Author: Anes Makul, Association Alumni of the Centre for Interdisciplinary Postgraduate Studies (ACIPS)
Bosnia and Herzegovina has a status of a potential candidate country for EU accession. This means that on the one hand the country is interested in joining the Union and on the other hand that there is interest on behalf of the Union in the country’s accession. The mutual interest in the country’s membership has also been formalized through the Stabilization and Association Agreement signed by Bosnia and Herzegovina and the EU. However, the agreement has not yet been ratified due to the failure to implement the Sejdić-Finci judgment. If the judgment were to be implemented, the application process for the EU could start moving forward.
The EU accession process is itself complicated and consists of various phases. Application for EU membership is the next phase awaiting Bosnia-Herzegovina after it completes the current one. The application itself is actually a letter sent by the head of state or government to the Council of EU stating that the country wishes to become a full member country of the EU and is ready to follow all of its goals. The legal framework for the accession of new member countries has been defined by Article 49 of the Treaty on European Union. The article states that any European country which respects and undertakes to promote the values laid down in Article 2 of the Treaty can apply for Union membership. The values in Article 2 which have, as the Article states, served as a founding block of the Union include upholding human dignity, freedom, democracy, equality, the rule of law and the protection of human rights, including rights of minorities.
The Council of EU then forwards the letter to the European Council, made up of heads of government and member countries of the EU to state their opinion. The European Commission is also required to produce an avis on the capability and preparedness of the applicant country to fulfill the EU membership criteria. Avis is done through a questionnaire and more than a thousand of inquiries sent to the applicant country and the process itself takes approximately a year, although it can last longer. The Commission’s opinion is based on the so called Copenhagen and Madrid criteria.
The Copenhagen criteria were laid down at the 1993 European Council summit in the capital of Denmark. They consist of three criteria that need to be upheld by every country wishing to join the Union. These are: the political criterion related to the rule of law, democracy, protecting human rights and the stability of institutions in the applicant country; the economic criterion, meaning the country must have a functioning market economy able to cope with competitive pressure; finally, a so called acquis communautaire, an obligation that the country adopts all of the EU legislation and includes it in its own legislation. When it comes to the issue of implementing legislation, the country does not have to have all of it implemented at the time of applying, but should actively work on doing so.
The Madrid criteria or the administrative criteria were laid down during the European Council summit in Madrid in 1995. The criteria emphasize the need of the applicant country to meet the requirements related to its administrative capacities.
If the country gets a positive opinion from the European Commission, the European Council decides on giving candidate status to the applicant country. The following step is to begin negotiating membership. The negotiations themselves are actually a process of aligning the country’s legislation with the legislation of the Union, and their beginning depends on the political decision of the European Council. Acquiring candidate status and beginning negotiations may last several years. An example of this is Macedonia which has been a candidate country for years but has still not opened negotiations due to the dispute with Greece over the name of the country, resulting in a stagnation of the accession process.
The negotiations are divided into several chapters related to, among other things, the free circulation of goods, free movement of workers, right to entrepreneurship, government procurement, intellectual property, competition policies, rural development, food safety and phytosanitary policies, tax policies, transportation, energy, the judicial system etc. In practice, this means that negotiations take place over certain chapters which are closed once the negotiations have been successfully completed and new ones are opened. In 2004, during the largest enlargement of the Union, countries had 32 negotiating chapters while Croatia, for example, had 35. Serbia will have the same number of chapters and it will first negotiate chapters on jurisdiction and corruption, even though the first chapter relates to the free circulation of goods.
Opening negotiations is followed by a so called screening which is an evaluation of the level of alignment between the legislation of the candidate country and the legislation of the Union. The evaluation is carried out for every chapter and usually lasts about a year.
After the successful completion of negotiations, the European Union Council makes a unanimous decision on the accession of the member country. In addition, the European Parliament also gives its “consent”. The “consent” involves a so called “special legislative procedure” in which the Parliament declares whether it is for or against the membership. The membership itself is preceded by signing the Association Agreement which states the date of accession and which has to be ratified by all national parliaments. Following the accession the country becomes a full member, although in some cases there are restrictions for the new member country for a certain period of time. These restrictions relate to the prohibition of free movement of workers from new member countries into old member countries and vice versa for up to 7 years in order to protect the labor market, that is to prevent potential workers from new member countries to disrupt the labor market of one of the members. This right has been used to protect member countries since 2004 when the largest enlargement to date sparked fears in the public of massive migrations from new into old member countries.
Two major issues remain to be solved if Bosnia and Herzegovina is to become a candidate country, i.e. file a “credible application” which has been talked about for years. The first one is implementing the Sejdić-Finci judgment, i.e. changing the Constitution of Bosnia-Herzegovina in order to allow members of non-constituent peoples to be elected into the Presidency of Bosnia-Herzegovina and the House of Peoples of the Parliamentary Assembly of Bosnia-Herzegovina, something that has not been solved for over four years. The issue is relevant to the relations with the EU due to Article 2 of the Stabilization and Association Agreement referring to the European Convention on Human Rights which the European Court for Human Rights in Strasbourg found to have been violated in the Sejdić-Finci case.
The second issue which the European Union wants Bosnia and Herzegovina to solve in order to become a candidate country involves establishing an effective coordination mechanism. In the current dysfunctional constitutional structure this mechanism would enable easier decision-making in the accession process between various levels of government, i.e. would ensure implementation of adopted laws.