Sjoerd Nugteren S1663399
Mr. Floris Mansvelt Beck Bachelorproject 1
8398 words
I told you so? Reassessing the debate on the 2004 EU-enlargement round from a federalist perspective
The current situation in the Central and Eastern Europe member states of the European Union is one that challenges future effective policy-making and the future of the organisation itself. In these post-communist countries, a paradigm of ‘illiberal democracy’ has thrived since the arrival of national conservative parties in national parliaments and executive branches (Bremmer, 2018). Especially in Poland and Hungary, executives and citizens increasingly regard liberal values and democratic norms as false and wrong. These liberal rules and values are being rejected in both EU-member states, while they can be regarded as of the foundations of the EU as an organisation (Schutgens & de Putter, 2018). The EU has reacted towards the situation by putting the Polish government under investigation from the Commission under the ‘rule of law’ monitoring mechanism that was created with the intent of addressing systematic breaches of the rule of law and EU principles in member states (Szczerbiak, 2016). The Hungarian government has not yet been put under investigation, but the EU is still trying to make Viktor Orbán, the current prime-minister of Hungary, change the path he has put Hungary on. Judith Sargentini was tasked by the European Parliament to write a report on the situation in Hungary. On the 13th of April, she recommended to start an Article 7 procedure that would economically
sanction Hungary and would invoke its voting rights in the European Council temporarily (Termote, 2018). To really start such a procedure, a two-third majority is needed in the European Parliament. This could prove to be tricky, considering the fact that Orbán’s Fidesz party is a member of the biggest party group in the European Parliament, the European People’s Party.
The current problems in both Poland and Hungary are not surprising if you look at them through the lens of normative theory on federalism. The crisis can be recognised as a conflict of different cultures and values. Poland and Hungary do not feel like they are part of the liberal community of the EU and do not want to be a part of it either. There is a lack of a common identity, especially when comparing Western Europe with Central and Eastern Europe. The presupposition of a certain degree of
homogeneity among members of a federal construction in order for the federation to be durable has been explored and described by different political philosophers and theorists (e.g. Montesquieu, 2005; Kant, 2005; Seitzer, 2008). Therefore, the question can be raised whether the current problems could have been foreseen as they are the results of a lack of a common identity or a sufficient degree of
homogeneity between participants in a federal construct. To answer this question, the debate that was held at the time of the enlargement round of 2004 will be revisited in this thesis. Analysis of this debate will be done in light of federalist normative theory concerning the necessity of a shared identity or certain degree of homogeneity for durable and stable federalist constructs.
The federal nature of the EU as an institution has been under discussion. Some scholars regard it as a ‘sui-generis’ political system that is unique and one of a kind, while others regard the Union as just another federation (Kelemen, 2003, p.184). Advocates of this approach may disregard important normative presuppositions for durable and stable federations while discussing the potential challenges of the enlargement round. They could have simply not regarded the EU as a federation and could have turned their back on normative theory of federalism. As Kelemen (2003, p.185) put out, those
rejecting the idea of analysing the EU from a comparative federalism perspective are missing out on insights that only an analysis of that nature can bring.
In the Netherlands, the most comprehensive analysis of the upcoming enlargement round was carried out by the Scientific Council for Government Policy (WRR) in 2001. This report gives us the
opportunity to compare the current problems and the nature of those problems to the potential issues that were foreseen around the time of enlargement. The focus will be primarily on the extent to which the points made by the WRR are grounded in federal considerations and especially on the extent to which the report paid attention to the potential problems that could arise as a result of a lack of a common identity among the existing members of the EU and the joining members. Other EU scholars discussed the shortcomings and challenges of the enlargement round, so their work will be addressed shortly as well. Next to determining to what extent both the WRR and EU scholars acknowledged the risk of the enlargement round because of a lack of common identity, it is important as well to pay attention towards recommendations made by them on how the EU was supposed to overcome this problematic diversity.
In this paper, the current problems in Hungary and Poland will be outlined first, after which attention will be turned towards normative theory on federalism in order to illustrate why the current problems and the nature of those problems are not surprising and could or even should have been expected. Thirdly, analysis of the report by the WRR and other EU scholars will be done in order to be able to answer the question to what extent the problems we experience nowadays as a result of a lack of a common identity were predicted by them. Lastly, a conclusion will be given in which the main points of this research will be repeated.
Federalism
Before we can talk about normative theories of federalism, it must be clear wat federalism actually entails. Therefore, the question what is federalism, will be addressed first. After it has been made clear what the notion of federalism entails, the issue of federalism inside the EU will briefly be addressed.
What is federalism? Karmis and Norman explain the notion of federalism by stating that ‘in its most general sense, federalism is an arrangement in which two or more self-governing communities share the same political space’ (Karmis & Norman, 2005, p.3). This arrangement is institutionalised, so in that way, public authority is divided between different levels of government. Each level of government has issues on which it takes final decisions and a high federal court adjudicates disputes concerning federalism (Kelemen, 2003, p.185). Federalism is essentially about self-rule plus self-share. (Elazar, 1987, p.12).
A substantial part of the EU meets this definition of federalism, as power is divided and shared between the Union, the member states and the local government. That notion of power-sharing is especially applied in the directly elected European Parliament and the European Council which consists of member states’ political leaders. Furthermore, the European Court of Justice adjudicates conflicts between EU-institutions and member states. The WRR put emphasis on these federal
elements of the EU as well and made clear that it regards the EU as a federation (WRR, 2001, p.39).
The Enlargement round of 2004
In 2002, the leaders of the existing EU member states decided that ten countries could join the EU. A substantial part of that group was made up of post-communist states who had been under the control of the totalitarian regime of the Soviet Union during the Cold War. In 2004, Cyprus, the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Slovakia and Slovenia joined the EU.
Furthermore, two other Eastern European countries, Romania and Bulgaria, joined three years later in 2007 (Nugent, 2004, p.1).
Euroscepticism in Hungary and Poland
The current situation in Central and Eastern Europe is one that is quite different from the one in the years around the enlargement round of 2004. After gaining independence in 1989, most
post-communist countries in Central and Eastern Europe openly expressed their wish to join the EU. They showed their willingness to adapt their political institutions and adopt different economic principles in order to become closer to Western Europe. They wanted to (re)-integrate into the European world and to get access to the European market, from which they were cut off during the Cold War (Nugent, 2004, p.35). In April 2003, an accession treaty with 8 countries from Central and Eastern Europe was signed, after these countries met the conditions of accession set out by the EU ten years earlier.
This gap of ten years between applying and joining shows that the joining countries showed
willingness to make the accession happen, as they had to make many more changes to domestic laws, structures and practices than previous applicants. By comparison, it took Spain and Portugal ten years as well to make the transition from wanting to join to actually being able to join, while they had much less to change domestically (Nugent, 2004, p.42). Next to the willingness showed by the political elites in the joining countries, the electorates in those countries showed that they supported the decision of their governments by voting for ratification of the accession treaties in national referendums (Nugent, 2004, p.37).
If we look at the current situation in Central and Eastern Europe, this willingness to cooperate with EU policies has decreased to a level that may threaten the authority of the EU and its decision-making. This is especially the case in Hungary and Poland, where Euroscepticism has grown in the last five years. Furthermore, governments in both countries have been accused of undermining the rule of law, democracy and fundamental rights (Erlanger & Santo, 2018; Termote, 2018). In Hungary, the
nationalistic and conservative Fidesz has changed the electoral laws to its favour, creating legislative districts that are heavily gerrymandered and favourable to Fidesz (Puddington, 2017, p.36). These new legislative districts contribute to a decisive long-term stay and a strong position in the Hungarian government. Furthermore, the parliament has passed a law with the goal of closing the Central European University, thus attacking the academic freedom (de Voogt, 2017). In the eyes of the party, the university is promoting a wrong liberal interpretation of the world that presents liberal values as universal and wants to promote the values of an open society (Schutgens & de Putter, 2018). The government has also taken control of the Constitutional Court by making the Court grow in size, appointing judges who are supportive of the government and changing the voting rules in order to make sure that the Fidesz-associated judges became a majority in the Court (Puddington, 2017, p.36). Control over public opinion has also been seized by Fidesz, as 90% of the media that is concerned with issues of civic life and politics is in hands of owners that are directly or indirectly linked to the Fidesz party or its coalition partner, the KDNP (Vásárhelyi, 2017). Since the entrance of Fidesz in the government with a supermajority in 2010, the Freedom of Press Index provided by Reporters Without Borders has been in serious decline. The barometer of 2018 showed that Hungary now ranks amongst the lowest scores from members of the EU with a ranking of 73 (RSF, 2018), while they were in top 25 before 2010 (RSF, 2010), when the supermajority of Fidesz made its entrance in the Hungarian government.
The situation in Poland is much like that in Hungary, as the Polish government is also run by a nationalistic conservative party, the Law and Justice party (PiS). Since PiS got a majority in seats in 2015, the party has changed laws in order to take control over the judiciary system and the media.
The party passed a law in 2016 that allows it to appoint the heads of public TV and radio, after which the media has turned into a propaganda machine in favour of the government party (John, 2017). Similar to Hungary, the freedom of press index has been in decline since the entrance of PiS in the Polish government in 2015. The RSF-indexes of 2015 and 2016 show that Poland fell from a 18th place in 2015 to a 47th place in 2016 (RSF, 2015; RSF, 2016).
To control the judiciary system, PiS has passed a bill that dismissed all of the members of the Supreme Court and put the Polish president, a member of PiS, in the position to appoint the new judges of the Supreme Court (John, 2017). The newly appointed judges are all known to be loyalists of the
government. PiS has also weakened the Constitutional Court by appointing a considerable part of the total amount of judges in the court (John, 2017). Next to that, PiS also weakened the Constitutional Court by passing a law that states that a two-third majority is needed to make decisions in comparison to the simple majority in the previous case, making sure that their loyalists have more control over the jurisprudence of the Court (John, 2017). The job of the Constitutional Court is to assess whether new laws or amendments to existing laws are in violation of the Polish Constitution. Controlling a big part of this Court enables PiS to change the political system even further and more easily.
These developments in both Hungary and Poland prove that national governments in both countries are changing the state form of their nations in to a more autocratic form of democracy in which they control almost all elements of politics and society. They are shifting towards a state form of illiberal democracy. As Puddington (2017, p.36) states, the reform efforts of Fidesz and PiS are concerned ‘with the creation of a system in which the institutions of pluralism are hollowed out and the ruling party’s dominance is assured over the long term’. Fidesz and PiS go against liberal values and
democratic norms like the freedom of speech, freedom of press, academic freedom, judiciary freedom and pluralism. With the state form of illiberal democracy, democracy is used to break down liberal values and democratic norms, and ultimately freedom. The pillars of democracy are separated from freedom. Democracy and freedom were always seen as a combination in which one strengthens the other, but in the case of Poland and Hungary, it is the other way around (Schutgens & de Putter, 2018).
Both the Hungarian Fidesz party and Polish Law and Justice party have made clear that they reject the liberal perspective of the Western Community and the EU and the corresponding values that present themselves as universal (Schutgens & De Putter, 2019). Along with the emergence of nationalism in Eastern Europe, tradition and culture are getting the overhand compared to universal values. Liberal values and democratic norms are not important anymore to society, the focus of people and politics has shifted towards strong leaders who want to control everything: media, jurisprudence and education (Schutgens & de Putter, 2018). By starting the path towards a state form of illiberal democracy, both Hungary and Poland are opposing themselves to the EU and the values and norms that can be associated with the organisation. They do not feel a part of that community and do not want to be a
part of it either (Schutgens & de Putter, 2018). This growing conflict between the existing Western members of the EU and the new members from Central and Eastern Europe is now the main threat to the cohesion and survival of the EU (Erlanger & Santora, 2018). The durability of the EU is at stake, as the likelihood of fragmentation of the Union is rising as a result of the shift in Central and Eastern Europe (Kelemen, 2007).
Federal durability and explosion
All federal systems face two dilemmas: federal overreach and state shirking (Kelemen, 2007, p.53). In the process of federal overreach, federal governments expand their authority over states and usurp authorities on issues that were reserved for those states. If federal overreach is taken to the extreme, the federation could transform into a unitary state in which state governments have little to no
authority (Kelemen, 2007, p.53). State shirking on the other hand is concerned with state governments not complying with federal law. If this is taken to the extreme, the federal system could collapse with state governments splitting apart (Kelemen, 2007, p.53). In order to be durable, a federal institution needs to provide a division of authority that is rigid enough, so that one level of government is not able to usurp the authority of the other level, while remaining flexible to the point that it can allow shifts in authority in response to economic, technological, sociocultural and political developments (Nicolaïdis, 2001). If a federation fails to provide this, the danger of ‘explosion’ becomes imminent. Explosion is concerned with forces and paradigms that undermine the authority of the federal government, leading to possible fragmentations of the federal construct (Kelemen, 2007, 54). The current situation in Central and Eastern Europe can be regarded as a case of explosion. The tensions may not lead to a total collapse of the EU or an exit of either one of the countries, but there is much evidence that shows a certain degree of denial of fundamental values of the Union. Thus, authority of the EU is undermined, as fundamental values of the Union are part of the acquis communautaire which needs to be embraced and implemented by member states.
Federations try to be durable by providing federal safeguards. Different kinds of federal safeguards can be distinguished: structural safeguards, judicial safeguards, partisan safeguards and sociocultural safeguards (Kelemen, 2007, p.55). Structural safeguards entail participation of state governments in federal policymaking and are primarily focused on the prevention of federal overreach. In the EU, structural safeguards are strong as the governments of member states are directly represented in the Council of Ministers. They also appoint the President of the European Commission and justices of the European Court of Justice (Kelemen, 2007, p.56). Judicial safeguards are concerned with federal courts that monitor the division of authority and enforce compliance with federal law by state governments. The EU has a powerful supreme court in the form of the ECJ that can be aggressive in enforcing compliance with federal law because of the fragmented nature of the EU (Kelemen, 2007, pp.56-57). Partisan safeguards protect federal durability and stability through the effect of party
systems on the incentives of state and federal politicians. In the EU, party groups in the European Parliament can potentially condemn anti-EU developments on the national level. These party groups can neutralise anti-EU effects that come from the national level. A shift of authority from the national level to the EU-level has had a positive effect on the power of these party groups and their ability to have influence over national party groups (Kelemen, 2007, pp.58-59). Lastly, sociocultural safeguards are the most relevant to the current situation in Central and Eastern Europe. As Kelemen (2007, p.59) argues, ‘the sociocultural approach to federal durability suggests that the stability of federal
institutions must be grounded in a shared sense of identity and political culture of federalism’. A culture of federalism is important in order for a federal institute to survive. EU scholars have conceptualized this culture of federalism differently, with some viewing it in terms of a common identity (Riker, 1964; Elazar, 1987, Stepan, 2001).
The situation in Hungary and Poland can be regarded as a looming failure of sociocultural safeguards as governments from both countries have put a great emphasis on issues of identity and values.
Hungary and Poland do not feel like they are part of the same community as member states in Western Europe and do not want to be part of this group. They reject the way the Western community looks at the rest of the world and want to spread their liberal values to other parts of the world, especially Central and Eastern Europe (Schutgens & de Putter, 2018).
The possible consequences of limited explosion as the result of a failure of sociocultural safeguards are atrophy and limited secession, of which limited secession is the least imaginable scenario. Hungary and Poland are both big receivers of EU funds and leaders from the two countries have, despite their criticism of EU values and policies towards migrants, expressed their wish to stay in the EU. Viktor Orbán of Fidesz even stated that he wishes to strengthen the Christian roots of Europe and influence its future (Bayer, 2018).
A scenario in which atrophy emerges is more likely, as there is already evidence of this happening in Poland and Hungary. In this scenario, the EU would continue to exist as an organisation, but would be increasingly ignored by government states (Kelemen, 2007, p.63). This would likely happen in combination with a growth of ‘Variable Geometry’, in order to prevent atrophy from happening. Variable Geometry is concerned with allowing some states greater autonomy in policymaking (Kelemen, 2007, p.64). Granting Poland and Hungary more autonomy could solve tensions between the EU and the two member states. If the two countries were to be allowed to continue to steer away from fundamental values and democratic norms of the EU, they would be less likely to hinder an effective EU policy cycle.
But, the solution of Variable Geometry comes with a disadvantage, as it does not tackle the problem at its core. Tensions between the EU and Hungary and Poland may decrease in the short-run, but in the
long-run, the core problem of insufficient homogeneity between the Western member states and Eastern member states would still exist.
Montesquieu, Kant and Schmitt: homogeneity in federations
The importance of a certain degree of similarity or homogeneity between political entities that are participants in a federal arrangement was first described by Montesquieu in his Spirit of the Laws. His focus was mainly on the presupposition concerning the types of government and the nature of
participating states in a confederation1.
Montesquieu offered insights into the question of the best institutional design of a confederation, stating that it could combine the advantages of small and large states simultaneously (Montesquieu, 2005, p.56). The most important element of a confederate government is that it ‘ought to be composed of states of the same nature, especially of the republican kind’ (Montesquieu, 2005, p.56).
Montesquieu made a clear distinction between two kinds of states; republics and monarchies. He stated that ‘the spirit of monarchy is war and enlargement of dominion; peace and moderation are the spirit of a republic’ (Montesquieu, 2005, p.56). What we can take from this is that any opposing types of state principles cannot exist together in a federalist construct (Schmitt, 2008, p.393).
Immanuel Kant elaborated on this presupposition by stating that a federation composed of states with a republican constitution could bring perpetual peace (Kant, 2005). He stated that
‘When the consent of the citizens of a state is required in order to decide whether there shall be a war or not, nothing is more natural than that they will be very hesitant to begin such a bad game, since they would have to decide to take upon themselves all the hardships of war’ (Kant, 2005, p.87).
The presupposition of a certain degree of homogeneity or common identity among the participating political entities in a federalist construct was extended by the German political philosopher and constitutional theorist Carl Schmitt in Verfassungslehre, written in 1928. Schmitt wrote extensively about constitutional theory, devoting one part of his work on a constitutional theory for federations (Schmitt, 2008). While the focus of Montesquieu and Kant was primarily on the state form of participating political entities in a federal construct, Schmitt took the presupposition of homogeneity
1
Montesquieu wrote his Spirit of the Laws in 1748 when the distinction between federations and confederations had not been made yet. This happened as a result of the American Constitution in 1878. Before that, federation and confederation were used as synonyms (Karmis & Norman, 2005, p.6).
and a common identity to another, more radical level. He argued that ‘every federation rests on an essential presupposition, specifically of homogeneity of all federation members that ensures that the extreme case of conflict does not emerge within the federation’ (Schmitt, 2008, p.392). That
homogeneity can be present in various types. There can be national, religious, cultural, social, class, or another type of homogeneity (Schmitt, 2008, p.392). Schmitt added that although homogeneity resides mostly in national similarity of the population, the similarity of the political principle can be seen as a further element of homogeneity (Schmitt, 2008, pp. 392-393).
Taking this presupposition into account when looking at the current problems in Central and Eastern Europe and especially Hungary and Poland, they do not come as a surprise. Both countries do not regard themselves as a part of Western Europe and not regard the norms and values that are part of the Western European community as just. They regard their view of the world around them as just and right and as equally important as the view of Western Europe and the EU (Schutgens & de Putter, 2018). All of this can be regarded as a result of a lack of a common identity, that has its roots in different political histories, traditions, identities, religions, values and norms.
Looking at this particular element of normative theory of federalism and the nature of the current problems in Hungary and Poland, you expect to find certain warnings that were made around the time of enlargement towards those countries. It may even be a case of ‘common sense’ when regarding the big cultural differences between the existing members and joining members at the time of
enlargement. A big part of attention to the issue of homogeneity was given by the WRR in a report, published in 2001.
WRR Report
In the upcoming section of this thesis, different parts of the report by the WRR will be highlighted. Focus will be mainly on the goal of the report, potential issues and challenges of the enlargement round that were acknowledged in the report and potential solutions to those issues and challenges. These specific aspects of the report will be highlighted in order to determine to what extent the report paid attention to the issues of homogeneity and common identity.
The Scientific Council for Government policy (WRR, 2001, p.9) published a report with the goal of answering the question as how the process of accession could be organised in way that would preserve the achievements of the EU at that point in time. Opportunities and risks of the enlargement round were identified, especially for important policies (WRR, 2001, p.9). Next to the identification of opportunities and risks for policies, the transformation that the candidate countries needed to undergo was examined. This transformation-process was related to five dimensions: civil society, democracy, the rule of law, governance and the economy.
The WRR-report also points to the fact that there were fears that the enlargement would result in the weakening of core achievements and decision-making capacity of the EU as a result of a large number of diverse member states. It was acknowledged that the enlargement round of 2004 was different from any other enlargement round because this round was the biggest yet and posed more of a challenge towards the EU than any enlargement round that had happened before (WRR, 2001, p.20). The enlargement round that comes closest to the enlargement round of 2004 is the one that acceded Spain, Portugal and Greece into the EU, as these countries have a history of authoritarian regimes as well. However, these regimes did not have a grip on society that is comparable to the grip of the totalitarian states in Central and Eastern Europe. The legacies of the totalitarian regime that are present in the Central and Eastern European states affect democracy and the rule of law in those countries in a much bigger way (WRR, 2001, p.20).
Essence of the European Union
The report by the WRR (2001, p.31) acknowledged the growing diversity that would come along with the enlargement round, pointing out advantages and challenges of that growing diversity. In order to determine at what point this diversity becomes problematic for the functioning of the EU, a vision concerning the essence of the Union must be explored, according to the report. This vision is also needed for evaluating possible solutions for the problems that are found. The EU can be seen as a community of values in the first place, as article 6 of the Treaty of Amsterdam states that ‘The Union is founded on the principles of liberty, democracy, respect for human rights and fundamental
freedoms, and the rule of law, principles which are common to the Member States.’
(
Treaty of Amsterdam, 1997, p.8). Secondly, the EU can also be seen as a community of action, as it is engaged in achieving concrete goals (WRR, 2001, p.36). Thus the European Union is ‘an institutional structure with federal characteristics based on fundamental values which is pragmatically organised towards achieving a common goal’ (WRR, 2001, p.42).The approach of regarding the EU as a community of values and action implies that member states commit themselves to fundamental principles, norms and rules that determine the functioning of the Union. In that way, the willingness and capacity to adopt this regime become the key prerequisite for accession of new member states (WRR, 2001, p.39). This results in specific conditions set out for candidate states who wish to become member of the Union, which are set out to preserve the achievements of the community of values and action. At the Copenhagen summit in 1993, the European leaders laid down these conditions for the candidate countries of the 2004 enlargement round (Nugent, 2004, p.35):
‘Membership requires that the candidate country has achieved stability of institutions guaranteeing democracy, the rule of law, human rights and respect for and protection of minorities, the existence of a functioning market economy as well as the capacity to cope with competitive pressure and market forces within the Union. Membership presupposes the candidate’s ability to take on the obligations of membership including adherence to the aims of political, economic and monetary union’ (European Council, 1993, p.13).
The presupposition of a certain degree of homogeneity and common identity can be found in different constitutions of current federations and other federal institutions, often as a guarantee of homogeneity. This guarantee usually involves the state form. The American constitution for example contains a guarantee for a republican state form (Seitzer, 2008, p.393). Similarly, the accession conditions for EU-candidate states can be regarded as a guarantee of homogeneity, as they are created with the goal of preserving the achievements of the EU as a community of values and action. The focus is on the process in which the candidate states are expected to embrace and incorporate fundamental values and norms of the Union, as the Union is founded on them.
Problematic diversity
The WRR (2001, p.42) states that divergent characteristics or standpoints of member states can be problematic if they are in conflict with the fundamental principles of the Union or prevent member states from participating adequately in EU-policies. That is why the EU has the authority to impose sanctions on member states that don’t comply with fundamental values, like the Article 7 procedure that was mentioned above (WRR, 2001, p.42). Diverse characteristics can have impact on all stages of the policy cycle of the Union, namely in the areas of accession, preservation of the acquis
communautaire and post-accession decision-making. As the subject of this thesis is the 2004 enlargement round, I am mainly interested in the potential impact of divergent characteristics of member states on the context of accession and preservation of the acquis communautaire after accession has ended.
The requirement that candidate states embrace and implement fundamental values of the Union concerns both the adaptation of the acquis communautaire and the ability of the legal, political and administrative culture to do just that. According to the report, the cultural context of acceding countries matters as it is concerned with values, attitudes and deeply-routed behavioural patterns and affects the proper operation of the fundamental values of the Union in practice. This means that specific requirements are needed concerning the capacity and culture of candidate member states in different fields of policy in order to be able to implement fundamental values of the Union, namely: civil society, democracy, the rule of law, governance and economy (WRR, 2001, pp.44-45).
Solutions to the problematic diversity
It is clear the the WRR paid substantial attention towards potential problems of the enlargement round of 2004 as a result of cultural differences between the existing member states and new member states. The report puts out first the essence of the EU and then determines the point at which cultural
diversity becomes problematic. Thus, the presupposition of homogeneous culture was clearly not overlooked by the WRR. Question remains, what possible solutions were outlined by the report?
Four approaches towards solutions for the problematic diversity were distinguished in the report, namely suppression, reduction, buying off and accommodation (WRR, 2001, p.221). By suppressing the diversity, characteristics of member states that conflict with the acquis communautaire will be dealt with before the accession. States that wish to join but do not want to adapt to the values and norms that are vital to the acquis. The acquis is non-negotiable, leaving the candidate member states with a take it- or leave it-situation; they are welcome to join the EU if they are willing to adopt the rules of the EU. There are some limits to this approach, as the full scale of the problems in a candidate member state often only become clear after accession. This gives the candidate member state a better negotiation position compared to a situation in which the state is not a member of the Union and its wishes can be ignored much more easily. Considering the goal of preserving the achievements of the EU as a community of values and action, the option of suppression provides the best protection against erosion of the acquis and the EU’s fundamental values (WRR, 2001, p.223).
Secondly, diminishing the diversity entails dealing with the problematic diversity at its source. Gradual reduction of of diversity is important, as not all problems can be solved by imposing rules. There are three ways in which gradual reduction can be accomplished: convergence through market forces, convergence through financial transfers and convergence through learning processes (WRR, 2001, p.234). The WRR states that the process of diminishing generates more sustainable results, as the diversity problem is dealt with at its core. This is a process that takes time however (2001, p.236). Thirdly, buying off diversity is concerned with removing the diversity from the agenda in exchange for unconditional transfers. This option is not used often and usually involves buying off a candidate member state or a current member state. A candidate state that demands certain benefits when negotiating membership can be persuaded to drop the demands in exchange for membership with often getting promised that the issue will be brought up once the state is a full member. Another option is granting a current member state certain benefits when it objects to the accession of a candidate member state. However, the tactic of buying off diversity does not tackle the problem at its source and damages the good relations and solidarity within the Union (WRR, 2001, pp.236-237).
Lastly, accommodation seeks to formally recognise the diversity in the form of special treatment. According to the WRR, this approach was likely to play a big role in the 2004 eastern enlargement round by differentiating rights and obligations of current members or redefining the level of intervention (WRR, 2001, p.238). Accommodation entails giving temporary exceptions during
transition periods. According to the WRR, these transition periods could have been of value, as it would have allowed the Central and Eastern European countries to become firmly attached to the EU. But the WRR (2001, p.240) argues that transition periods can better be granted in relation to a core acquis test. Implementing a core acquis test would entail that regarding the implementation of elements of the acquis communautaire that could create problems, the Union draws a distinction between elements that are vital for the functioning of the EU as a community of values and action and elements that can be implemented according to a process over a longer period of time (WRR, 2001, p.240).
The report by the WRR acknowledges the problems that the enlargement round could bring as a result of an increased diversity and the absence of a common identity. Increased diversity becomes a
problem if it is in conflict with fundamental principles of the EU or if it obstructs member states from participating effectively in EU-policies, as the Union can be regarded as a community of values and action that is based on fundamental values and is organised in a way that enables it to achieve a common goal. The willingness and capacity to adopt these fundamental values of the Union should be the key prerequisite for accession of new member states. To increase this capacity of the candidate member states, a transformation should be made in the fields of civil society, democracy, the rule of law, governance and economy (WRR, 2001). The WRR (2001) sets out recommendations on how this transition in different dimensions should take affect with regard for the past legacies of the totalitarian regime and communism in Central and Eastern Europe. The report notes that huge progress had been made in the areas of democracy and economy, while the areas of civil society, governance and the rule of law stayed behind at that point in time. As a result of the progress in the areas of democracy and economy, the candidate member states had made progress in the implementation of the acquis and the embracing of the fundamental values of the Union, diminishing the legacies of the totalitarian regimes in those countries.
As mentioned above, the presupposition of homogeneity evidently plays an important role in the report by the WRR. The point at which the increased diversity of the EU becomes a problem for the Union as a community of values and action is identified. Furthermore, solutions for this diversity problem are explored and evaluated and recommendations are given as to how the EU should reach convergence between the existing members and candidate member states. It is noted that the situation at that time was relatively positive regarding the legacies of the communist past in the candidate member states of Central and Eastern Europe.
Other EU scholars
Next to the report by the WRR, the issue of a homogeneity and a common identity was discussed by other EU scholars as well, as it was feared that the enlargement round would limit the probability of creating a European identity. Fuchs and Klingemann (2002, p.20) stated three reasons why eastern enlargement was likely to make this process even more difficult than it already was at that moment. Firstly, the territorial limits of Europe are vague, especially to the east. Because there is no consensus on where Europe exactly ends, there is no defined territory. This makes it harder to create an ‘us’ that can distinguish itself from ‘others’ (Fuchs & Klingemann, 2002, p.20). The lack of a universal consensus on Europe’s territorial borders is connected to the fact that borders are social constructs of people (WRR, 2001, p.32). Second, enlarging the Union adds more nation states to the organisation, which increases the cultural plurality and diversity. And lastly Fuchs and Klingemann (2002, p.20) also identified that, next to this increased pluralisation, there is a cultural gap between Western Europe and Central and Eastern Europe. According to them, this gap is mainly the result of different
traditions, historical events and experience in societal systems that differed much from Western European states and societies during the Cold War. Fuchs and Klingemann (2002) clearly
acknowledged the legacies of communism in Central and Eastern Europe, the cultural gap between the existing members and candidate member states and how this could be a problem for creating a
common identity. Thus, Fuchs and Klingemann (2002) concur with the conclusions of the WRR-report.
A possibility for developing a European identity was pointed out by Fuchs and Klingemann (2002, p.20) as well. They stated that a project in which the plurality of national cultures would be homogenised is neither practicable nor useful. That is why focus should be turned towards finding common political values and behaviours, as these would be sufficient for developing a collective identity (Fuchs & Klingemann, 2002, p.20). Fuchs and Klingemann (2002, p.51) state that a
transformation of party systems to a democratic one was needed in the Central and Eastern European countries. They recognise these countries as socialist communities, while the existing member states of the EU are regarded as liberal communities. The potential for Europeans in Western, Central and Eastern Europe to consider themselves democrats and create a collective identity is considerable however. An enlargement round towards Belarus, Ukraine and Moldova would pose the most problems toward creating a collective European identity, as these countries cannot be considered as democratic communities (Fuchs & Klingemann, 2002, pp.51-52).
After conducting analysis of the report by the WRR, it is clear that the organisation paid a great amount of attention towards potential problems of the 2004 EU enlargement round. A big part of their report regards the potential problems that could emerge as a result of a lack of cultural homogeneity between the existing members and joining members of the EU.
This attention for an increased cultural diversity after the joining of new post-communist member states to the EU illustrates that the arguments of the report surrounding possible problems were grounded in federal theory. According to the report, the increased diversity becomes problematic if it is in violation of fundamental values of the EU and it prevents EU members from participating actively in the policy cycle. These potential problems as a result of a lack of a common identity were acknowledged by Fuchs and Klingemann (2002) as well. They stated that the enlargement round of 2004 would make the creation of a common identity amongst members of the EU more difficult. Both the WRR and Fuchs and Klingemann pointed out that there is a considerable possibility of overcoming the cultural differences between the existing members and joining members of the EU. This development will enable to create a common identity that would not endanger fundamental values of the EU or prevent EU-member states from participating actively in the policy cycle. The report by the WRR particularly mentions different possible solutions to the problematic diversity in order to make this happen, namely suppression, reduction, buying off and accommodation (WRR, 2001, p.221). Of these four possible options, accommodation was put forward by the WRR as a process that could have the biggest positive impact on the eastern enlargement round and containment of the problematic diversity that came with it. The report states that granting transition periods to the joining states in which they need to transform their society and political climate according to
fundamental values of the EU. These transition periods should be combined with a core acquis test which makes a distinction between fundamental values of the acquis communautaire that should be implanted right away and other values that can be implemented over a longer period of time.
Conclusion
The current situation in Central and Eastern Europe is one that could endanger the future and cohesion of the EU as an organisation. The national governments in Hungary and Poland have been rejecting fundamental liberal values and democratic norms that are central to the EU. The leaders of both countries have made clear that they do not feel part of the EU. They do feel that their own look on the world around them which is pivoted around traditions and strong leaders and is important. They regard their own view as just as right as the liberal view in Europe. Poland’s president Morawiecki even expressed the wish to influence more countries around Poland and Hungary, going against the
dominant view of liberal Western Europe (Bayer, 2018). The state forms of Hungary and Poland have been shifting towards illiberal democracies which reject the freedom of press, the judiciary freedom, the academic freedom, pluralism. Fidesz and PiS are shaping the political landscape to one that is supportive of their plan to assure their dominance in the Hungarian and Polish government permanently.
The situation in Hungary and Poland can be regarded as a limited explosion of the EU as a federal state. Explosion is concerned with forces and paradigms that undermine the authority of the federal government, leading to possible fragmentations of the federal construct (Kelemen, 2007, 54).
The authority of the EU and especially the European Commission is not fully compromised by the developments in both Hungary and Poland, but the first signs of fragmentation are visible. One can regard the current situation in both countries as the result of a lack of a common identity and a certain degree of homogeneity between members of the EU at the time of enlargement.
The developments in Hungary and Poland are not surprising if you look at them through the lens of normative theory on federalism. A presupposition of a certain degree of homogeneity or common identity between participating states of a federal institution is one that has been developed by different political philosophers and theorists. In order to determine whether the current problems in Hungary and Poland were predicted by those discussing the enlargement round of 2004, the arguments of both the WRR (2001) and Fuchs and Klingemann (2002) were analysed. The extent to which these scholars acknowledged the lacking homogeneity between the existing members and joining members at that time is especially important, as that can be seen as one of the causes of the current problems in Hungary and Poland. That is why the debate around the enlargement round was re-assessed.
The re-assessment showed that the WRR (2001) and Fuchs and Klingemann (2002) acknowledged the potential problems that could come along with the enlargement as a result of a lacking common identity. Both pointed out that the enlargement round would come along with a growth in diversity. The point after which this diversity becomes a problem depends upon one’s view on the essence of the EU as an organisation. The WRR (2001) regards the union as a community of values and action as it based upon fundamental values and is organised in a certain way that it is able to pursue a common goal or objective. The approach of regarding the EU as a community of values and action implies that member states commit themselves to fundamental principles, norms, rules and procedures that determine the functioning of the Union. Thus, the willingness and capacity to adopt this regime become the key prerequisite for accession of new member states. Increased diversity becomes a problem if it is in conflict of fundamental values of the union or prevents a member state from participating in the policy cycle of the EU. Adapting to and implementing the acquis communautaire was vital for the accession process during the enlargement round, resulting in a recommendation for a much needed transition of civil society, democracy, the rule of law, governance and economy in the candidate states.
To overcome the problematic diversity, four solutions were proposed by the WRR, namely suppression, diminishing, buying off and accommodation. Of these solutions accommodation was seen as the most favourable option, as it would give the candidate member states the time to adjust to the fundamental values and institutions of the EU.
The issues and challenges of the enlargement round that were acknowledged both the WRR and other EU scholars are grounded in federal considerations. The presupposition of homogeneity and a
common identity between members of a federal institute was acknowledged, as potential problems of a cultural gap were analysed. Both the WRR and other EU scholars proposed a variety of solutions to this problematic diversity. The enlargement round and potential problems that would come along with it were not underestimated by the WRR, as it acknowledged the rarity of the enlargement round. It notes that the round was the biggest yet and would pose the biggest challenges and problems to the EU (WRR, 2001, p.20).
These potential problems were treated as problems of federalism, as the WRR did not regard the EU as a sui-generis political system that cannot be compared with other organisations. The report by the WRR clearly states that it regards the EU as an organisation with several federal elements and not as a unique kind of organisation that is not applicable to federal theory.
This thesis tried to illustrate to what extent those debating the enlargement round of 2004 made arguments that were grounded in normative theories of federalism. The EU was regarded as a
federation in order to apply normative theories of federalism to the organisation and the developments of the enlargement round of 2004. As mentioned above, the EU can also be regarded from a sui-generis approach that states that the organisation is unique in its own kind. Following that approach to the EU when analysing the enlargement round may result in different results. Other theories of the EU might become relevant and may hold some explanatory value. Although the normative theory of federalism that puts forward the presupposition of homogeneity illustrates what arguments made by EU scholars were grounded in normative theory of federalism, it does not explain why the current problems still happened. This is especially relevant because of the fact that the WRR made extensive arguments about the potential problems of the enlargement round and how to overcome these problems. A theory that is specifically applicable to the EU as a unique organisation may provide some answers.
At the point of enlargement, the attitude towards the enlargement round was relatively positive as analysis of the report (WRR, 2001) and the article of Fuchs and Klingemann (2002) shows. The credible possibility of creating a common identity was pointed out.
The obvious and relevant question that remains after this conclusion is how did it go wrong after establishing a good vision of potential problems and the creation of plans to overcome those problems. A possible answer may be that a common identity cannot be created and just is something that has to exist. This would make the enlargement round a plan that was destined to fail from the beginning and one that perhaps would not have happened. If that would have been the case, would I not have been in the position to say: I told you so?
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