps Toward Joining (2012).13 European Commission, Accession Criteria (last visited Nov. 20, 2012), available at http://europa.eu/legislation_summaries/glossary/accession_criteria_copenhague_en.htm.14 European Council in Madrid, Conclusions of the Presidency, sec. III(A) (Dec. 15-16, 1995) .15 Paulina Rezler, The Copenhagen Criteria: Are They Helping or Hurting the European Union? , 14 T OUROI NTERNATIONAL LAW R EVIEW 390, 392-93 (2011).


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adding this requirement, the Council addressed its concern that candidate stateswould act to meet the requirements of accession, but fail to develop a mechanismfor further success within the EU. 16

Political Criteria

The first set of conditions is primarily political, with the aim of harmonizingthe applicant states domestic legal infrastructure with the principles of democracyand the rule of law. 17 The European Commission defines democracy in terms offree and fair elections, political pluralism (including recognition of the opposition),freedom of expression and freedom of religion, as well as independent judicial andconstitutional authorities. 18 The Commission also understands rule of law torefer to an independent judiciary with suitably qualified judges, and an effective,trained, and disciplined police force. 19 Rule of law also includes mechanisms to

address administrative decisions, access to courts and the right to a fair trial, andequality before the law. 20

The EU Council noted that [c]ompliance with the Copenhagen politicalcriteria is a prerequisite for the opening of any accession negotiations whereas[e]conomic criteria and the ability to fulfill the obligations arising frommembership have been and must be assessed in a forward-looking, dynamicway. 21 This means that the establishment of stable democratic institutions isinviolable, while fulfillment of the economic standards is flexible and may beassessed prospectively. 22

Economic Criteria

The second condition involves an assessment of whether the candidate statecan show the existence of a functioning market economy, as well as the capacity to

16 Paulina Rezler, The Copenhagen Criteria: Are They Helping or Hurting the European Union? , 14 T OUROI NTERNATIONAL LAW R EVIEW 390, 392-93 (2011).17 European Council in Copenhagen, Conclusions of the Presidency , 12 (Jun. 21-22, 1993).18

Marise Cremona, Accession to the European Union: Membership Conditionality and Accession Criteria, 25POLISH YEARBOOK OF I NTERNATIONAL LAW 219, 221 (2001).19 Marise Cremona, Accession to the European Union: Membership Conditionality and Accession Criteria, 25POLISH YEARBOOK OF I NTERNATIONAL LAW 219, 221 (2001).20 Marise Cremona, Accession to the European Union: Membership Conditionality and Accession Criteria, 25POLISH YEARBOOK OF I NTERNATIONAL LAW 219, 221 (2001).21 European Council in Luxembourg, Presidency Conclusions, para. 25 (Dec. 1997), available athttp://www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/en/ec/032a0008.htm.22 Bart M.J. Szewczyk, Enlargement and Legitimacy of the European Union, 30 P OLISH YEARBOOK OFI NTERNATIONAL LAW 131, 150 (2010).


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cope with the competitive nature of a market economy within the Union. 23 ForCentral and Eastern European states, this generally involves opening up domesticeconomies to market competition, both within the Union and externally, as part ofthe EUs trade policy. 24 The Commission also looks at whether macroeconomic

price stability has been achieved and the balance between demand and supplyallows for the free interaction of market forces. 25 Rule of law and a functioninglegal system are also assessed. 26 In particular, candidate states ought to haveefficient judicial procedures that provide for the enforcement of contracts and the

protection of property rights. 27

In assessing the candidate states competitiveness, the Commission is notonly concerned with strains on the economic policies of the potential new member,

but also with the global competitiveness of the EU as a whole. 28 The candidatestates economic policies have to be in harmony with the Unions existing policies

designed to boost employment and foster competition. 29 The Commission alsoexamines the candidate states broad economic policy and the extent to whichgovernment regulation influences competition in the market, such as stateassistance, subsidies, and antitrust laws. 30

Acceptance of Community Acquis Communautaire

The third Copenhagen criterion refers to the ability of the candidate state totake on the obligations of membership, including adherence to the aims of

political, economic, and monetary union. 31 The acquis communautaire (acquis ) isthe body of EU rules, political principles, and judicial decisions that a candidate

23 Marise Cremona, Accession to the European Union: Membership Conditionality and Accession Criteria, 25POLISH YEARBOOK OF I NTERNATIONAL LAW 219, 220 (2001).24 Marise Cremona, Accession to the European Union: Membership Conditionality and Accession Criteria, 25 POLISH YEARBOOK OF I NTERNATIONAL LAW 219, 224 (2001).25 Marise Cremona, Accession to the European Union: Membership Conditionality and Accession Criteria, 25 POLISH YEARBOOK OF I NTERNATIONAL LAW 219, 224 (2001).26 See European Commission, Enlargement Strategy and Main Challenges 2011-2012, 40 (Oct. 12, 2011), availableat http://ec.europa.eu/enlargement/pdf/key_documents/2011/package/strategy_paper_2011_en.pdf.27 Marise Cremona, Accession to the European Union: Membership Conditionality and Accession Criteria, 25

POLISH YEARBOOK OF I NTERNATIONAL LAW 219, 224 (2001); see also European Commission, Enlargement Strategyand Main Challenges 2011-2012, 41 (Oct. 12, 2011).28 Marise Cremona, Accession to the European Union: Membership Conditionality and Accession Criteria, 25 POLISH YEARBOOK OF I NTERNATIONAL LAW 219, 225 (2001).29 Marise Cremona, Accession to the European Union: Membership Conditionality and Accession Criteria, 25 POLISH YEARBOOK OF I NTERNATIONAL LAW 219, 224 (2001).30 Marise Cremona, Accession to the European Union: Membership Conditionality and Accession Criteria, 25 POLISH YEARBOOK OF I NTERNATIONAL LAW 219, 225 (2001).31 Marise Cremona, Accession to the European Union: Membership Conditionality and Accession Criteria, 25 POLISH YEARBOOK OF I NTERNATIONAL LAW 219, 224 (2001).


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state is required to accept. 32 It is divided into thirty-one different chapters,which form the bases for the accession negotiations between the Commission andthe candidate state. 33 These chapters include: the free movement of goods,services, persons, and capital; policies on agriculture, transportation, consumer

protection, and energy; and foreign, security, and defense policy, among manyothers. 34 The acquis includes not only the adoption of binding legislation adoptedunder the Treaty of the European Union (TEU), but also requires that statesharmonize domestic law and policy with the decisions of the European Court ofJustice and other non-binding measures adopted under the Union treaties. 35 Unlikethe other Copenhagen Criteria, acceptance of the acquis requires a forward-lookingcommitment by both the acceding state and the existing members of the Union. 36

The European Council reconfirmed the Copenhagen Criteria at the MadridSummit in December 1995 and added the condition that candidate states expand

administrative structures to effectively apply and enforce EU law. 37 This criterionaimed to ensure that new members would be able to maintain political stability andeconomic competitiveness through developed infrastructure and technicalknowledge. 38 Implementation of legislation was not enough; acceding statesneeded to establish the internal mechanisms necessary for enforcement, includingthe development of management systems and the provision of training for civilservants, public officials, judges, and financial controllers. 39 For instance, duringPolands accession process, the Commission found that, although the state had thelegal framework necessary to combat organized crime, it still had to strengthen itsMinistry of Internal Affairs and Ministry of Justice to provide the administrativeinfrastructure necessary to effectively enforce its laws. 40 This included training of

32 Heather Grabbe, European Union Conditionality and the Acquis Communautaire, 3 I NTERNATIONAL POLITICALSCIENCE R EVIEW , 249, 251-252 (2002); see also European Commission, Glossary: Acquis (July 9, 2012), availableat http://ec.europa.eu/enlargement/policy/glossary/terms/acquis_en.htm.33 European Commission, Glossary: Chapters of the Acquis (July 9, 2012).34 European Commission, Glossary: Chapters of the Acquis (July 9, 2012).35 Marise Cremona, Accession to the European Union: Membership Conditionality and Accession Criteria, 25 POLISH YEARBOOK OF I NTERNATIONAL LAW 219, 224 (2001).36 Antonija Petricusic and Ersin Erkan, Constitutional Challenges Ahead the EU Accession: Analysis of the Croatianand Turkish Constitutional Provisions that Require Harmonization with the Acquis Communautaire ,

I NTERNATIONAL STRATEGIC R ESEARCH ORGANISATION (USAK) 133 (2010) , available athttp://www.usak.org.tr/dosyalar/dergi/JxS6ff7qsmR9xCUOsnfbtde1POQaB7.pdf.37 Tanja Marktler, The Power of the Copenhagen Criteria, 2 Croatian Yearbook of European Law and Policy 243,245 (2006).38 Paulina Rezler, The Copenhagen Criteria: Are They Helping or Hurting the European Union? , 14 T OUROI NTERNATIONAL LAW R EVIEW 390, 392 (2011).39 Paulina Rezler, The Copenhagen Criteria: Are They Helping or Hurting the European Union? , 14 T OUROI NTERNATIONAL LAW R EVIEW 390, 394 (2011).40 Paulina Rezler, The Copenhagen Criteria: Are They Helping or Hurting the European Union? , 14 T OUROI NTERNATIONAL LAW R EVIEW 390, 395 (2011).


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scientific prosecutors, civil police, and forensic police in the treatment offingerprints and criminal analysis. 41

Common Constitutional Reforms for EU Accession

Because candidate states are required to harmonize domestic legislation withEU law, the accession process often requires a number of legislative andinstitutional changes. 42 The European Council, existing Member States, and theapplicant state sign accession agreements, which are draft documents that generally

bind candidates to follow a structured plan of social, economic, and legalreforms. 43 Because state constitutions are generally the supreme authority for anystate, candidates often have to reform their constitutions as part of the accession

process. 44 For instance, states generally have to amend provisions regardingsupremacy of the law, monetary policy, and voting rights, among others. 45

Delegation of Sovereignty to the European Union

Where international law or international institutions are not alreadymentioned in their constitutions, candidate states generally incorporate languagethat provides for the delegation of sovereignty. Some states amend theirconstitutions by explicitly delegating sovereignty to the European Union, whileothers simply refer to an international organization, association, or agreement.Both Poland and the Czech Republic refer only to international organizationsrather than the EU itself. For instance, Article 90 of Polands Constitution

provides that the Republic of Poland may, by virtue of international agreements,delegate to an international organization or international institution the competenceof organs of State authority in relation to certain matters. 46 Similarly, Article 10of the Czech Republics Constitution provides that promulgated internationalagreements, the ratification of which has been approved by the Parliament and

41 Paulina Rezler, The Copenhagen Criteria: Are They Helping or Hurting the European Union? , 14 T OUROI NTERNATIONAL LAW R EVIEW 390, 395 (2011).42 Antonija Petricusic and Ersin Erkan, Constitutional Challenges Ahead the EU Accession: Analysis of the Croatianand Turkish Constitutional Provisions that Require Harmonization with the Acquis Communautaire ,

I NTERNATIONAL STRATEGIC R ESEARCH ORGANISATION (USAK) 133 , 135 (2010).43 Antonija Petricusic and Ersin Erkan, Constitutional Challenges Ahead the EU Accession: Analysis of the Croatianand Turkish Constitutional Provisions that Require Harmonization with the Acquis Communautaire ,I NTERNATIONAL STRATEGIC R ESEARCH ORGANISATION (USAK) 133 , 134 (2010).44 Alfred E. Kellermann, Preparation of National Constitutions of Candidate Countries for Accession, FIFTHEUROPEAN CONFERENCE ORGANIZED BY THE EUROPEAN INSITUTTUE OF PUBLIC ADMINISTRATION , 2 (Mar. 4-5, 2002).45 Antonija Petricusic and Ersin Erkan, Constitutional Challenges Ahead the EU Accession: Analysis of the Croatianand Turkish Constitutional Provisions that Require Harmonization with the Acquis Communautaire ,I NTERNATIONAL STRATEGIC R ESEARCH ORGANISATION (USAK) 133 , 135 (2010).46 POLAND CONST ., art. 90 (1997), available at http://www.sejm.gov.pl/prawo/konst/angielski/kon1.htm.


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which are binding on the Czech Republic, shall constitute a part of the legal order;should an international agreement make provision contrary to a law, theinternational agreement shall be applied. 47

Alternatively, the Constitution of Slovakia explicitly transfers sovereignty tothe European Communities and European Union. Specifically, Article 7(2) ofSlovakias Constitution provides that the state may transfer the exercise of a partof its powers to the European Communities and the European Union. 48 Constitutional provisions such as these are necessary where state sovereignty andthe authority to set social, economic, and political policies are reserved solely forthe state government.

Primacy of European Community Law

Although the TEU does not expressly regulate the issue of primacy betweenCommunity and domestic law when a conflict of law arises, Article 4 does imposea duty on Member States to adopt any appropriate measure, whether general or

particular, to ensure fulfillment of the obligations arising out of this Treaty orresulting from the acts of the institutions of the Union. 49 Moreover, MemberStates are required to facilitate the achievement of the Unions tasks and refrainfrom any measure which could jeopardize the attainment of the Unionsobjectives. 50 The European Court of Justice also declared that Member States arerequired to abide by the principle that Community law takes primacy over thestates domestic laws. 51 As such, candidate states often reform their constitutionsto incorporate Community law into their legal systems, either by accepting the full

primacy of EU law or limiting acceptance on the condition that it does not conflictwith the states constitution. 52 Alternatively, some states rely on their relevantconstitutional courts to determine the primacy of European Community law.

The Czech Republic has accepted the full primacy of EU law in itsConstitution. In 2002, during the Czech Republics accession process, theConstitution was amended to include two relevant provisions establishing the

47 CZECH R EPUBLIC CONST ., art. 10 (1992), available at http://www.hrad.cz/en/czech-republic/constitution-of-the-

cr.shtml.48 SLOVAKIA CONST ., art. 7(2) (1992), available at http://www.concourt.sk/en/A_ustava/ustava_a.pdf.49 Consolidated Version on the Treaty on European Union , art. 4(3) (2010), available at http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2010:083:0013:0046:EN:PDF.50 Consolidated Version on the Treaty on European Union , art. 4(3) (2010).51 See, e.g., Judgment of the Court of Justice , Costa v. ENEL , Case 6/64 (15 July 1964).52 Lucia Serena Rossi, How Fundamental Are Fundamental Principles? Primacy and Fundamental Rights After

Lisbon, 27 Y EARBOOK OF EUROPEAN LAW 65, (2008), available athttp://yel.oxfordjournals.org/content/27/1/65.short.


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primacy of Community law. Article 1 was amended to include a paragraphrequiring the Czech Republic to observe its obligations resulting frominternational law. 53 Moreover, Article 10 was rewritten to establish that[p]romulgated treaties, to the ratification of which Parliament has given itsconsent and by which the Czech Republic is bound, form a part of the legal order;if a treaty provides something other than that which a statute provides, the treatyshall apply. 54 The provision had originally provided for only international treatiesconcerning human rights to take precedence over domestic law. 55

Most states, however, reform their constitutions to provide for the primacyof Community law subject to compatibility with constitutional provisions. Forinstance, the Romanian Constitution assigns superiority to the EUs human rightstreaties and the jurisprudence of the European Court of Justice. Article 20(2)

provides, Where any inconsistencies exist between the covenants and treaties on

the fundamental human rights Romania is a party to, and the national laws, theinternational regulations shall take precedence, unless the Constitution or nationallaws comprise more favourable provisions. 56 Further, Article 148(2) of theRomanian Constitution provides that the provisions of the constituent treaties ofthe European Union, as well as the other mandatory community regulations shalltake precedence over the opposite provisions of the national laws, in compliancewith the provisions of the accession act. 57

Other states did not adopt constitutional reforms and instead relied on the judgment of their relevant constitutional courts in interpreting existingconstitutional provisions to determine the primacy of EU law. For instance,Article 34 of the Belgian Constitution provides that [t]he exercising of specific

powers can be assigned by a treaty or by a law to institutions of publicinternational law. 58 In interpreting this provision, the Conseil dEtat, whoseresponsibility is to assess the constitutionality of administrative acts, held in 1996

53 CZECH R EPUBLIC CONST ., art. 1(3) (1992). See also Eli ! ka Wagnerov, The Czech Constitutional Court Doctrines

on Community and Union Law , EUROPEAN COMMISSION FOR DEMOCRACY THROUGH LAW CDL-JU(2006)(024) p. 2(2006).54 CZECH R EPUBLIC CONST ., art. 10 (1992).55 Eli ! ka Wagnerov, The Czech Constitutional Court Doctrines on Community and Union Law , EUROPEANCOMMISSION FOR DEMOCRACY THROUGH LAW CDL-JU(2006)(024) p. 2 (2006).56 R OMANIAN CONST ., art. 20(2) (1991), available at http://www.cdep.ro/pls/dic/site.page?id=371.57 R OMANIAN CONST ., art. 148(2) (1991).58 BELGIAN CONST ., art. 34 (2007), available athttp://www.dekamer.be/kvvcr/pdf_sections/publications/constitution/grondwetEN.pdf.


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in Orfinger v. Belgian State that Community law prevails over constitutional law. 59 Moreover, the supremacy of Community law was affirmed by the CourdArbitrage, whose role is to monitor the constitutionality of legislative acts. 60 Likewise, the Austrian Supreme Court in 2000 declared that an EU directive hassupremacy over domestic law even if it violates constitutional provisions. 61

On the other hand, some states have placed EU law somewhere betweenexisting constitutional provisions and federal statutes. 62 For instance, in May of2005, the Polish Constitutional Tribunal annulled provisions in the CriminalProcedure Code implementing the European Arrest Warrant Framework by

permitting the surrender of Polish citizens to another EU state. 63 The provisionsviolated Article 55 of the Polish Constitution, which absolutely prohibited theextradition of Polish citizens. 64 The Tribunal, however, delayed annulment of the

provision for eighteen months, declaring that the government had to resolve the

conflict by either amending the Constitution, withdrawing from the EU, or takingother action. 65 In the Accession Treaty case a few months later, the Tribunalaffirmed the primacy of the Constitution as the supreme legal authority inPoland, even in cases of conflict with Community law. 66 The Tribunal added,however, that the interpretation of domestic law has to take into consideration the

principle of sympathetic predisposition towards the process of Europeanintegration and the cooperation between states. 67 In September 2006, to resolvethe conflict in the European Arrest Warrant case, the government passed a

59 Christian Franck, Herv Leclercq, Claire Vandevivere, Belgium: Europeanisation and Belgian Federalism ,FIFTEEN INTO O NE?: THE EUROPEAN U NION AND ITS MEMBER STATES , 69, 83 (2003), available at http://www.uni-koeln.de/wiso-fak/powi/wessels/DE/PUBLIKATIONEN/texte/TextMaurer/andreas/Belgium.pdf .60 Christian Franck, Herv Leclercq, Claire Vandevivere, Belgium: Europeanisation and Belgian Federalism ,FIFTEEN INTO O NE?: THE EUROPEAN U NION AND ITS MEMBER STATES , 69, 83 (2003).61 See Oberster Gerichtshof, Judgment of Mar. 9, 2000, 6 Ob 14/00b, Wirtschaftsrechtliche Bltter 2000 , 286-288(2000), available at http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:52001DC0309:EN:HTML.62 Lszl Blutman and Nra Chronowski, Hungarian Constitutional Court: Keeping Aloof from European Union

Law, 5 I NTERNATIONAL CONSTITUTIONAL LAW JOURNAL , 329, 334 (2011).63 Judgment of 27th April 2005, P 1/05, Application of the European Arrest Warrant to Polish Citizens (PolandConstitutional Tribunal, April 27, 2005), available athttp://www.trybunal.gov.pl/eng/summaries/summaries_assets/documents/P_1_05_GB.pdf.64 Judgment of 27th April 2005, P 1/05, Application of the European Arrest Warrant to Polish Citizens (Poland

Constitutional Tribunal, April 27, 2005).65 Judgment of 27th April 2005, P 1/05, Application of the European Arrest Warrant to Polish Citizens (PolandConstitutional Tribunal, April 27, 2005).66 See Judgment of 11th May 2005, K 18/04, Polands Membership in the European Union (the Accession Treaty) ,

p. 11 (Poland Constitutional Tribunal, May 11, 2005), available athttp://www.trybunal.gov.pl/eng/summaries/documents/K_18_04_GB.pdf . See also Anneli Albi, Supremacy of EC

Law in the New Member States, 3 EUROPEAN CONSTITUTIONAL LAW R EVIEW , 25 (2007), available athttp://kar.kent.ac.uk/424/1/Supremacy_30OCT07DP.pdf.67 Judgment of 11th May 2005, K 18/04, Polands Membership in the European Union (the Accession Treaty) , p. 11(Poland Constitutional Tribunal, May 11, 2005).


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constitutional amendment providing an exception to the prohibition to allow forextradition under the conditions of EU law. 68

Economic and Monetary Union

The European Central Bank (ECB) is the governing institution for Europessingle currency, the euro, and determines EU-wide economic and monetary

policies with the aim of maintaining the euros price stability and purchasing power. 69 As such, candidate states are required to harmonize domestic economic policy with EU policy. 70 Some states have formalized the delegation of economic policy to the ECB in their constitutions. For instance, Article 88 of the GermanBasic Law provides that the tasks and powers of the Federal Bank can betransferred to the ECB for the purpose of securing stability of prices. 71

As a result of the role of the ECB in harmonizing economic policy, conflictsarise when domestic laws provide for any type of political influence on domestic

banks. 72 This means that constitutional provisions that allow for other state bodiesto exert political influence on the bank may have to be amended to ensureindependence of their banks. 73 For instance, the Croatian Constitution had to beamended because it granted the Croatian Parliament too much authority over theCentral Bank. The Constitution was changed to provide that the Central Bankwould report on its work to the Parliament, 74 instead of being responsible tothe Croatian Parliament. 75 The amendment also set forth the authority of theGovernor of the Croatian National Bank to manage and operate the Bank. 76 On theother hand, the Commission does not look at constitutional provisions alone.Slovenia did not have to amend its Constitution even though it provides that thegovernor of the Central bank is directly accountable to the National Assembly. 77 Because of accompanying lower-level legislation and infrastructure guaranteeing

68 World Intellectual Property Organization, the Constitution of the Republic of Poland (last visited Nov. 15, 2012),available at http://www.wipo.int/wipolex/en/details.jsp?id=7539. See also POLISH CONST ., art. 55 (1997).69 European Central Bank, EU Enlargement and the Euro (last visited Nov. 20, 2012), available athttp://www.ecb.int/ecb/history/enlargement/html/index.en.html.70 Frank Hoffmeister, Constitutional Implications of EU Membership: A View From the Commission, 3 C ROATIAN

YEARBOOK OF EUROPEAN LAW AND POLICY 59, 96 (2008).71 GERMAN BASIC LAW , art. 88 (1949), available at http://www.servat.unibe.ch/icl/gm00000_.html.72 Frank Hoffmeister, Constitutional Implications of EU Membership: A View From the Commission, 3 C ROATIANYEARBOOK OF EUROPEAN LAW AND POLICY 59, 96 (2008).73 Frank Hoffmeister, Constitutional Implications of EU Membership: A View From the Commission, 3 C ROATIANYEARBOOK OF EUROPEAN LAW AND POLICY 59, 94-96 (2008).74 CROATIAN CONST ., art. 53 (1990).75 CROATIAN CONST ., art. 53 (1990) (2001 version).76 CROATIAN CONST ., art. 53 (1990).77 SLOVENE CONST ., art. 152 (1991),


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the independence of the Bank, the Commission determined that constitutionalreform was not necessary. 78

Independence of the Judiciary

Similar to the European Councils concerns for the independence offinancial institutions, some states have also had to reform their constitutions toensure the independence of the judiciary. The acquis requires acceding states toensure that their legal systems are based on the principle of separation of powers. 79 The executive or legislative branches cannot influence judges and judicial officials,and internal mechanisms have to exist to ensure impartiality in the decision-making process. 80 During Romanias accession process, the state adopted a seriesof constitutional amendments reforming the judiciary in response to the EuropeanCouncils concerns about corruption in the region. 81 For instance, the principle of

the separation and balance of powers between the executive, judicial, andlegislative branches was incorporated into the Constitution. 82 Moreover, certaincriminal procedural guarantees were added, including the right to be released fromdetention if no incriminating evidence exists and the prohibition of illegal searchesand seizures. 83 Similarly, the Slovene Constitution had to be amended with regardto the nomination and probationary procedures for judges to provide for greaterindependence of the judiciary. 84

European Citizenship and Voting Rights

According to the Article 19(1) of the Treaty Establishing theEuropean Community, every citizen of the EU residing in a Member State ofwhich he is not a citizen has the right to vote and stand as a candidate atlocal elections in the Member State in which he resides, under the same

78 European Commission, Regular Report on Slovenias Progress Towards Accession, 41 (2002).79 Dimitry Kochenov, Why the Promotion of the Acquis Is not the Same as the Promotion of Democracy and WhatCan Be Dones in Order to Also Promote Democracy Instead of Just Promoting the Acquis, 2 H ANSE LAW R EVIEW , 171, 181 (2006).80

Frank Hoffmeister, Constitutional Implications of EU Membership: A View From the Commission, 3 C ROATIANYEARBOOK OF EUROPEAN LAW AND POLICY 59, 94 ( 2008). 81 Delegation of the European Union to the Republic of Croatia, EC Report: Bulgaria and Romania Need to

Demonstrate Commitment to Rule of Law (Jul. 17, 2012), available athttp://www.delhrv.ec.europa.eu/?lang=en&content=4266.82 Law for the Revision of the Constitution of Romania, p. 1 (Romania, 1997), available athttp://www.cdep.ro/pdfs/reviz_constitutie_en.pdf.83 Law for the Revision of the Constitution of Romania, p. 3 (Romania, 1997).84 Frank Hoffmeister, Constitutional Implications of EU Membership: A View From the Commission, 3 C ROATIANYEARBOOK OF EUROPEAN LAW AND POLICY 59, 94 ( 2008).


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conditions as citizens of that Member State. 85 As such, many EU MemberStates have modified their respective constitutional provisions on the right tovote. 86 For instance, Article 28(1) of the German Basic Law provides thatin county and municipal elections, persons who possess citizenship in anyMember State of the European Community are also eligible to vote and to beelected in accord with European Community Law. 87 Likewise, Article16(4) of Romanias Constitution was amended to grant citizens of the EUthe right to elect and be elected to office. 88

Extradition of Nationals

Some Member States modified relevant constitutional provisionsfollowing the European Court of Justices 2002 decision requiring MemberStates to surrender persons to another Member State if the latter issues a

European Arrest Warrant. 89 States amended existing constitutional provisions prohibiting the extradition of their citizens to provide anexception under the European Arrest Warrant Framework. Some states,such as Slovenia, Bulgaria, and Romania, amended their constitutions tocomply with the decision prior to EU accession. For instance, Article 19(1)of the Romanian Constitution provides that Romanian citizens can beextradited based on the international agreement Romania is a party to. 90

Other states, such as Poland and Cyprus, only amended theirconstitutions after the provisions were challenged in their respectiveconstitutional courts. 91 As mentioned earlier, the Polish governmentamended Article 55 of the Constitution, prohibiting the extradition of Polishcitizens only after the Polish Constitutional Tribunal declared a revision in

85 Frank Hoffmeister, Constitutional Implications of EU Membership: A View From the Commission, 3 C ROATIANYEARBOOK OF EUROPEAN LAW AND POLICY 59, 94 (2008).86 Frank Hoffmeister, Constitutional Implications of EU Membership: A View From the Commission, 3 C ROATIAN

YEARBOOK OF EUROPEAN LAW AND POLICY 59, 94 (2008).87 GERMAN BASIC LAW , art. 28(1) (1949).88 R OMANIAN CONST ., art. 16(4) (1991). See also Frank Hoffmeister, Constitutional Implications of EU

Membership: A View From the Commission, 3 C ROATIAN YEARBOOK OF EUROPEAN LAW AND POLICY 59, 92-93(2008).89 Frank Hoffmeister, Constitutional Implications of EU Membership: A View From the Commission, 3 C ROATIANYEARBOOK OF EUROPEAN LAW AND POLICY 59, 92-93 (2008).90 R OMANIAN CONST ., art. 19(1) (1991).91 Frank Hoffmeister, Constitutional Implications of EU Membership: A View From the Commission, 3 C ROATIANYEARBOOK OF EUROPEAN LAW AND POLICY 59, 92-93 (2008).


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the Criminal Procedure Code unconstitutional. 92 Although Cyprus enteredthe EU in 2004, it did not amend its constitutional provisions prohibiting theextradition of Cypriot citizens until after the Supreme Court of Cyprusdeclared a domestic law implementing the European Arrest Warrant asunconstitutional in 2005. 93 In 2006, the government amended the provisionsof Article 11 of the Cypriot Constitution to allow for the arrest or detentionof citizens and foreigners in Cyprus in accordance with the EU law. 94

Comparative State Practice

Comparative analysis of the state practice of some of the European Unionsmost recent members provides useful guidance into the accession process forcandidate states. An assessment of specific constitutional amendments and related

provisions these states have had to undertake will illustrate the necessary legal and

administrative reforms required of states in the accession process.

Slovenia

Accession negotiations with Slovenia were concluded on December 13,2002 and the Treaty of Accession was signed on April 16, 2003. The Treaty ofAccession was approved via referendum the following year, 95 and the date foraccession was set for May 1, 2004. 96 The negotiations process lasted for fiveyears, between 1998 and 2003, alongside nine other Central and Eastern Europeanstates. 97

92 Rafal Manko, the Polish Tribunal in the European Union, INTEGRATION OR ABPSORPTION ? LEGAL DISCOURSE INAN E NLARGED U NION , sec. 3.2.1 (Sept. 26-28, 2006), available at http://www.mzes.uni-mannheim.de/projekte/typo3/site/fileadmin/research%20groups/2/Hanover2006/Hannover_paper_Manko_DOC.pdf.93 Council fo the European Union, Decisions of Supreme Courts and Constitutional Courts Concerning the

European Arrest Warrant, Doc. 14281/05, p. 2 (Nov. 11, 2005), available athttp://www.asser.nl/upload/eurowarrant-webroot/documents/cms_eaw_id778_1_CouncilDoc.14281.05.pdf.94

The Fifth Amendment of the Constitution Law of 2006, p. 3 (Republic of Cyprus, 2006), available athttp://www.olc.gov.cy/olc/olc.nsf/all/EC240D2A9413ABBB4225793A00403484/$file/The%20Fifth%20Amendment%20of%20the%20Constitution%20Law%20of%202006.pdf?openelement.95 Frank Hoffmeister, Constitutional Implications of EU Membership: A View From the Commission, 3 C ROATIANYEARBOOK OF EUROPEAN LAW AND POLICY 59, 73 (2008).96 European Commission, Comprehensive Monitoring Report on Slovenias Preparations for Membership, (2003),available at http://ec.europa.eu/enlargement/archives/pdf/key_documents/2003/cmr_si_final_en.pdf.97 Government Office for Development and European Affairs, Archive Slovenias Accession to the EU,GOVERNMENT OF R EPUBLIC OF SLOVENIA (2012), available athttp://www.svrez.gov.si/en/areas_of_work/archive_slovenias_accession_to_the_eu/.


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of this progress, the Commission concluded that Slovenia had a functioning marketeconomy with the capacity to cope with the EUs competitive pressure and marketforces. 107 Slovenia was commended for decreasing its unemployment rate andincreasing the size of the GDP to the EU average. 108 Although Slovenia was urgedto make some constitutional reforms to meet the political criteria, no constitutionalreforms to meet the economic criteria were necessary. Constitutional provisionsrelating to the Central Bank, supported by implementing legislation andinfrastructure, were determined sufficient in establishing the Central Banksindependence. 109

Adoption of the Acquis Slovenia was similarly praised as making good progress on the

implementation of the acqui s, as well as developing institutions necessary for itsenforcement, though there was some room for improvement in certain areas of the

acquis .110 For instance, while Slovenias legislative framework was aligned withthe objectives of the acquis , administrative capacity and technical assistance wereneeded. 111 As mentioned above, Slovenia did adopt some constitutionalamendments regarding the delegation of sovereignty, property rights, andextradition in order to harmonize its laws with the acquis. Such amendments, aswell as additional lower-level legislative and administrative reforms, led theCommission to conclude by 2003 that Slovenia was sufficiently on track to meetits obligations under the acquis .112

Czech Republic

The Czech Republic signed the Treaty of Accession on April 16, 2003 and became a member of the European Union on May 1, 2004. 113 Negotiations beganin March 1998 and concluded in December 2002, alongside Slovenia and otherCentral European states. 114 Because the Czech Republics Constitution was amarkedly national constitution, greatly emphasizing its sovereignty and

107 European Commission, Regular Report on Slovenias Progress Towards Accession, 41 (2002).108 European Commission, Regular Report on Slovenias Progress Towards Accession, 43 (2002).

109 European Commission, Regular Report on Slovenias Progress Towards Accession, 41 (2002).110 European Commission, Regular Report on Slovenias Progress Towards Accession, 43 (2002).111 European Commission, Regular Report on Slovenias Progress Towards Accession, 117 (2002).112 European Commission, Comprehensive Monitoring Report on Slovenias Preparations for Membership, 30 (2003).113 Embassy of the Czech Republic, Czech Republic and European Union (last visited Nov. 20, 2012), available athttp://www.mzv.cz/dublin/en/about_the_czech_republic/czech_republic_and_european_union/index.html.114 Embassy of the Czech Republic, Czech Republic and European Union (last visited Nov. 20, 2012).


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independence, the state had to amend the Constitution to allow for the transfer of powers through the Constitutional Act No. 395/2001 Sb on June 1, 2001. 115

Political CriteriaThe 2001 Amendments changed the language of Article 1 of the

Constitution to include a provision committing the Czech government to observeits obligations resulting from international law. 116 Moreover, Article 10a wasadded in its entirety, allowing for [c]ertain powers of the Czech Republicauthorities [to] be transferred by treaty to an international organization orinstitution. 117 Article 10b was also added, obligating the government to informthe Parliament on issues connected to its obligations under international treaties,including the TEU. 118 These provisions provide for the delegation of sovereigntyto the EU in full commitment to upholding Community goals of legal, economic,and political harmony.

In addition, the provisions in the Constitution establishing the jurisdictionand role of the Constitutional Court were amended to clarify the Courts authoritywith regards to Community law. 119 Article 87(2) provides, Prior to the ratificationof a treaty under Article 10a or Article 49, the Constitutional Court shall furtherhave jurisdiction to decide concerning the treatys conformity with theconstitutional order. A treaty may not be ratified prior to the Constitutional Courtgiving judgment. 120 While these provisions do not establish that EU law prevails,the Court is required to interpret constitutional law taking into account the

principles arising from Community law. 121 Where the Court decides that a treatyis not in conformity with the Constitution, the treaty may not be ratified. 122

115 Eli ! ka Wagnerov, The Czech Constitutional Court Doctrines on Community and Union Law , EUROPEANCOMMISSION FOR DEMOCRACY THROUGH LAW , p. 2 (2006), available at http://www.venice.coe.int/docs/2006/CDL-JU(2006)024-e.pdf; see also Report of the Constitutional Court of the Czech Republic, the Relations Between theConstitutional Courts and the other National Courts, Including the Interference in the Area of the Action of the

European Courts, CONFERENCE OF EUROPEAN CONSTITUTIONAL COURTS : XIITH CONGRESS p. 4 (Aug. 27, 2012),available at http://www.confcoconsteu.org/reports/rep-xii/Tsjechie-EN.pdf.116

CZECH R EPUBLIC CONST ., art. 1 (1992).117 CZECH R EPUBLIC CONST ., art. 10a (1992).118 CZECH R EPUBLIC CONST ., art. 10b (1992).119 Eli ! ka Wagnerov, The Czech Constitutional Court Doctrines on Community and Union Law , EUROPEANCOMMISSION FOR DEMOCRACY THROUGH LAW CDL-JU(2006)(024) p. 2 (2006).120 CZECH R EPUBLIC CONST ., art. 87(2) (1992).121 Eli ! ka Wagnerov, The Czech Constitutional Court Doctrines on Community and Union Law , EUROPEANCOMMISSION FOR DEMOCRACY THROUGH LAW CDL-JU(2006)(024) p. 5 (2006) (citing to the Sugar Quotas case Pl. US 50/04).122 CZECH R EPUBLIC CONST ., art. 89 (1992).


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Unlike Slovenia, the Czech Republic did not have to adopt anyconstitutional amendments referring to extradition of Czech citizens, nor changeany provisions relating to property and voting rights for foreigners. Extradition isnot mentioned in the Czech Republics Constitution. Moreover, constitutional

provisions regarding voting and property rights for foreigners did not violate theacquis or hinder the free movement of persons and property. 123

Economic CriteriaThe Czech Republic did not adopt constitutional reforms to meet the

economic criteria, but rather adopted lower-level reforms on banking laws andfiscal policies. In its 2002 Report, the European Commission concluded that theCzech Republic was a functioning market economy and [t]he continuation of itscurrent reform path should enable the Czech Republic to cope with competitive

pressure and market forces within the Union. 124 The Constitution stipulates that

the President of the Republic will appoint members of the Banking Council, 125 andthat the Czech National Bank is responsible for maintaining price stability and theBanks powers are governed by statute. 126 The Commission did not mentionconstitutional amendments to these provisions in its Progress Reports. 127 Rather,the Commission commended the Czech Republic for maintaining economic

policies in line with the EU since 1997. 128 In 2002, the Banking Act was amendedto further strengthen the independence of the Czech National Bank. 129

Adoption of Acquis In its 2003 Report, the Commission commended the Czech Republic for

essentially meeting the requirements for membership with regards to severalchapters of the acquis, including sections on the free movement of goods andservices, banking, social policies, and the coordination of structural policies,among others. 130 In other areas, including the free movement of persons,

123 See CZECH R EPUBLIC CONST ., art. 89 (1992). Compare CZECH R EPUBLIC CONST ., arts. 18-19 (1993) (1993version), available at http://www.servat.unibe.ch/icl/ez00000_.html.124 European Commission, Comprehensive Monitoring Report on the Czech Republics Preparations for

Membership , p. 3 (2002), available athttp://ec.europa.eu/enlargement/archives/pdf/key_documents/2003/cmr_cz_final_en.pdf.125

CZECH R EPUBLIC CONST ., art. 62 (1992). 126 CZECH R EPUBLIC CONST ., art. 87(2) (1992). 127 European Commission, Enlargement (2012), available at http://ec.europa.eu/enlargement/countries/strategy-and-

progress-report/index_en.htm. 128 European Commission, Regular Report on Czech Republics Progress Towards Accession , p. 39 (2002),available at http://ec.europa.eu/enlargement/archives/pdf/key_documents/2002/cz_en.pdf. 129 European Commission, Regular Report on Czech Republics Progress Towards Accession , p. 39 (2002),available at http://ec.europa.eu/enlargement/archives/pdf/key_documents/2002/cz_en.pdf. 130 European Commission, Comprehensive Monitoring Report on the Czech Republics Preparations for

Membership , p. 53 (2002).


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agricultural policies, and transportation mechanisms, the Czech Republic neededimmediate improvements. 131 The government responded by passing legislationand adopting strategies to address these problem areas, but did not pursueconstitutional reform. As mentioned earlier, the government did include anadditional provision in the Constitution expressing the Czech Republicscommitment to abide by its international obligations, 132 which would include theacquis as provided under the Accession Treaty.

Bulgaria

Bulgaria submitted its application for EU membership in December 1995, but the European Commission did not present its first report until November1998. 133 In February 2000, following the Helsinki European Councils decision,accession negotiations were formally opened. 134 Accession negotiations lasted

until December 2004, and the Accession Treaty was signed on April 25, 2005. 135 Bulgaria was set to join the EU on January 1, 2007. 136 Unlike the previousenlargement, the Accession Treaty with Bulgaria (and Romania, who also joinedthe EU in 2007), included a provision that allowed for the postponement ofaccession by one year if the EU saw a serious risk that the state would be unableto implement the required reforms. 137 Moreover, the Treaty reserved the right ofthe EU to intervene in economic and political policies for up to three years afterBulgarias accession. 138 Unlike Slovenia and the Czech Republic, Bulgaria wasrequired to institute a number of constitutional reforms to meet the Copenhagencriteria and, by 2006, still had remaining issues with regards to the accountabilityand efficiency of the judicial system and law enforcement bodies. 139

Political CriteriaFollowing the conclusion of Accession Negotiations, Bulgaria adopted a

number of amendments shortly before the signing of the Accession Treaty on April

131 European Commission, Comprehensive Monitoring Report on the Czech Republics Preparations for Membership , p. 54 (2002).132 CZECH R EPUBLIC CONST ., art. 87(2) (1992).133

European Commission, EU-Bulgaria Relations (2007), available athttp://ec.europa.eu/enlargement/archives/bulgaria/eu_bulgaria_relations_en.htm.134 European Commission, EU-Bulgaria Relations (2007).135 European Commission, EU-Bulgaria Relations (2007).136 European Commission, EU-Bulgaria Relations (2007).137 Treaty of Accession of Bulgaria and Romania , art. 39 (2005), available at http://eur-lex.europa.eu/LexUriServ/site/en/oj/2005/l_157/l_15720050621en00290045.pdf138 Treaty of Accession of Bulgaria and Romania , art. 37 (2005).139 European Commission, Commission Decisions p. 2 (2006), available athttp://ec.europa.eu/enlargement/pdf/bulgaria/bg_accompanying_measures_1206_en.pdf.


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13, 2005. In February 2005, Bulgaria amended constitutional provisions relatingto the states participation in the EU, extradition of Bulgarian citizens, and the

political and property rights for European citizens. 140 The amendments alsoclarified the authority of the National Assembly to ratify international treaties, andthe responsibility of the Council of Ministers in ensuring Bulgaria met itsobligations under the EU. 141 Article 25 prohibiting extradition was also amendedto provide an exception for the European Arrest Warrant. 142

Although these constitutional amendments were designed to address some ofthe primary concerns expressed by the Commission during the negotiations, manyof Bulgarias existing provisions remain inconsistent with EU law and the acquis .For instance, although Bulgaria amended Article 4(3) to provide for the delegationof sovereignty once the state became a member, the language of the provisionremains problematic. There is no mention of delegation of sovereignty to the EU

or international organizations; rather, Article 4(3) only mentions that Bulgariawill participate in the building and development of the European Union. 143 Bulgaria has since amended its Constitution two more times, but has not changedthe language of this particular provision. Moreover, Articles 5(4) and 85(3) limitthe supremacy of ratified treaties and international law only to state statutes andnot the Constitution. 144

Between the signing of the Treaty and accession to membership on January1, 2007, the Commission closely monitored Bulgarias progress in implementingthe necessary reforms to comply with the acquis .145 The Unions primary concernscentered on the independence of the judiciary, combating corruption and moneylaundering, and suppressing organized crime. 146 To address these concerns beforeits entry into the EU, Bulgaria adopted another series of constitutional amendmentsin 2006. 147 Article 70 was amended to clarify and provide for immunity for

140 BULGARIAN CONST ., art. 22 (1991), available at http://www.parliament.bg/en/const.141 See BULGARIAN CONST ., art. 22 (1991); compare 1991 B ULGARIAN CONST ., art. 22 (1991), available at

http://eudo-citizenship.eu/NationalDB/docs/BUL%201991%20Constitution%20of%20Bulgaria%20(English).pdf.142 BULGARIAN CONST ., art. 4(3) (1991).143 BULGARIAN CONST ., art. 25 (1991).144 See BULGARIAN CONST ., art. 5(4) and 85(3) (1991),145 European Commission, Report on Bugarias Progress in Accompnaying Measures Following Accession, (Jun.27, 2007), available at http://ec.europa.eu/bulgaria/abc/pre_accession/key_documents/index_en.htm.146 European Commission, Report on Bugarias Progress in Accompanying Measures Following Accession (Jun. 27,2007).147 European Commission, Report on Bugarias Progress in Accompanying Measures Following Accession (Jun. 27,2007).


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Members of the National Assembly. Moreover, an office of the Ombudsman wasestablished to defend the rights and freedoms of citizens. 148

Additional reforms to the judicial sector included clarifying the role andindependence of the Prosecution Office and diminishing the authority of theMinister of Justice in appointing, disciplining, and removing judges. 149 Theindependence of the Judiciary was further strengthened in 2007 (after Bulgariasofficial entry into membership) when Bulgaria adopted two more amendments toaddress the Commissions concerns. Article 130 was amended to eliminate anyambiguities in the independence and accountability of the Supreme JudicialCouncil and further exclude the Ministry of Justice from influencing the Judiciary.Article 132 was also amended to establish the independent judicial inspectorate tomonitor the integrity of the judiciary and follow-up on complaints. 150

In addition to these constitutional amendments, the Commission urged thegovernment to adopt implementing legislation and develop the administrativestructures necessary to execute and apply the reforms. Regulations to evaluate the

professionalism and ethics of magistrates were adopted, and the penal codereformed to strengthen accountability mechanisms. 151 Additionally, anti-corruption measures needed to be reinforced, with procedural training provided for

police investigators and ethics training provided for prosecutors and magistrates. 152 Toward this end, the Commission established the Cooperation and VerificationMechanism in 2006 to monitor and set benchmarks for improving the judicialsector. 153 The Cooperation and Verification Mechanism continues to monitor the

progress of Bulgaria in reforming its judiciary, still voicing concerns for continuedreforms in the penal code, the provision of protection mechanisms for victims andwitnesses, and improved anti-corruption measures for high-level officials. 154

Economic CriteriaThe European Commissions 2006 Report confirmed that Bulgaria had a

functioning market economy and had made significant progress in its fiscal and

148 BULGARIAN CONST ., art. 91(a) (1991).149

European Commission, Report on Bugarias Progress in Accompanying Measures Following Accession (Jun. 27,2007).150 European Commission, Report on Bulgarias Progress on Accompanying Measures Following Accession, sec.3.1 (Jun. 27, 2007); see also BULGARIAN CONST ., Ch. 6 (1991).151 European Commission, Communication from the Commission , p. 14 (2006).152 European Commission, Communication from the Commission , p. 15 (2006).153 European Commission, Commission Decisions, p. 2 (2006). See also European Commission, Report on

Bulgarias Progress in Accompanying Measures Following Accession, (Jun. 27, 2007). 154 European Commission , Report on Bulgarias Progress on Accompanying Measures Following Accession, p. 11-15 (Jun. 27, 2007).


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wage policies, as well as in the privatization and liberalization of trade. 155 However, certain issues still needed to be addressed, including containingBulgarias high external deficit, easing the regulatory framework for businessesand the labor market, and improving the functioning of the judicial system. 156 Bulgaria has halted its euro membership plans 157 and has not adopted constitutional

provisions in relation to the economic conditions of the Copenhagen Criteria. 158 The existing constitutional provisions provide only that the National Assembly hasauthority to elect and remove the Governor of the National Bank. 159 Absent otherconflicting provisions, it is unclear whether the Commission will requireconstitutional reform to ensure the independence of the Bank.

Adoption of Acquis In its 2006 Report, the Commission noted that significant progress has been

made with regard to the free movement of persons, the free movement of services,

including banking and securities, and agriculture and fisheries policies. 160 However, progress is needed in other areas, including preparing for applying theSchengen acquis , which are rules and regulations arising from the SchengenAgreement, 161 and meeting the EUs goals for monetary union. 162 In particular, theCommission noted the vulnerability of Bulgarias borders with regard totrafficking in human beings and goods, as well as its position as a transit state forthe smuggling of drugs. 163

155 European Commission, Monitoring Report on the State of Preparedness for EU Membership of Bulgaria and Romania , p. 22 (Sept. 26, 2006), available athttp://ec.europa.eu/enlargement/pdf/key_documents/2006/sept/report_bg_ro_2006_en.pdf.156 European Commission, Monitoring Report on the State of Preparedness for EU Membership of Bulgaria and

Romania , p. 22-23 (Sept. 26, 2006).157 Benjamin Fox, Bulgaria Shelves Euro Membership Plans, EURO OBSERVER (Sept. 4, 2012), available athttp://euobserver.com/economic/117415.158

See BULGARIAN CONST . (1991).159 BULGARIAN CONST ., art. 84(a) (1991).160 European Commission, Monitoring Report on the State of Preparedness for EU Membership of Bulgaria and

Romania , p. 22 (Sept. 26, 2006).161 Council of the European Union, the Schengen Acquis , p. 3 (1999), available athttp://ec.europa.eu/enlargement/pdf/key_documents/2006/sept/report_bg_ro_2006_en.pdf.162 European Commission, Monitoring Report on the State of Preparedness for EU Membership of Bulgaria and

Romania , p. 31 (Sept. 26, 2006).163 European Commission, Monitoring Report on the State of Preparedness for EU Membership of Bulgaria and

Romania , p. 31 (Sept. 26, 2006).


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Croatia

Croatia applied for EU membership in 2003 and was in negotiations from2005 until 2011. 164 Croatia closed accession negotiations with the EU on June 30,2011, 165 and on December 9, 2011, Croatia signed an Accession Treaty to becomethe European Unions twenty-eighth member. 166 The EU expects the ratification

process by the parliaments of the EU Member States to conclude by the end ofJune 2013. 167 Thus, Croatias entry into the EU is set for July 1, 2013. 168

Political CriteriaThroughout Croatias accession process, the Commission was primarily

concerned with strengthening the judiciary, combating corruption, and protectinghuman rights. 169 To address these concerns, on June 16, 2010, the Croatiangovernment adopted a number of constitutional amendments in preparation for

accession to the EU. 170 Some revisions were to take effect immediately, whileothers referring to the European Union and EU citizens would only take effectupon Croatias accession to the Community in 2013. 171 Revisions relating to the

protection of minorities and the independence of the judiciary were promulgatedimmediately. The government expanded the introduction to the Constitutiondescribing Croatia as a state of autochthonous national minorities to includetwelve additional ethnic groups as recognized minorities, including Bosniaks andRoma. 172 Alongside this change, Croatia also passed the Constitutional ActAmending the Constitutional National Minority Rights Act, which expandedrepresentation of minorities in the Croatian Parliament, and provided greater

protection for the Serbian minority by recognizing the Serbian National Council. 173

164 European Commission, Croatia (2012), available at http://ec.europa.eu/enlargement/countries/detailed-country-information/croatia/index_en.htm.165 European Commission, EU Closes Accession Negotiations with Croatia (Jun. 30, 2011), available at http://europa.eu/rapid/pressReleasesAction.do?reference=IP/11/824&format=HTML&aged=0&language=EN&guiLanguage=en.166 European Commission, Croatia (2012). See also European Commission, EU Closes Accession Negotiations withCroatia (Jun. 30, 2011).167

European Commission, EU Closes Accession Negotiations with Croatia (Jun. 30, 2011).168 European Commission, EU Closes Accession Negotiations with Croatia (Jun. 30, 2011) . 169 European Commission, Croatia 2011 Progress Report , 9 (2011) . 170 See CROATIAN CONST ., ch. 8 (1990), available at http://www.sabor.hr/Default.aspx?art=2405.171 CROATIAN CONST ., art. 152 (1990).172 See CROATIAN CONST ., ch. I (1990). 173 See Constitutional Act Amending the Constitutional National Minority Rights Act (Croatia, 2010), available at http://www.sabor.hr/Default.aspx?art=2448. See also Constitutional Law on the Rights of National Minorities(Croatia, 2002), available at http://www.vsrh.hr/CustomPages/Static/HRV/Files/Legislation__Constitutional-Law-on-the-Rights-NM.pdf.


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Croatia also implemented a judicial reform package that included a numberof constitutional amendments pertaining to the independence of the judiciary. Forinstance, the amendments removed the probationary 5-year initial term period for

judges and the Deputy Prosecutors General. 174 Instead, the language was changedto provide for life tenure at the outset of their appointment. 175 The revisedlanguage also affirmed the independence of the National Judiciary Council and itsauthority to autonomously decide on the appointment, dismissal, and disciplinaryaccountability of judges, removing any requirement to first consult the Parliament

before taking such action. 176 Similarly, the revised Constitution removed any provision granting the Parliament authority to appoint the Public ProsecutorsCouncil, the independent body responsible for keeping the Public Prosecutorsaccountable. 177 The 2010 amendments also inserted Article 54 into theConstitution, establishing a State Audit Office as the supreme audit institution inthe state. 178

Other provisions relating to EU integration were also added to theConstitution, including the rights of EU citizens, the rights of Croatian citizens inthe EU, the primacy of EU law, and the extradition procedures, to take effect onlyupon Croatias accession on July 1, 2013. 179 Article 9(2) was included to providefor an exception to the rule forbidding the extradition of Croatian citizens inaccordance with the acquis . Additionally, an entire chapter on the EU wasadded. 180 The chapter sets forth the legal grounds for Croatias membership intothe EU, the states participation in EU institutions, the role of Community law indomestic jurisprudence, and the rights of Croat citizens as citizens of the EU. 181 These rights include freedom of movement in Croatia, and active and passivevoting rights in any European parliamentary elections or local elections of MemberStates in accordance with that Member States law. 182

Economic CriteriaIn its 2011 Progress Report for Croatia, the European Commission declared

that Croatia had maintained a functioning market economy. 183 Despite rising

174 See CROATIAN CONST ., art. 123, 125 (1990). See also CROATIAN CONST . (1990) (2001 version), available at

http://www.unhcr.org/refworld/pdfid/3ae6b551c.pdf.175 See CROATIAN CONST ., art. 123, 125 (1990). See also CROATIAN CONST . (1990) (2001 version).176 See CROATIAN CONST ., art. 124 (1990). See also CROATIAN CONST ., art. 123 (1990) (2001 version).177 See CROATIAN CONST ., art. 125 (1990). See also CROATIAN CONST ., art 124 (1990) (2001 version).178 CROATIAN CONST ., art. 54 (1990).179 CROATIAN CONST ., art. 152 (1990).180 CROATIAN CONST ., ch. VIII (1990).181 CROATIAN CONST ., art. 133(4),144-146 (1990).182 CROATIAN CONST ., art. 146 (1990).183 European Commission, Croatia 2011 Progress Report , 23 (2011) .


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unemployment and the increase in the external debt, prudent measures bymonetary authorities contained the fiscal deficit to support market institutions. 184 Moreover, the Commission found that Croatia had an open economy and trade

policies in line with EU policy. 185 As mentioned earlier, Croatia established theauthority and independence of the State Audit Office to ensure good governanceover all political and financial matters within the government. 186 Moreover,Croatia made substantial progress in aligning its monetary policy with the acquis

by amending the Constitution to ensure the full independence of the CentralBank. 187 The original constitutional provision provided that the Bank would beresponsible to the Croatian Parliament. 188 This provision was revised to providethat the Bank would only report on its work to the Croatian Parliament. 189 Moreover, the revised provision established the authority of the Governor of theCroatian National Bank to manage and operate the Bank. 190 The government alsolater adopted lower-level measures incorporating the Croatian National Bank into

the European System of Central Banks to participate in the operation of allEuropean Central Bank institutions. 191

Adoption of the Acquis As a result of its progress within the political and economic criteria, Croatia

was commended for its alignment of political and economic policy with theacquis. 192 In particular, the Commission noted Croatias recent passage oflegislation relating to migration, immigration, and asylum policies as consistentwith the Communitys union objectives. 193 Moreover, alignment with the acquis ismentioned throughout the amended Constitution, particularly with regard to the

provisions relating to EU integration. 194 With regard to the other acquis chapters,such as the free movement of capital and people, economic and monetary policy,

184European Commission, Croatia 2011 Progress Report , 23 (2011).185 European Commission, Croatia 2011 Progress Report , 24 (2011).186 CROATIAN CONST ., art. 54 (1990). See also European Commission, Croatia 2010 Progress Report , 64 (2010),available at http://ec.europa.eu/enlargement/pdf/key_documents/2010/package/hr_rapport_2010_en.pdf . 187 European Commission, Croatia 2010 Progress Report , 41 (2010) . 188 CROATIAN CONST ., art. 53 (1990) (2001 version).189

CROATIAN CONST ., art. 53 (1990).190 CROATIAN CONST ., art. 53 (1990).191 Croatian National Bank, the Republic of Croatia and the EU (2012), available athttp://www.hnb.hr/medjunarodna_suradnja/emedjunarodna_suradnja.htm.192 European Commission, Communication from the Commission to the European Parliament and the Council , 10(Apr. 24, 2012).193 European Commission, Communication from the Commission to the European Parliament and the Council , 12(Apr. 24, 2012).194 European Commission, Communication from the Commission to the European Parliament and the Council , 12(Apr. 24, 2012).


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and foreign security, alignment with EU law is almost complete. 195 Thoughsome outstanding issues remain, Croatia appears on track for EU membershiphaving reached a considerable degree of alignment with the acqui s.196

Serbia

In 2003, the EU identified Serbia as a potential candidate for EUmembership during the Thessaloniki European Council summit. In 2008, theEuropean Council adopted a European Partnership for Serbia, setting out prioritiesfor the state's membership application. 197 In 2009, Serbia formally applied formembership to the EU. 198 Recently, in March 2012, the EU granted Serbia EUcandidate status. 199

Political Criteria

Serbia adopted a new Constitution in 2006 in an effort to distance itself fromthe 1990 Constitution that had been associated with the presidency of SlobodanMilosevic. 200 Although similarly drafted as its predecessor, the 2006 Constitution

passed via referendum as a means to preserve the province of Kosovo andMetohija permanently within the sovereign state of Serbia. At the time, the United

Nations was discussing the future of Kosovo, and Serbia moved quickly to namethe province of Kosovo and Metohija an integral part of the territory of Serbia,[with] the status of substantial autonomy within he sovereign state of Serbia. 201 Other changes to the Constitution included the elimination of social property andreference to the Federal Republic of Yugoslavia since Montenegro had declaredindependence in early 2006. 202

195 European Commission, Communication from the Commission to the European Parliament and the Council , 12(Apr. 24, 2012).196 European Commission, Communication from the Commission to the European Parliament and the Council , 12(Apr. 24, 2012).197

European Commission, Serbia (2011), available at http://ec.europa.eu/enlargement/countries/detailed-country-information/serbia/index_en.htm.198 European Commission, Serbia (2011) . 199 European Commission, Serbia (2011) . 200 RadioFree Europe/Radio Liberty, Timeline: the Political Career of Slobodan Milosevic (Mar. 13, 2006),available at http://www.rferl.org/content/article/1066641.html. 201 SERBIA CONST ., Preamble (2006), available athttp://www.srbija.gov.rs/cinjenice_o_srbiji/ustav.php?change_lang=en.202 Nicholas Wood, Montenegrins Elect to End Union with Serbia, NEW YORK TIMES (May 22, 2006), available athttp://www.nytimes.com/2006/05/22/world/europe/22cnd-monte.html.


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As a fairly new constitution, and one that had received comments from theVenice Commission prior to its adoption, 203 the European Commissioncommended the Constitution as largely in line with European standards. 204 Implementing the Constitution, however, remains a key priority and Serbia has

been slow in adopting the necessary laws and mechanisms required by theConstitution. 205 For instance, Article 110 of the Constitution provides that [t]heLaw on the National Parliament shall be enacted, 206 but the Serbian Parliamentonly enacted the relevant law in February 2010. 207 The law established

parliamentary budgetary autonomy through a separate budget as opposed to the previous practice of government-decided allocations. 208 Moreover, Article 185 ofthe Constitution provides for the adoption of the Statute of the AutonomousProvince of Vojvodina, 209 which will regulate the competencies of the province.However, the Serbian Parliament has yet to adopt such a law. 210

Despite its high level of compliance with European standards, someconstitutional provisions remain problematic; in particular, the level of control by

political parties over parliamentary mandates and the Parliaments role in theappointment and dismissal of the judiciary. 211 Article 102 provides that a deputyshall be free to irrevocably put his/her term of office at disposal to the political

party that elected him or her. 212 Such authority grants political parties tremendousinfluence over parliamentary mandates. In addition, the National Assembly hasconstitutional authority to appoint and dismiss five justices of the ConstitutionalCourt, 213 appoint the President of the Supreme Court of Cassation and lower court

judges, 214 as well as appoint the Civic Defender 215 and Republic PublicProsecutor. 216 If the Commission finds that these provisions compromise theindependence of the judiciary, Serbia may have to adopt constitutionalamendments or lower-level legislation to resolve these areas of conflict.

203 Venice Commission, Opinion on the Constitution of Serbia (Mar. 17-18, 2007), available athttp://www.venice.coe.int/docs/2007/CDL-AD(2007)004-e.pdf.204 European Commission, Serbia 2012 Progress Report , 6 (2012), available at http://ec.europa.eu/enlargement/pdf/key_documents/2012/package/sr_rapport_2012_en.pdf . 205 European Commission, Serbia 2010 Progress Report , 6 (2010), available at http://ec.europa.eu/enlargement/pdf/key_documents/2010/package/sr_rapport_2010_en.pdf.206 SERBIAN CONST ., art. 110 (2006).207

European Commission, Serbia 2010 Progress Report , 6 (2010) . 208 European Commission, Serbia 2010 Progress Report , 6 (2010) . 209 SERBIAN CONST ., art. 185 (2006).210 European Commission, Serbia 2012 Progress Report , 17 (2012) . 211 European Commission, Serbia 2012 Progress Report , 6 (2012).212 SERBIAN CONST ., art. 102 (2006).213 SERBIAN CONST ., art. 172 (2006).214 SERBIAN CONST ., art. 144 (2006).215 SERBIAN CONST ., art. 138 (2006).216 SERBIAN CONST ., art. 158 (2006).


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Economic CriteriaThe European Commissions 2012 Progress Report did not mention any

necessary constitutional reforms with regard to Serbia meeting the EUs economiccriteria. 217 Although Article 95 of the Constitution establishes the National Bankof Serbia as an independent bank, 218 its accompanying provisions subject theBank to potential political influence. The Bank is subject to supervision by the

National Assembly and managed by the Governor elected by the NationalAssembly. 219 These provisions closely mirror the problematic provisions in theCroatian Constitution regarding the Croatian Central Bank, which the Commissiondetermined granted excessive parliamentary authority and, therefore, underminedthe independence of the Bank. 220 On the other hand, constitutional reform may beunnecessary as the Constitution provides for the enactment of the Law on the

National Bank of Serbia. 221 Like Slovenia, Serbia may only need to reform lower-

level legislation to make sure the Bank is free from political influence.

Adoption of the Acquis As mentioned above, the Commission commended the Serbian Constitution

as in line with European standards. Serbia, however, still needs to develop andstrengthen administrative institutions and policies to meet its obligations under theacquis. For instance, in the area of consumer protection and health, theCommission urged the government to strengthen efforts implementing the existinglegislative framework and to foster institutional cooperation between consumer

protection organizations and public health programs. 222 Similarly, in the area ofeducation and culture, while Serbia was commended for reforming the educationsystem to be more socially inclusive of ethnic minorities, implementation of suchreforms has been slow. 223

Conclusion

The Treaty of the European Union (TEU) provides that any European Statewhich respects the principles set out in Article 6(1) [of liberty, democracy, respectfor human rights and fundamental freedoms, and the rule of law] may apply to

217 SERBIAN CONST ., art. 95 (2006).218 SERBIAN CONST ., art. 95 (2006).219 SERBIAN CONST ., art. 95 (2006).220 See CROATIAN CONST ., art. 53 (1990); see also CROATIAN CONST ., art 53 (1990) (2001 version).221 SERBIAN CONST ., art. 95 (2006).222 European Commission, Serbia 2012 Progress Report , 60 (2012).223 European Commission, Serbia 2012 Progress Report , 56 (2012).


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become a member of the Union. 224 The Copenhagen Criteria provides uniformstandards by which states may become members. Meeting these criteria typicallyrequires a number of institutional changes, including constitutional reform. TheEU reviews the applications of candidate states on a case-by-case basis, assessing

both the constitutional and administrative framework to support the state inmeeting its Community obligations. Candidate states generally adoptconstitutional amendments that allow the state to delegate sovereignty to theEuropean Union, give primacy to European Community Law, extend voting rightsto non-citizens, and reaffirm the independence of the judiciary.

224 C lid d V i f h T f h E U i t 6(1) 49 (2003)

constitutional reforms for european union accession

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