The evolution of the political criteria for accession to the European Community, 1957–1973

• Published date: 01 January 2018
• DOI: http://doi.org/10.1111/eulj.12253
• Date: 01 January 2018
• Author: Ronald Janse

ORIGINAL MANUSCRIPT

The evolution of the political criteria for accession

to the European Community, 1957–1973

Ronald Janse*

Abstract

This article describes the evolutionof political conditions for accession to the European Community from 1957 to

1973 on thebasis of the responsesof the Community and nationalparliaments to applications for association(Article

238 EC Treaty) andmembership (Article 237 EC Treaty)and to a US foreign policy initiative.It challenges the thesis

that the EuropeanCommunity was originally uninterestedin the political natureof its members as long asthey were

non‐communistand that the Communitymade a volte face in 1962 in reaction to a requestfor an association agree-

ment by Franco's Spain. It argues that the Copenhagen political criteria, except minority protection, were firmly

establishedby 1973 after a seriesof pronouncementsand decisions by the EuropeanParliament, nationalparliaments

(both 1962),the Commission (1967) andthe Council (1973). The articleaims to contribute to the earlyhistory of the

constitutionalization ofthe Union and discusses howdemands from outsidersprompted the Six to define theconsti-

tutional requirements for (candidate) members.It is partly based on new archivalresearch.

1|INTRODUCTION

A country which aims to become a member of the European Union must respect democracy, the rule of law, human

rights and the other values listed in Article 2 TEU. This political condition of accession, now in Article 49 TEU, was intro-

duced into primary law in the 1997 Treaty of Amsterdam. The treaties which founded the European Communitiesonly

mentioned a geographical criterion. Articles 98 European Coal and Steel Community (ECSC), 237 European Economic

Community (EEC) and 205 Euratom stated that “any European State may apply to become a member of the Commu-

nity”(EEC and Euratom) or “accede to the present Treaty”(ECSC). Political accession criteria were not mentioned,

except, perhaps, in the Preamble to the Treaty of Rome (1957), which expresses the desire of the founders of the

EEC “to lay the foundations of an ever closer union among the peoples of Europe”; to pool “their resources to preserve

and strengthen peace and liberty”; and calls “upon the other peoples of Europe who share their ideal to join in their

efforts”. However, Article 237 did not establish a link between membership and the preambular reference to liberty.

Besides, liberty can be interpreted as a shorthand for democracy, human rights and the rule of law as well as for the

free movement of goods, services and labour. So when did the political accession criteria emerge?

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This is an open access article under the terms of the Creative Commons Attribution‐NonCommercial License, which permits use, dis-

tribution and reproduction in any medium, provided the original work is properly cited and is not used for commercial purposes.

© 2017 The Authors. European Law Journal Published by John Wiley & Sons Ltd

*

Associate Professor of Law, University of Amsterdam, Amsterdam, Netherlands. I am grateful for the abundance of knowledgeable

and constructive comments and suggestions by the reviewers/editor of this journal. I also thank Morten Rasmussen for sharing his

knowledge of the drafting history of the Treaties of Paris and Rome and for valuable suggestions. The usual disclaimer applies.

Received: 26 April 2016 Revised: 8 August 2017 Accepted: 23 August 2017

DOI: 10.1111/eulj.12253

Eur Law J. 2018;24:57–76. wileyonlinelibrary.com/journal/eulj 57

There are broadly two views on the evolution of the political conditions of accession. Article 21(1) TEU states that

the principles of democracy, human rights and rule of law have “inspired”the EU's “own creation, development and

enlargement”. Timmermans, the first Vice President of the Commission, recently said: “The rule of law is part of

Europe's DNA, it's part of where we come from and where we need to go. It makes us what we are.”

1

These official

statements find support in some recent as well as older academic literature.

2

De Búrca, for example, has argued that

the European Community was, from its inception, committed to the ideas on membership which had inspired the

Statute of the Council of Europe (1949) and in particular the draft treaty for a European Political Community

(1953).

3

Article 116(1) of this draft provided that “accession to the Community shall be open to the Member States

of the Council of Europe and to any other European State which guarantees the protection of human rights and

fundamental freedom”. The alternative view, most forcefully defended by Thomas, is that the EEC was originally a

functional organization established to promote the free market and trade.

4

It was not open to the communist states

of Central and Eastern Europe and the Western Balkans, and in that sense political conditions did apply, but other

than that all European countries were eligible to join as far as the character of their legal and political systems was

concerned, including Portugal and Spain, the two dictatorships which survived the Second World War.

5

The fact that

the Six could easily have retained the political conditions for membership of the draft 1953 EPC Treaty in the 1957

EEC Treaty, but did in fact choose the ambiguous preambular reference to liberty, suggests that the EEC Treaty

marked a “retreat from constitutionalization”in favour of a “functionalist and then a free‐market vision of European

integration”.

6

“The Six”, he writes, “simply did not share the membership norms that had come closest to realization

in the EPC treaty and did not want their membership choices to be constrained by such stringent criteria”.

7

According

toThomas, the origin of political conditions of membership lie in the “highly contested political process”in 1962 over

Spain's rapprochement with the Community which led to a “re‐conceptualization of the community's membership

norms”resulting in the principle that “only parliamentary democracies were eligible for membership”.

8

This article does not aim to establish what Article 237 and the preambular reference to liberty meant in 1957;

conclusive evidence is lacking and the arguments in favour of either interpretation have been eloquently and force-

fully defended by their proponents.

9

TheTreaty of Rome was formulated in exceptionally terse language; the drafters

1

FransT immermans, ‘The European Union and the rule of law’,keynote speech at conference on the rule of law, Tilburg University, 31

August 2015. Retrieved on 21 September 2017 from https://ec.europa.eu/commission/2014‐2019/timmermans/announcements/

european‐union‐and‐rule‐law‐keynote‐speech‐conference‐rule‐law‐tilburg‐university‐31‐august‐2015_en

2

G. de Búrca, ‘The road not taken: The EU as a global human rights actor’(2011) 105 American Journal of International Law, 649–693;

C. Hillion, ‘The Copenhagen Criteria and their Progeny’, in C. Hillion (ed.), EU Enlargement: A Legal Approach (Hart Publishers, 2004), 1–

22, at 4; H. Mosler, ‘Die Aufnahme in internationale Organisationen’(1958) 19 Zeitschrift für Ausländisches Öffentliches Recht und

Völkerrecht 275, 285–7(‘Obwohl der Text darüber schweigt, hat das Wort Europa in den Satzungen der Gemeinschaften und des

Europarats außer der geographischen Bedeutung auch einen politischen Unterton. Nur Staaten mit freiheitlich‐humanitärer

Gesellschaftsordnung im Sinne der europäischen Tradition sind als Mitglieder willkommen’.)

3

de Búrca, above, n. 2, 664–667.

4

D.C. Thomas, ‘Constitutionalization through enlargement: The contested origins of the EU's democratic identity’(2006) 13 Journal of

European Public Policy, 1190–1210; D.C. Thomas, ‘Beyond Identity: Membership Norms and Regional Organization’, (2017) 24 Euro-

pean Journal of International Relations, 217–240. See the overview of authors holding a similar position in A. Williams, EU Human

Rights Policies: A Study in Irony (Oxford University Press, 2004), 137–157.

5

Thomas, ‘Constitutionalization through enlargement’, above, n. 4; Thomas, ‘Beyond identity’, above, n. 4, at 223–228. See also K.

Hebel and T. Lenz, ‘The identity/policy nexus in European foreign policy’(2016) 23 Journal of European Public Policy, 473–490,

479–483.

6

Thomas, ‘Constitutionalization Through Enlargement’, above, n. 4, at 1190–91, 1193.

7

Thomas, ‘Beyond Identity’, above, n. 4, at 226.

8

Thomas, ‘Beyond Identity’, above, n. 4, at 227, 229, 233; and Thomas, ‘Constitutionalization Through Enlargement’, above, n. 4, at

1190.

9

There is no reference to political conditions of membership in the Messina Resolution adopted by the Foreign Ministers of the ECS C

Member States (Messina, 1–3 June 1955) or in the Rapport des Chefs de Délégation aux Ministres des Affaires Etrangères of 21 April

1956 (also known as the Spaak Report), which led to the drafting of the EC Treaty. The silence in other parts of the traveaux

préparatoires is noted in de Búrca, above, n. 2, 664.

58 JANSE