the eu accession negotiations _handbook

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Vasile Puşcaş EU ACCESSION NEGOTIATIONS (A Handbook)Publisher: Hulla & Co Human Dynamics KG, Lothringer Strasse 16, A-1030 Wien, Austria

Print: Vizartis ltd. 27 Miloja Zakica St, Belgrade, 11030 SerbiaAmount: 200

ISBN: 978-3-200-03068-8Copyright ©2013 Hulla & Co Human Dynamics KG, Lothringer Strasse 16, A-1030 Wien, Austria

About Regional Environmental Network for Accession (RENA)

The Regional Environmental Network for Accession (RENA), which started in 2010, aimed to provide the enlargement countries with a framework to establish, strengthen and improve their capacity to deal with the challenges of implementation. RENA has been very successful in fostering and facilitating dialogue at a regional level but additionally between the region and EU Member States.

Over the past three years, RENA has provided assistance in priority areas for the enlargement countries, including in the areas of legislative approximation, horizontal legislation, nature protection, water management, inspection and enforcement and climate change. Besides the technical knowledge, RENA encouraged and fostered the establishment of regional networks of experts for the different policy areas with the aim of sharing the information, best practices and expertise.

RENA was funded by the European Union and managed by the European Commission, DG Environment.

RENA was implemented by a consortium of companies led by Hulla&Co Human Dynamics KG.

As leader of the consortium, Human Dynamics built on the experience and knowledge gained from nearly 20 years of public sector consulting. Human Dynamics is focused primarily on institutional strengthening and capacity building in technical assistance projects with a mission to assist in solving environmental and climate problems globally. With partners and clients in all regions of the world, at international, national, regional and local levels, Human Dynamics promotes thoughtful planning, sensitive implementation and, most importantly, consultation with, and involvement of, the people affected by the changes.

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DISCLAIMER

This publication has been produced with the assistance of the European Union. The contents of this publication are the sole responsibility of the consortium led by Hulla&Co Human Dynamics KG and can in no way be taken to reflect the views of the European Union.

Consortium led by Hulla&Co Human Dynamics KG seeks to ensure that information contained in these pages is accurate. However, no liability or responsibility is accepted arising from reliance upon the information contained in this publication.

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INTRODUCTIONABBREVIATION LISTCHAPTER 1 - The European Union – A Continuous Process of Negotiation

1.1. The Contemporary International System1.2. International Negotiation1.3. European Negotiation1.4. Accession Negotiations to the European Union

CHAPTER 2 - EU Institutions 2.1. The European Commission2.2. The Council of the European Union2.3. The European Council2.4. The European Parliament2.5. The European Court of Justice

CHAPTER 3 - EU Policies3.1. Internal/Single Market3.2. Competition3.3. Economic and Monetary3.4. Common Agriculture Policy3.5. Environment Policy3.6. Commercial Policy3.7. Justice and Home Affairs3.8. Foreign and Security Policy

CHAPTER 4 - Decision-making in the E.U.4.1. Choosing What (not) to Do4.2. Executive Politics: Delegated Decision-making4.3. Legislative Politics or International Negotiations?

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4.3.1. Legislative Politics in the European Parliament4.3.2. Decision-making in the Council4.3.3. Inter-institutional Power Dynamic

4.4. Judicial Politics4.5. Implementation of Decisions

CHAPTER 5 – European Accession Negotiations5.1. Theory and Practice of Negotiation5.2. Negotiating the European Union5.3. The EU Enlargement Policy5.4. Negotiating the European Union Accession

CHAPTER 6 - Institutional Framework and Actors of the EU Accession Negotiation6.1. Role of Government6.2. Inter-Ministerial Coordination6.3. Working Groups6.4. Parliament6.5. Civil Society and Interest Groups6.6.The Negotiation Team and the Chief Negotiator6.7. Diplomats and Experts/Professionals as Negotiators

CHAPTER 7 – Strategies and Tactics in the Accession Negotiations7.1. Negotiation Strategies7.2. The Accession Criteria7.3. Popular Support for Accession to the EU

Chapter 8 - Negotiation Positions (Positions Papers)8.1. Position Paper8.2. Background Dossiers 8.3. The Structure of a Position Paper

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CHAPTER 9 - Transition Periods and Derogations – Flexibility and Rigidity in the Accession Negotiations

9.1. Cases for Applying Transitions and Derogations9.2. Derogations

CHAPTER 10 - Final Stage of Accession Negotiations10.1 Financial Package10.2. The Accession Treaty

CHAPTER 11 - Integration Capacity and Effective Implementation of the Negotiated Commitments and EU Rules

11.1. Fulfilling the Requirements for Functioning in the EU11.2. Addressing Administrative Capacity Problems11.3. Effective Policy Implementation11.4. Self-assessment for Effective Implementation11.5. European Integration – a Process of Internal Commitment

CHAPTER 12 - Case study – Chapter 27 Environment (Croatia)

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INTRODUCTION

The idea of publishing this Handbook took shape during the training sessions organised by RENA (Regional Environmental Network for Accession) in a few Western Balkans countries with financial support from the European Commission (DG Enlargement). One of the objectives of these meetings was the transfer of know-how regarding the EU accession negotiations experience from the states of the 5th enlargement wave towards the acceding and candidate countries of South-East Europe.

Participants in the training sessions dealing with EU accession negotiations were largely government representatives, non-governmental organizations, journalists and experts from the Western Balkans. Mainly, the training consisted in negotiation exercises and simulations addressing specific issues. “Environment” was the topic opted for. One of the main concerns of the training was the understanding of the process of EU accession negotiations. Working on the preparatory phase and the actual development of accession negotiations by chapters against the background of the EU enlargement and integration dynamics was a good opportunity to develop specific skills to the participants. A strong emphasis was placed on enhancing individual and teamwork capacities in using data and technical support.

This Handbook is in response to the concern felt during the training sessions to provide participants with theoretical background and specific case-studies intended to outline the framework of EU accession negotiations while enhancing the efficiency of simulations and exercises. Designed as a theoretical and methodological tool for the understanding and preparation of EU accession negotiations, this material is intended to support institutional players already involved or those who are to begin new negotiation rounds, as well as political representatives, the media and citizens who wish to learn about the process of EU accession and about integration in the European Union. Notwithstanding, this Handbook is a useful tool in the hands of students in European Studies and International/European Negotiations and the public at large.

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The structure of this Handbook was designed as a guide for participants in negotiations for accession to the EU. It can be extremely resourceful in developing negotiating skills, such as agenda-setting and prioritization, using information, choosing tactics and preparing proper strategies, building-up relations with partners and collaborators and so on.

By providing resources for the understanding of specific processes and the development of the required skills in EU accession negotiations this Handbook is elaborated for the purpose of learning of European negotiations in order to gain access and manage operations on the Single Market and to allow EU Member States, third parties, companies, NGOs and citizens at large to achieve their interests.

I am very grateful for the input of the project manager, Ruža Radović, Mihail Dimovski key expert of RENA project, of Mădălina Ivănică (DG Environment) and of Simon Mordue, Allan Jones (DG Enlargement) from the European Commission. Particular thanks go to my colleagues at the Center for International and European Negotiations of the Faculty of European Studies of the “Babeş-Bolyai” University in Cluj-Napoca. The entire text of this handbook is the responsibility of the author, and it doesn’t reflect the views of any governments or European institutions.

Prof. dr. Vasile PuşcaşJean Monnet Ad Personam Chair

Babeş-Bolyai University, Cluj - Napoca

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ABBREVIATION ENTITY

BATNA Best Alternative toNegotiation Agreement

CAP Common Agriculture Policy

CATSCoordinated community

for Police and JudicialCooperation (Criminal Matters)

CFI Court of First instance

CFSP Common Foreignand Security Policy

COM European Commission

COPS Political andSecurity Committee

CoR Committee of Regions

COREPER Committee of PermanentRepresentations

CP Common Position

CSCS Council of SeniorCivil Servants

DCP Draft Common Position

DG Directorate General

EC European Community

ECJ European Court of Justice

ECSC European Coal andSteel Community

ECOFin Council of Ministers forEconomic and Finance Affairs

LIST OF ABREVIATION

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EEC EuropeanEconomic Community

EESC European Economicand Steel Community

EFC Economic andFinancial Committee

EIPA European Institute ofPublic Administration

EMU European andMonetary Union

EP European Parliament

ESC Economic andSocial Committee

EU/E.U. European Union

EURES European JobMobility Portal

EUSR European UnionSpecial Representative

FYROM Former YugoslaviaRepublic of Macedonia

GPA GovernmentProcurement Agreement

HR High Representative

IGC IntergovernmentalConference

JHA Justice andHome Affairs

MEP Member ofEuropean Parliament

MFA Ministry ofForeign Affairs

LIST OF ABREVATION


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NATO North AtlanticTreaty Organization

NGO Non-GovernmentalOrganization

OECD Organization for EconomicCooperation and Development

PM Prime Minister

RENA Regional EnvironmentalNetwork for Accession

QMV Qualified Majority Vote

SAA Stabilization andAssociation Agreement

SAI Supreme Audit Institution

SCA Special Committeeon Agriculture

SEA Single European Act

SEM Single European Market

SGP Stability and Growth Pact

TEU Treaty on European Union

ToA Treaty of Amsterdam

ToN Treaty of Nice

ToL Treaty of Lisbon

UN United Nations

US United States

VAT Value Added Tax

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CHAPTER 1 - The European Union – A Continuous Process of Negotiation1.1. The Contemporary International System1.2. International Negotiation1.3. European Negotiation1.4. Accession Negotiations to the European Union

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THE EUROPEAN UNION – A CONTINUOUS PROCESS OF NEGOTIATION


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THE EUROPEAN UNION – A CONTINUOUSPROCESS OF NEGOTIATION

1.1. The Contemporary International System

After the fall of the Berlin Wall and the end of the “bipolar world”, the contemporary international system entered a prolonged transitional phase. Neither actors, nor international policies benefited, in the post-Cold War period, from a set of widely accepted and applied principles and rules. And, certainly, the phenomenon of globalization itself is a contributor to the delay of clearly coding the characteristics of the current international system. It is certain that, over the last two decades, many quantitative and qualitative changes have been recorded at a global scale, and that an intense, accelerated and diversified process of interactions and interdependences has developed between societies, which suggests that a “new” international system will emerge only through the incorporation of the determinants of globalization (Baylis&Smith, 2001). Considering this increased complexity of today’s world as a result of the contemporary history we are experiencing, we also state, like David Held, that we are facing a multi-level structure of international and transnational activities, that should be answered, from a global governance point of view, with a multi-centric system, based on multi-layered, multi-dimensional and multi-actor formations (Held, 2005).

An answer to globalism could be the integrative process, and this will progress only to a regional scale. Meanwhile, the actors (state or non-state) find themselves in the situation of adopting certain decisions in order to manage the effects of global interactions. This - although the fact that criticism related to the decision making process as being largely restricted to elites continues to be present - develops almost exclusively through competition, rather than through representative, participatory or democratic means (Baylis&Smith, 2001). Recognizing the reality of the complex interdependence which determines specific behaviors (Arnett, 2002), from an individual to an organizational level, the international actors have to face the challenges of all types of global interactions, developing a continuous international management. David Held admits that the institutionalization of global processes may be difficult, but he finds that the decision-makers could promote effective means of resolving global issues, such as the development of a set of criteria, norms, institutions and negotiation arenas (Held, 2005). In addition, the evolution of the “international environment” will generate the professional and scientific concerns (including the academic ones) regarding international management. According to Hodgetts and Luthens,

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international management has imposed itself as an incentive to “think internationally” and to “manage across-borders”. The two authors demonstrate that in all categories of interactions – conflict and/or cooperation – the negotiation is one of the most useful tools in the decision making process (Hodgetts, 1994).

Thus, international negotiation has become an almost daily concern of every international actor, one of the most efficient means of attaining optimal solutions for the increasingly complex problems that we are facing under the circumstances of the globalization phenomenon.

1.2. International Negotiation

The negotiation literature of recent years aims to demonstrate that negotiation has become a necessity and a daily concern. Deborah Kolb and Judith Williams claim even that negotiation is a major component of our family life and our work (Kolb&Williams, 2003). But, if we accept negotiation as a part of our daily life, it is because the decision- making process today – in politics, business, probably also in family life – is carried out in an increasingly horizontal way, rather than in the traditional hierarchically manner, and the aim of negotiation is not only that of closing a transaction, but also – by pursuing an economic model – that of maximization, finding the optimal solution or obtaining added value.

“Harvard Business Review on Negotiation and Conflict Resolution” (2000) sees negotiation as an intergroup, inter-organizational, international “management of differences.”(Harvard, 2000). Only a few decades ago, international relations were analyzed through the Westphalian paradigm and diplomatic negotiation concerned regulation of state’s connections of common interests and conflicts. The term international negotiation was used to describe the international contextuality rather than the involvement in international processes (Center, 1984). Another direction of research and practice of international negotiations was the extension of the one mentioned before, insisting - predominantly - on the international negotiation environment. Regardless of the fact that it was a question of political or economic (businesses) aspects, this formula insisted on the aspect of intercultural communication, seeking to connect a specific oriented negotiation (diplomatic, businesses etc.) to the cultural and/or multicultural environmental specificities (Brett, 2001). As globalization has become more intense, international/global negotiations have increased rapidly, becoming - for many people and organizations, norms, rather than “exotic” activities (Lewicki et al., 2004); the negotiation itself being seen as a social process taking place in a much larger context.



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Connecting institutional negotiations to the diplomatic negotiations, alongside predictive negotiation, Alain Plantey has provided more complex and realist meanings of the term international negotiation, which he considers to be both a “tool for displaying national potential (economic, technologic, cultural)” and also “a way to manage and govern the international society”(Plantey, 2002).

1.3. European Negotiation

The European Union is the result of institutional, legal, political, economic and cultural construction that took place in the second half of the 20th century. The Schuman Declaration (9 May 1950) is a short guide for the accomplishment of that construction, targeting “an organized and vital Europe.” The Declaration marked the negotiation path, to establish “the basis for a broader and deeper community among people long divided by bloody conflicts” (Declaration, 1082). The aim of these negotiations was the “construction of a common basis.” From the very start of what we can refer to as European negotiation, Schuman suggests a multi-party formula (the invitation by the French and German parties of an arbitrator “appointed by common agreement”), and, in addition, the international environment characteristic (requesting evaluation from the UN).

Professor Paul Meerts noted that today’s European Union is “an enormous international negotiation process”, within a multilateral framework (Meerts in Puscas, 2003). This negotiation process has followed the groundwork of Schuman’s scheme until today.

Thus, at the European Institute of Public Administration in Maastricht, negotiation is defined as “a process in which two or more parties try to obtain a solution on matters of common interest, in the situation where the parties are in an actual or potential disagreement or conflict” (Lavedoux et al., 2004). Before considering the European negotiation as an expression of exceptionalism, we will mention that Fred Charles Iklé, in his famous work How Nations Negotiate, was asserting a similar meaning when referring to negotiation in general terms -“a process in which clear proposals are made in order to reach an agreement, through an exchange or through the achievement of the common interest, in situations where conflicting interests are present” (Ikle, 1987). The negotiations for European construction developed some unique characteristics, of course in a multilateral framework, and even though we can’t talk about a European style of negotiation, as the most prestigious national schools of negotiation achieved, we believe that a certain specificity or individuality of European negotiation can be sustained.

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Mentioning this recent debate regarding the European negotiation, we must point out that it reflects what the authors call as a new “era of negotiations”, which means a very different world from the one in which H. Kissinger used the term for the first time (in the ‘70s). To the new international context, it is mandatory to add the “three worlds” that compose the European arena of negotiations: (a) borders (spaces and territories); (b) layers (different objectives and various authorities);(c) networks (connections, communications).

The literature on European negotiation has been enriched especially since the last decade of the past century. Certainly, the end of the Cold War, the major challenges of globalization and the progressively more visible tendencies of the European Union of imposing its legal recognition within the international system have stimulated theoretical and casuistic debates regarding European negotiation. Without any doubt, the most applied academic and political discussion on the subject of European negotiation was due to the internal reforming tendencies of the European Union (institutional and political), as well as the project of its extension in Central and South-Eastern Europe. In 2000, the Journal of European Public Policy dedicated a special issue to the European negotiations, the authors making interesting contributions to the theory of negotiation and proposing negotiation analysis for the most important aspects of the European policies. Paul Meerts and his contributions went even further, and created, in 2004, a systematic and comparative analysis on the European negotiation (Meerts&Cede, 2004). Ole Elgström and Christer Jönsson approached the concept and the practices of European negotiation from a procedural perspective, that of networks and institutions (Elgstrom&Jonsson, 2005) In recent years, the focus was on the descriptive and procedural analysis of the European negotiations, such as the intergovernmental conferences and treaties (Beach, 2005) or on the power aspects and leadership in the European negotiations (Tallberg, 2006). The provocative studies published by Franz Schimmelfennig (2005) in the area of European integration and EU Enlargement are truly very useful for the assessment of political methods applied in Brussels and Member (States0, including the European negotiations. The recent book published by Christina J, Schneider (2009) shows the role of European/accession negotiations in the European politics. In the last decade, the French periodical “Negotiations” issued several contributions on this topic and Lempereu&Colson published a historical analysis on the European negotiations (Lempereu&Colson, 2008). Finally, the training centers of European negotiations have proliferated (Brussels, Vienna, Maastricht etc.) and EIPA even published, in 2004, a “Handbook for the European Negotiator” (Lavedoux et al., 2004). And, of course, the enumeration may continue.



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All these represent, according to Michael Smith, “the new European space of negotiation” (Smith, 2000). Consequently, the same author asserts that European negotiation must not be seen only as a process, but also as a system of negotiation. For such a perspective, as M. Smith claims, European negotiation is not only international, but also strongly conservative (Smith, 2000). And, because we mentioned the European negotiation considered as a process, we will add that Elgström and Smith align with those authors who perceive the European negotiation as a continuous activity, an inter-bureaucratic and political multilateral marathon. But the procedural character is also given by the fact that the European negotiation is “a process of communication where the actors send signals from one to the other to influence the expectations and/or the values of another party” (Jönsson, apud Elgstrom&Smith, 2000). In addition to these characteristics, the study of the two authors adds the following ones: the diversity of contexts and negotiation opportunities, the diversity of actors and preferences and the diversity of systemic analysis. But, most convincingly, in order to perceive the European negotiation as a system, one can invoke the arguments of the interdependence of actors, the regularity of interaction and the (formal or informal) presence of rules and institutions. Therefore, such multi-level negotiations (European negotiations) are highly institutionalized and permanent, the multiple parties have distinctive roles, formal negotiations are connected to the informal ones, creating a link between both the internal levels and sectors, as well as between the internal and external negotiation of the European Union.

1.4. Accession Negotiations to the EU

The topic of European negotiation has entered the public consciousness over the last decade and a half, primarily due to the process of enlargement of the European Union in Central and Eastern Europe. This is explained by the necessity to develop the profile expertise, together with the intense academic and scientific debate on this issue. Let us remember that, at the beginning of the last decade, the hypothesis of the states from this area adhering to the European Union (and NATO) was considered in geopolitical and geostrategic terms (Marer, 1994). Although this vision has maintained its mark, especially at the level of the Member State, by the end of the fifth enlargement, as the decision to elaborate principles, strategies and application programs began to be shaped, the discussion regarding the ways in which European Union would negotiate with the candidate countries became clear.

For the Member States, the accession negotiations had a significantly different form, as compared to the other negotiations of the European Union on the international stage (Friis&Jarosz-Friis, 2002). The states which aspired to European Union membership considered the accession negotiation

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period to be a trust building process between the negotiating parties, so that a mutual perception was established regarding the way each candidate will be capable to cope with the accession challenges (Inotai, 2001). The political, economic, journalistic and academic environments in the European states, and not only those, had paid special attention towards the content and the progress of the accession negotiations. Each of these environments tried to explain and project their interests towards these negotiations, thus the attitudes and the communication paradigms had evolved during the last decade, at one point creating the perception that the process of enlargement was one of the most predominant activities of the European Union. Although it has also been said, at least during the mandate of the Prodi Commission, the purpose was to achieve a coherent enlargement and to deepen (by internal reforms) the integration to the European Union. For that reason, nowadays we benefit from an extremely rich scholarly and journalistic literature on the accession negotiations.

Many comments from the beginning of the accession negotiations, in the last enlargement wave, emphasized the disproportionate power ratio in negotiations. Andreás Inotai wrote that the accession negotiations took place between “parties as unequal as can be” (Inotai, 2001), this imbalance being the result of several factors: the Union represented one of the world’s most powerful economic groups; they always negotiated the accession with one single country, even though there were more states negotiating at the same time; besides the fact that all accession negotiations took place in Brussels, the candidate states were the ones which had to come first with their positions and only after that they followed the position of the European Union. Other authors directly stated that the accession negotiations, even though were based on the win-win formula, were characterized by a high degree of asymmetry (Friis&Jarosz-Friis, 2002). Lykke and Anna Friis show that the European Union is an actor with a very high negotiation power, while the candidate state is out of the loop, soliciting to enter the “Club”; The Member States are more knowledgeable about the acquis – the object of the accession negotiations - than the candidate state. And because the accession negotiation is, in fact, a “double negotiation”, the advantage is enormous for the European Union, because it may constitute a pressure on the candidate state (The Presidency has the possibility to present a certain common position of the Member States, which the candidate state may intent to modify, but knowing that, it means taking a high risk and that it is time consuming).

The accession negotiation to the European Union has three fundamental characteristics (Bollen et al., 2000): 1.) it is a process of discovery = the two parties inform each other about what they want, what they intend, what they offer (information is, therefore, an essential negotiation instrument);



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2.) it is a strategic interaction = the parties seek to influence each other, to shape their behaviors in order to obtain the best possible results;

3.) it is an exchange process = each party tries to configure the behavior of the other by offering something or making certain concessions.

We close this section by emphasizing that the Chief Negotiator has the task to provide the adequate data of accession preparation and to present them in a suitable position. Starting from the information preeminence and its veracity, but also from the domestic and external contextuality, the Chief Negotiators leads the negotiations according to the established strategies and tactics. While the Chief Negotiator is expected to formulate the positions of the candidate state and to demonstrate the capacity of a complete and rapid compliance of the acquis, the negotiators of the Council and Member States seek the most adequate harmonizing formulas.

• the contemporary international system entered a prolonged transitional phase;• the international actors have to face the challenges of all types of global interactions;• the international negotiation become an almost daily concern of every international

actor, one of the most efficient means of attaining optimal solutions for the increasingly complex problems that we are facing under the circumstances of the globalization phenomenon;

• the European negotiation must not be regarded only as a process, but also as a system of negotiation;

• the accession negotiation could be considered a trust building process between the negotiating parties, so that a mutual perception is established regarding the way each candidate will be capable to cope with the accession challenges.

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CHAPTER 2 - EU Institutions 2.1. The European Commission2.2. The Council of the European Union2.3. The European Council2.4. The European Parliament2.5. The European Court of Justice

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EU INSTITUTIONS

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EU INSTITUTIONS

Most of the studies of the EU concentrate and describe what happens in and through the special institutions of the EU, located in Brussels, Luxembourg and Strasbourg: the European Commission, the Council of the EU, the European Council, the European Parliament (EP) and the European Court of Justice (ECJ).

The EU has grown out of three originally separate Communities (ECSC, EEC and Euratom), each with its own institutions. These were formally merged in 1967. The main elements originally consisted of:• A collective executive of sorts – European Commission;• A collective forum for representatives of member governments – the Council (of Ministers);• A mechanism for binding arbitration and legal interpretation – the European Court

of Justice (ECJ);• A parliamentary chamber – the European Parliament (EP originally “Assembly”),

with members elected from political parties of the member states.

In addition, the Economic and Social Committee (ESC) provides a forum for consulting other sectors of society. Later, in the 1990s the Committee of the Regions (CoR) was created to allow for consultation with local and regional authorities.The institutional design is subject to periodic revision, latterly with increasing contention (Wallace, Pollack, Young, 2010). The importance of EU institution is one of the most debated issues by the scholars of European studies (see details in Beach, 2005). The EU institutions matter in the intergovernmental negotiations, on both treaty reform and enlargement of the Union, being able to influence the outcomes of the major negotiations of the EU. In the supranational context of the EU framework, the leadership of EU institutions has been essential in the integration process, despite the weak formal role they played in intergovernmental negotiations. EU institutions matter in European negotiations (Beach, 2005) because:• They have strong resources and informational advantages;• They have a reputation for impartiality and expertise;• They have a privileged institutional position;• They are very helpful in technically complex negotiations;• They have a valuable ability in complex negotiation situations;• They can mediate in distribution and intensity of governmental preferences;• They can present appropriate leadership strategies for the negotiating context.

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2.1. European Commission

It is a secretariat and a proto-executive in the EU’s institutional system.

The Commission:• Exercises its responsibilities collectively; the Commissioners constitutes a “college” - their

decisions and proposals to the Council and the EP have to be agreed by the entire college, voting (if necessary by simple majority) in its weekly meetings;

• Is chaired by a President, chosen under the Treaty of Nice (ToN) by qualified majority vote (QMV) in the European Council and subject to approval by the EP;

• The commissioners, each responsible for a policy portfolio, are nominated by member states’ governments, endorsed by the Council, subject to the approval by the EP, which can lead to names being withdrawn;

• It is organized into Directorates-General (DGs), named after the main areas of policy activity;• Its powers vary widely between policy domains (e.g. regarding competition policy, it operates

many of the rules directly, in other domains it drafts the proposals for legislation, which then have to be approved by the Member States’ governments, etc.);

• It has the exclusive power of initiative, which gave the opportunity to be the agenda-setter, thus having an entrepreneurial role;

• Its resources includes:• the capability to build up expertise;• the potential for developing policy networks and coalitions;• the opportunity to help the governments of the Member States to resolve their own

policy predicaments.• It needs regular channels for consultation and cooperation with relevant national offices (a

network of advisory, regulatory and management committees has developed to provide these channels);

• It has to compete for influence with other EU institutions and with the governments of the member states (Wallace, Pollack, Young, 2010).

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2.2. The Council of the European Union

It is:• An institution with collective functions;• A product of the member governments;• Its members are usually ministers from incumbent governments of the member states, but

ministers who attend meetings depending on the subjects being discussed, and on how the individual governments choose to be represented (Wallace);

• Passes EU laws;• Coordinates the broad economic policies of the EU Member States;• Signs agreements between the EU and other countries;• Approves the annual EU budget;• Develops the EU’s common foreign and (defense) policies;• Manages coordination between courts and police forces of Member States (see the Council

of the European Union website). The structure of the Council of EU could be figured as follows:

Table 2.1.: The structures of the Council (after Wallace, Pollack, Young, 2010, p. 76).

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The meetings of ministers are prepared by national officials in the committees and working groups of the Council. The most important of these has been the Committee of Permanent Representatives (Coreper), composed of:• The heads (Coreper II) of the Member States’ Permanent Representation in Brusels;• Deputies (Coreper I) of the Member States’ permanent representations in Brussels.These both COREPER meet at least weekly to agree with the items on the Council agenda and to identify those that need to be discussed by the ministers.

Numerous working groups constitute the backbone of the Council and perform the detailed negotiation of policy. Their members come from the Permanent Representations or national capitals. 70% of Council texts are agreed in working groups, another 10-15% in Coreper or other senior committees, and the rest of 10-15% are left for the ministries meetings.

What does the Council do in its various configurations?• It negotiates over detailed proposals for EU action, often on the basis of a draft from

Commission;• Often, it might indicate to the Commission that it would welcome a draft on a particular

subject. On most of the topics where the Commission is the primary drafter, the EP is co-legislator with the Council;

• An important role is played by Council’s General Secretariat;• The proceedings of the Council are managed by its Presidency. This rotates between member

governments every six months. The Council presidency chairs meetings at all levels of ministers and officials.

The role of Council of EU Presidency:• Preparing the agenda;• Conducting the meetings;• Speaking on behalf of the Council to other EU institutions and the outside partners on issues

other than CFSP;• Working closely with the Commission on specific issues, such as the external negotiations;• Working with EP presidencies in the legislative fields to reconcile the Council and parliamentary

views on legislative amendments.

The Council:• Spends much of the time acting as the forum for discussion on the response of Member

States governments’ to the Commission proposals;• This implies a continuous negotiation, in order to establish a consensus;• The formal rules of decision-making vary according to the policy domain (Wallace, Pollack,

Young, 2010):

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9 Unanimity; 9 Qualified majority voting (QMV); 9 Simple majority;

• The number of votes are according to country’s population as follows: 9 Germany, France, Italy and the United Kingdom 9 Spain and Poland 9 Romania 9 Netherlands 9 Belgium, Czech Republic, Greece, Hungary and Portugal 9 Austria, Bulgaria and Sweden 9 Denmark, Ireland, Lithuania, Slovakia and Finland 9 Cyprus, Estonia, Latvia, Luxembourg and Slovenia 9 Malta

TOTAL: 345 Votes

• When votes concern sensitive topics – such as security and external affairs or taxation - decisions by the Council have to be unanimous. This means that one single country can veto a decision (see Council of EU website: www.consilium.europa.eu/).

In some policy domains, the Council is the decision-maker of last resort:• Agriculture;• New policy JHA and CFSP.What is the style of the Council – bargaining or deliberations?• In some policy areas there are sharp disagreements and tough strategic bargaining (particular

when new regimes are at issue);• in other policy areas, as policy-making becomes more routinely or when the issues are more

technical, there is evidence of a more deliberative style (Wallace, Pollack, Young, 2010).

2.3. The European Council• It became an official European institution with the entry into operation of the Treaty of

Lisbon at December 1st 2009;• It consists of the Heads of State or Government of the Member States, together with its

President and the President of the Commission. The High Representative of the Union for Foreign Affairs and Security Policy takes part in its works;

• It defines the general political direction and priorities of the European Union;

29 2714131210743

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• Its President is elected by a qualified majority. The President’s term of office is two and a half years, renewable just once (see European Council website: www.consilium.europa.eu/);

• Historically, once every semester a meeting was held in the country of the presidency, but under the new terms of ToN sessions are held in Brussels since the 2004 enlargement;

• The national delegations are restricted to : president or prime minister, foreign minister, finance minister (sometimes); there are parallel meetings of representatives of other ministers and officials, depending on the preoccupations of the moment;

• It is left to solve the periodic major arguments about EU revenue and expenditure;• It became the key forum for determining treaty reforms in the closing stages of

Intergovernmental Conferences (IGCs);• It could be seen as the “main staging posts in the development of policy”;• The level of its activity has expanded, reflecting an increasing preoccupation of the national

politicians to take control of the direction of EU;• It exercises explicit political leadership in the EU process (Wallace, Pollack, Young, 2010);• The decisions of the European Council are taken by consensus; in some cases, it adopts

decisions by unanimity or by qualified majority, depending on what the Treaty provides for (European Council website: www.consilium.europa.eu).

2.4. European ParliamentThe structure of EP includes:• President;• MEPs - members of European Parliament;• Political groups;• Parliamentary committees;• The Information Office;• Conference of Presidents;• Delegations.

European Parliament locations are:• Strasbourg - for the twelve parliamentary sessions, including the session on budget;• Brussels - for extraordinary sessions and parliamentary committees;• Luxembourg - for General Secretariat and its services.

The competencies of European Parliament are:• Legislative (Consultation procedure, Concentration procedure, Cooperation procedure, Co-

decision procedure and Assent procedure);

EU INSTITUTIONS


28

• Budgetary (decides with the EU Council);• Control (supervises the EU activities).

The 7th legislature of European Parliament began in 2009 and will last until 2014 (5 years):• 2009 elections produced 736 members, but 753 under the ToL, which represent 27 Member

States and 500 European millions citizens;• There are 7 political groups:

9 European People’s Party (Christian Democrats); 9 Progressive Alliance of Socialists and Democrats; 9 Alliance of Liberals and Democrats for Europe; 9 Greens/ European Free Alliance; 9 European Conservatives and Reformists; 9 European United Left/Nordic Green Left; 9 European of Freedom and Democracy Group;

• 20 parliamentary committees (between 24 and 76 members in a committee);• It is an important legislative partner to the Council;• It has a real impact on more detailed rule-setting;• The increased political standing of the EP is likely to enable it to influence the policy

process as a whole rather more in the future (Wallace, Pollack, Young, 2012).

CONSULTATIONCommission proposals to Council are passed to EP for an Opinion. EP may suggest alterations, delay passing a resolution to formalize

its Opinion, or refer matters back to its relevant committees.

COOPERATION

Commission proposals passed to Council for a “common position” and the EP for the first reading, in which may propose amendments. The EP may at its second reading seek to amend the Council’s common position, or by an absolute majority reject it. Council can override the EP’s rejection only by unanimity. Alternatively, the EP and the Council try to negotiate an agreement in a conciliation procedure.

CO - DECISON=

ORDINARYLEGISLATIVEPROCEDURE

A bicameral legislative procedure in which the Council and EP adopt legislation by common agreement. Council and EP may both agree a proposal at first reading. If they disagree at second reading, the EP may reject the proposal (by absolute majority), which then falls. Or the EP may amend the Council’s common position by an absolute majority, in which case conciliation takes place between the Council (usually Coreper I) and the EP. The result of conciliation may be approved in third reading by both Council (QMV) and EP

(majority of votes casts). Proposals falls if not agreed.

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Table 2.2.: The Powers of European Parliament (after Wallace, Pollack, Young, 2010, p. 83)

2.5. European Court of Justice

It is:• Located in Luxembourg;• Composed of 27 judges and 8 advocates-general, who deliver preliminary opinions on cases;• As a supreme court, it is able to provide an overarching framework of jurisprudence, and

to deal with litigation, both on cases referred via the national courts and on those brought directly before it;

• Individuals, companies or organizations can also bring cases before the Court if they feel their rights have been infringed by an EU institution (ECJ website: curia.europa.eu/)

• The SEA (Single European Act) established in 1986 a second court, the Court of First Instance (CFI, the General Court after the ToL), composed nowadays of 27 judges, to help in handling the heavy load of cases in certain specified areas (ex.: competition policy) (Wallace, Pollack, Young, 2010);

• Interprets EU law to make sure it is applied in the same way in all EU countries;• Settles legal disputes between member states governments and EU institutions (see Annex No.1);

ASSENTOn certain issues the EP must, in a single vote, give its assent by an absolute majority of its members. Applies to: certain international agreements, enlargements treaties, and framework

agreements on the structural funds.

BUDGETEP may try to modify “compulsory” expenditure, or to amend “non-compulsory” expenditure. It must approve the budget as a whole, and subsequently “discharge” the accounts of previous

year’s actual expenditure.

INSTALLATION OF COMMISSIONERS

Since the ToA, the EP has the right to approve nomination of the Commission President. It holds individual hearings with nominated commissioners and passes a vote to approve the

whole college.

CENSURE OF COMMISSION

EP may censure the college of commissioners by a two-thirds majority of its members.

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30

The five most common types of cases are:• Requests for a preliminary ruling– when national courts ask the European Court of Justice

to interpret a certain point of the EU law1. Actions for failure to fulfil an obligation – brought against the EU Member States’

governments for not applying the EU law2. Actions for annulment – against the EU laws thought to violate the EU treaties or

fundamental rights3. Actions for failure to act – against the EU institutions for failing to make decisions required

of them4. Direct actions – brought by individuals, companies or organizations against the EU decisions

or actions (ECJ website: curia.europa.eu/).

The important principles of European Law are:• The supremacy of EC law over the law of the Member States;• The direct effect of EC law in national legal orders;• A doctrine of proportionality and of non-discrimination on the basis of nationality among

nationals of EU Member States.

The vigor of the European legal system:• Is one of the most distinctive features of the EU;• It has helped reinforce the powers and reach of the EU process (Wallace, Pollack, Young, 2010).

• European Commission is a secretariat and a proto-executive in the EU’s institutional system;• The Council of the European Union is an institution with collective functions, a

product of the member governments;• The European Council consists of the Heads of State or Government of the Member

States, together with its President and the President of the Commission. The High Representative of the Union for Foreign Affairs and Security Policy takes part in its work;

• European Parliament has legislative, budgetary and control competencies and it is composed from MEPs;

• European Court of Justice is like a supreme court, able to provide an overarching framework of jurisprudence, and to deal with litigation, both in cases referred via the national courts and those brought directly before it.

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31EU POLICIES

CHAPTER 3 - EU Policies3.1. Internal/Single Market3.2. Competition3.3. Economic and Monetary3.4. Common Agriculture Policy3.5. Environment Policy3.6. Commercial Policy3.7. Justice and Home Affairs3.8. Foreign and Security Policy

313337373839404343

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EU POLICIES

Policy-making in the EU is particularly complex and distinctive. Nonetheless, it can be fruitfully studied by drawing upon the insights taken from the analysis of policy-making within states and cooperation among states.

Enlargement remains a key policy of the European Union, allowing it to better address global challenges and pursue its strategic interests. The Council of European Union observes closely the key policies for each acceding country and then takes the decision to open the accession negotiations. (http://www.diplonews.com/feeds/free/13_December_2012_217.php).

European policy-makingThe policy-making process is commonly depicted heuristically as a „policy cycle”: a self-conscious simplification of a complex phenomenon in order to facilitate our understanding. The policy cycle is usually depicted as commencing with an issue being put on the political agenda:• It becomes an issue of concern (agenda-setting);• Once a decision has been taken to address a particular issue, it is necessary to formulate

specific proposals for action (policy formulation) and • Decide what course of action to pursue, or not (policy decision);• If a policy decision is taken, then the policy must be put into effect (implementation);• The policy cycle emphasizes that the story does not stop with the policy implementation, but

they intend that effects of policies should often feed back into the policy process;• The last „step” is the evaluation.

The Players in the European Policy ProcessThe main actors in the policy process of liberal democracies are:• politicians, • bureaucrats, • interest groups. Politicians - either as legislators or as members of government, are the key decision-makers. Bureaucrats advise politicians in government, take some policy decisions, and implement policies. Interest groups seek to promote policies and to influence politicians’ and bureaucrats’ decisions and often play a role in implementing policy.on the accession negotiations.

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Policy makes politicsWhich interest groups, firms and parts of the state engage in the policy process and how much autonomy the government has from societal actors, varies on the type of policy at issue. Within the EU, the policy in question also influences the level of governance authority lies at and which decision rules apply at the EU level. Theodore Lowi (in Wallace, Pollack, Young, 2010) stated that „policy determines politics”, identifying three main types of policy:• Distributive;• Regulatory;• Redistributive.The tendency was to treat the EU foreign policy as being distinct from the domestic policy-making. In particular, policies that have implications for the most basic concerns of the state (particularly security) are thought to be subject to „high politics”, in which heads of government are prominent and societal actors passive. Other policies, such as trade and international environmental policy have been depicted as subject to „low politics”, in which societal actors engage actively and which are addressed lower down the political hierarchy, and thus look more similar to domestic politics. Governments are thus thought to have more autonomy from societal pressures when pursuing some types of foreign policy than others (Wallace, Pollack, Young, 2010).

3.1. Internal/Single Market

Many new theoretical approaches to the study of European integration have taken the single market as their main point of reference, just as many earlier theorists had taken agricultural policy as their stimulus. For many, the Single European Market (SEM) program constitutes the critical turning point between stagnation and dynamism, between the “old” politics of European integration and the “new” politics of European regulation.

The Politics of Policy-making in the SEMThe SEM and SEA fundamentally changed the politics of market integration within the European Union:First, the SEM revived “negative integration”, that is, the removal of national rules that impede economic exchange. This is most obvious in the mutual recognition principle, the abolition of the frontiers controls, the elimination of exchange controls;Secondly, the SEA changed the institutional framework for “positive integration” –agreeing common rules to replace national ones-by extending and activating QMV and enhancing the powers of the EP;

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• In addition, with respect to the “new approach” and “home country control”, the SEM blurred the distinction between positive and negative integration by setting only minimum common requirements.

These different modes of integration have profound political implications as they both affect who are the key actors in the policy process and shape their relative influence:

Type of integration Mode Description

Estimated share of intra-EU trade accounted for by

affected products

NegativeMutual

RecognitionPrinciple

Different national standards assumed to be

equivalent in effect50%

Positive

“new approach”Common objectives with references to voluntary

standards20%

Approximation Common detailed rules 30%

Commonauthorization

Common approval of individual products

required

Pharmaceuticals,GM crops and food

Better regulation of the single marketRecognizing persistent problems with realizing the economic benefit of the SEM program, the maturation of the program-the bulk of the legislative agenda having been adopted – and its outdated emphasis on goods, the Commission launched an initiative in 2007 on “A Single Market for the 21st Century Europe”, which was endorsed in March 2008 by the European Council.

This renewed initiative aims:• To place greater emphasis on implementation and enforcement and• To rely less on legal measures to remove cross-border barriers.

Table 3.1.: The significance of different modes of market integration (Wallace, Pollack, Young, 2010, p. 117).

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The intention is:• To make use of a “smarter” mix of policy instruments, including competition policy, self-

regulation and other nonbinding instruments, such as recommendations;• The Commission also wants to enhance cooperation among and with national authorities

responsible for single market rules;• Where regulation is still considered necessary, it should be flexible enough to adapt over time

and to accommodate differences among Member States;• Thus, the Commission contends that this new initiative represents “a new approach to single

market”.

The “better regulation” agenda is an effort to reduce the adverse impact of regulation on the competitiveness of European firms. It involves efforts to “modernize” existing legislation by making it simpler through consolidation, codification or repeal.

In the Report to the President of the European Union “A New Strategy for the Single Market – At the Service of Europe’s Economy and Society”, written by Mario Monti (May 9th 2010), the three challenges that internal market has to face were underlined:(1)

(2)

(3)

The first challenge comes from the erosion of the political and social support for the market integration in Europe. There are also two reinforcing trends present:• “Integration fatigue” – eroding the appetite for more Europe and for a single market;• “Market fatigue” – with reduced confidence in the role of market.The second challenge comes from uneven policy attention given to the development of the various components of an effective and sustainable single market. Some difficulties comes from the unfinished business on two other fronts:• The expansion to new sector to accompany a fast changing economy;• The effort to ensure that the Single Market is a space of freedom and opportunity that

works for all citizens;The third, as if the single market challenge comes from a sense of complacency that gained strength in the past decade, as if the single market had been really completed and could thus be put to rest as a political priority. The Single Market was perceived as being “yesterday’s business”. The attention shift away from the single market was further strengthened by the need to concentrate the EU’s political energy on other challenging building blocks of European construction: monetary union, enlargement and institutional reform.

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The development of a Single Market is a continuous exercise (COM, (2012), 573 final, Single Market Act II). The economic and financial crisis has generated additional challenges and has emphasized the need for fundamental reform. The economic crisis is also a social crisis, because of the significant number of European citizens living in poverty. The Single Market is a tool to achieve the European high competitiveness of social market economy.

The Single Market Act (COM, (2011), 206 final) set out twelve elements to further develop the Single Market. These are:• Open domestic rail passenger services to operators from another Member State to improve

the quality and cost efficiency of rail passenger services;• Accelerate the implementation of the Single European Sky to improve safety, capacity,

efficiency and the environmental impact of aviation;• Improve the implementation and enforcement of the third energy package and turn cross-

border markets that benefit consumers into a reality;• Develop the EURES portal into a true European job placement and recruitment tool;• Boost long-term investment in the real economy by facilitating access to the long-term

investment funds;• Modernize the EU insolvency rules to facilitate the survival of businesses and present a

second chance for entrepreneurs;• Support online services by making payment services in the EU more efficient;• Reduce the cost and increase efficiency in the deployment of high speed communication

infrastructure;• Make electronic invoicing the standard invoicing mode for public procurement;• Improve the safety of products circulating in the EU through better coherence and

enforcement of product safety and market surveillance rules;• Give all EU citizens access to a basic payment account, ensure bank account fees are

transparent and comparable, and make switching bank accounts easier.

As a consequence of the Single Market, new relationships have been established between public and private actors at the EU level and between actors operating at the national and European levels.

The SEM also reduced the dependence of many economic actors on national policy. The scope for national policy-makers to control economic transactions on their territories has become more limited and will remain limited as long as the transnational legal regime of the EU holds together (Wallace, Pollack, Young, 2010).

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3.2. Competition

• It is one of the most important tools of the Single European Market;• Is concerned with setting standards of conduct rather than with obtaining tangible goals, and

is anchored in the principles of free-market capitalism;• The character and the role of competition policy have therefore been controversial across the

EU and in individual Member States;• Its enforcement has a differential effect across the very varied economic systems ranging

from highly liberalized markets to those where the state has played an important role in the economy (the Central-South-Eastern countries which stated to embrace capitalism only in the 1990s);

• European competition policy is broad and includes antitrust, merger control, and the control of the state aid (subsidies to industry);

• Its overall trust has been to press for the liberalization of markets on every front.

There are five components of the European competition policy, each of which relies on specific legal powers:1. A prohibition on agreements between firms that limit competition;2. A prohibition on the abuse of a dominant position by one or more large firms;3. The control of mergers which creates a dominant position;4. The control of aid given by a Member State to a firm or a category of firms;5. The liberalization of measures by Member States in order to favor domestic utilities and

infrastructure industries.

The competition policy has a special place in the European policy matrix because it defends the essential mobilizing principle of the EU, the Community interest in economic efficiency secured through the creation of a common market (Wallace, Pollack, Young, 2010).

3.3. Economic and Monetary Union

• Provides the European Union with a major role in macroeconomic policy-making;• The 17 members of the euro zone (Austria, Belgium, Cyprus, Finland, France, Greece,

Germany, Ireland, Luxembourg, Malta, The Netherlands, Portugal, Slovakia, Slovenia and Spain) have exchanged their national currencies for the euro and delegated responsibility for monetary policy to the European Central Bank (ECB);

EU POLICIES


38

• Member States have also agreed to coordinate their budgetary policies and structural reforms and to speak with one voice on international macroeconomic issues. The coordination of these policies is within the Council of Ministers for Economic and Financial Affairs (Ecofin);

• Member States have imposed limits on government borrowing under the Stability and Growth Pact (SGP) and agreed to coordinate structural reforms through the Broad Economic Policy Guidelines (BEPGs);

• It is a high-stakes experiment in the new modes of EU policy-making as far as both economic and monetary decision-making rely on the alternatives to the traditional Community method.

Economic Policy-making under the EMU• Is at the forefront of the EU’s efforts to promote policy coordination;• In contrast with the monetary sphere, there has been no significant delegation of economic

policy-making powers to the EU level under EMU;• It falls for Ecofin to build consensus on the priorities for economic policy in the euro area

and to the individual Member States to decide how they plan to meet these priorities (Wallace, Pollack, Young, 2010);

• The Commission’s role is to evaluate Member States’ economic-policy plans and to monitor their implementation on behalf of Ecofin.

3.4. Common Agriculture Policy

• The CAP has evolved into a complex policy regime driven by competing logics;• Internally, policy-making is now bifurcated between traditional market concerns and emerging

rural-development concerns;• Externally, an increasing number of links to other policy domains urge CAP policy-makers to

integrate, and respond to an even broadening variety of challenges;• CAP issues, which once were agricultural in the narrow sectoral sense, have become tied

up with trade issues, environmental issues, health and safety issues, and more recently with energy issues;

• This means that the CAP now reflects a combination of heterogeneous policy-making processes, which only partly rely on the Community method and have altered the way in which the Community method itself is conducted in the core CAP concern areas.

The CAP long conjured up images of medieval strongholds. Traditionally in the hands of a closed policy community, it invariably took on the guise of an impenetrable fortress built by

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farmers or farmers on the promontory of national sovereignty. Production surpluses, blatant income gaps among farmers, and repeated food scares eroded the foundations of the old regime. Budget discipline and the emergence of new policy priorities on the EU agenda depleted the resources available for the defense of traditional farm concerns. Global trade talks and successive enlargement provided venues for change. These developments contributed to the shedding of the outdated system of price support and asserting direct payments as a pivotal instrument of support, linking farmers’ concern for income support to changing public expectations regarding global trade liberalization, food safety, environmental protection, animal welfare, or balanced regional and territorial development.

3.5. Environment Policy

Environmental policy has become a well-established field of European Union engagement over the years. Its development was characterized by institutional deepending and the enormous expansion of environmental issues covered by EU decisions and regulations. From its typical regulatory policy mode follow some challenges for policy makers, improvement of implementation performance, and better policy coordination at all levels of policy-making. More recent challenges regard the fact that the countries brought by the enlargement into the Union were expected to resist further intensification of environmental policy efforts due to the financial implications; the international dimension of environmental policy is amounting to an ever greater challenge for the EU. Environmental policy has gained among other policy objectives of the Union.

There are four main actors involved: European Commission, EP, Council of Ministers and Court of Justice. Outside the institutional set-up there are the environmental interest groups.

The Commission started several initiatives to improve implementation and enforcement. The Commission also introduced a more “rational handling of complaints and infringements”, prioritizing structural and costly problems as well as intensifying proactive measures by offering guidelines, interpretive documents, and training initiatives to increase implementation capacities on the ground;

The Commission has started reforms in the choice of proposed policy instruments: EU adopted a number of environmental framework directives that aim both to avoid overregulation and to generate greater coherence of EU regulation;

EU POLICIES


40

EU policy-makers are aiming at better policy integration in two senses: several measures pay attention to the combined effects of pollution on different environmental media (air, water and soil), and the interdependency between these media;

So, the three policy challenges are: implementation, diversification of instruments and integration.

3.6. Commercial Policy

In the last fifty years, commercial/trade policy in the EU has become progressively more comprehensive due to treaty changes, stronger internal policies that provide the basis for common external policies, and the need to respond jointly to external challenges to EU policies. This implies a steady shift in the debate focus on trade from Member States to Brussels, a trend which was confirmed by the Treaty of Lisbon. This strengthening of the EU in trade has not translated into an ability to shape the multilateral trade agenda, given the diffusion of power in a more multi-polar global trading system. As a result, EU trade strategy has reverted to the use of preferential agreements as well as the pursuit of a comprehensive multilateral rules-based system to pursue its aims.

The dimensions of EU commercial/trade policy:• Is influenced by liberal arguments favoring unilateral liberalization (it only unilaterally offers

preferential market access or zero tariffs for least developed countries);• EU bilateral trade policy takes the form of Association Agreements or free-trade agreements

with third countries;• Plurilateral agreements, such as the Agreement on Government Procurement (GPA) and

Agreement on Trade in Civil Aircraft, or various agreements on investment under the aegis of the Organization for Economic Cooperation and Development (OECD) are negotiated by the EU with like-minded or similarly developed countries on specialist topics;

• Multilateral dimension of the EU trade policy centers on the WTO = major agreements are reached through periodic rounds of negotiation, such as the Doha Development Agenda;

• EU trade policy includes the application of commercial instruments (antidumping and countervailing duties to counter unfair practices of firms selling into the EU market below the cost of production or being subsidized by their governments).

The trade policy process:• The Commission has emerged as the sole voice for the EU in international trade negotiations,

in which it must reflect the interests of the Member States;• The Council decides on the EU’s objectives and the Commission negotiates.

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An interesting figure proposed by Walace, Pollack and Young (2010), describes the EU decision-making process for multilateral trade negotiations prior to the Treaty of Lisbon:

Fig. no. 3.1: EU decision-making process for association agreements (after Wallace, Pollack, Young, 2010, p. 393).

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42

The EU decision-making process for anti-dumping measures is well illustrated by the same-authors:

Table no. 3.2.: EU decision-making process for anti-dumping measures (after Wallace, Pollack, Young, 2010, p. 395).

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3.7. Justice and Home Affairs

The control of entry and residence within, a national territory, citizenship, civil liberties, law, justice and order lie very close to the core of the state. Nevertheless, the permeability of borders in Europe has prompted cooperation among governments, and in less than twenty years, justice and home affairs (JHA) have moved from a peripheral aspect to a focal point of European integration. Cooperation among national agencies concerned with combating crime, fighting terrorism, managing borders, immigration and asylum, together with the judicial and legal implications of an increased cross-border movement, has thus been gradually moved from loose intergovernmental cooperation to more supranational governance within EU. These developments continue to be marked by reservations and arguments about the role of EU institutions, resulting in a hybrid institutional structure, and policy measures which are riddled with delicate compromises and flexible arrangements among Member States governments.

The fragmentation of cooperation in JHA is also reflected in the multiplication of actors dealing with its development, both inside and outside formal EU structures. The decision-making in justice and home affairs after Maastricht is well designed by Wallace, Pollack and Young (2010):• Initially justified in limited terms as compensatory measures to the abolition of internal

border controls, cooperation in JHA, now metaphorically framed as the creation of an “area of freedom, security, and justice”, has been elevated to a central objective of the EU;

• Beyond these symbolic steps, integration in these sensitive fields of state sovereignty remains constrained by multiple tensions and difficult compromises;

• Among these tensions, the relationship between integration through increased harmonization and centralized EU structures, on the one hand and through enhanced coordination of national structures, on the other, remains unsettled.

3.8. Foreign and Security Policy

Diplomacy and defense are part of the core of state sovereignty. The EU developed as a self-consciously “civilian” power, with European security provided through the NATO under US leadership. Policy cooperation has therefore developed under contradictory pressures: France and, intermittently, Britain have sought to use EU to reinforce their international strategies; the Commission has worked to expand its limited competences in the external policy; other national governments have welcomed the additional international standing that EU cooperation provides, while resisting providing the resources needed for the project of power.

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There is a little agreement on what a EU common foreign policy should be about. National political cultures differ widely on appropriate international roles. Intensive transgovernmentalism therefore remains the dominant mode of policy-making, with institutional development and capability-building emerging painfully from response to external crises.

Since the entering in force of the Treaty of Lisbon (December 1st, 2009), European Union is a juridical international actor, has a European External Action Service, and concentrates its foreign policy under the leadership of a High Representative of the European Union for Foreign Affairs and Security Policy(HR), on the following areas:• Common foreign and security policy;• Development and cooperation – Europe Aid;• European neighborhood policy;• Global challenges;• Non-proliferation and disarmament;• Crisis response;• Human rights;• Humanitarian aid;• Cooperation with industrialized countries;• International and regional organizations;• Conflict prevention, peace building and mediation.

The European Union (EU) currently has ten Special Representatives (EUSRs) in different countries and regions of the world. The EUSRs promote the EU’s policies and interests in troubled regions and countries and play an active role in efforts to consolidate peace, stability and the rule of law.

The EUSRs support the work of the High Representative of the Union for Foreign Affairs and Security Policy (HR), in the regions concerned. They play an important role in the development of a stronger and more effective EU Foreign and Security Policy (CFSP) and in the Union’s efforts to become a more effective, more coherent and more capable actor on the world stage. They provide the EU with an active political presence in key countries and regions, acting as a “voice” and “face” for the EU and its policies .

• The policy-making process is policy cycle, composed from: agenda-setting, policy formulation, policy decision, implementation, feed-back, evaluation;

• The players in the European policy process are: politicians, bureaucrats, and interest groups;• For accession negotiations, the most important policies are: Internal Market, Competition,

Economic and Monetary Union, Common Agriculture Policy, Environment Policy, Commercial Policy, Justice and Home Affairs and Foreign Policy and Defense.

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45DECISION-MAKING IN THE E.U.

CHAPTER 4 - Decision-making in the E.U.4.1. Choosing What (not) to Do4.2. Executive Politics: Delegated Decision-making4.3. Legislative Politics or International Negotiations?

4.3.1. Legislative Politics in the European Parliament4.3.2. Decision-making in the Council4.3.3. Inter-institutional Power Dynamic

4.4. Judicial Politics4.5. Implementation of Decisions

454748494949505253

CHAPTER 4

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DECISION-MAKING IN THE E.U. What makes the EU “novel, interesting and worthy” for study is “its unique combination of national and supranational rules” (Begg, 1996).

A decision is not the same as a policy: action (or inaction) by public authorities facing choices between alternative courses of public action. When any choice is made, the result is a decision. All policies are a product of decisions about what to do, how to do it, and how to decide what to do. Decisions are the building blocks of policies.

European Union is a “unique system of multi-level governance”. The term governance is rarely defined very clearly. It could be defined as “the imposition of overall direction or control on the allocation of valued resources”. Synthetically, it is the result of a mix of factors: political leadership, state-society relations, institutional competition, electoral politics, etc. (Nugent, Paterson, Wright, 1999).

LEVEL Decision type Dominant actors Example

Super-systemic History-making

European Council; governments in IGCs;

European Court of Justice

Endorse white paper on internal market

Systemic Policy-setting

Council; COREPER; European Parliament (under co-decision/ ordinary legislative

procedure)

Agree directives to create an internal market for

motorbikes

Sub-systemic Policy-shaping

Commission;Council working groups;

EP committees

Propose that all motorbikes licensed in the EU must

observe specified power limits.

Table no. 3.2.: EU decision-making process for anti-dumping measures(after Wallace, Pollack, Young, 2010, p. 395).

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4.1. Choosing What (not) to Do

Decision-making is linked to domestic contexts taking place through highly institutionalized procedures, including voting, while decision-making in international relations usually takes place by consensus:• These differences are a boon when it comes to explaining decision-making in the EU;• Are linked with the variation of policy-making across policy areas: from unanimous decision-

making among Member States (in foreign and security policy) to decision taken on the basis of qualified majority voting (QMV), in conjunction with the EP on a proposal from the EC (with many combination between);

• Some aspects of EU decision-making have similar features to the executive and legislative politics of domestic policy-making, while others are similar to international negotiations (Wallace, Pollack, Young, 2010).

Following Allison models of decision-making, there are three competing models of decision-making:• Intergovernmentalism (with Member States controlling decision-making);• Pressure politics (with decisions determined by “grass-roots, interest group and parliamentary

pressure”);• “Elite networks”.

The analysis of decision-making in the EU :• Is rooted primarily in “new institutionalism”: historical institutionalism, rational-choice

institutionalism and sociological institutionalism (Hall, Taylor, 1996, Aspinwall, Schneider, 1999, Peters, 1999, Pollack, 2004);

• The historical and rational choice variants tended to be applied more frequently to studies of policy-making;

• Sociological and rational-choice institutionalist approaches have been applied to analyses of decision-making in the Council of Ministers.

The main three politics are:(a) Executive;(b) Legislative;(c) Judicial.

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4.2. Executive Politics: Delegated Decision-Making

• Is more often associated with providing political leadership and overseeing the implementation of legislation;

• Comparative politics and international relations literature considers the decision to delegate responsibilities;

• The focus is on delegating the decision-making responsibility towards the executive bodies;• The benefits of delegating decision-making are considered to be particularly pronounced

under certain circumstances, significant need for policy-relevant expertise due to technical or scientifically complexity of a policy area (Wallace, Pollack, Young, 2010);

• The EU specialized agencies (for ex.: European Medicines Evaluation Agency) have been given the task of providing expert advice to the Commission, which formally takes decisions (Eberlein, Grande, 2005);

• The delegation of decision-making is more likely to happen where doubts about politicians’ commitment to a policy could undermine its effectiveness;

• The problem of commitments not being credible is likely to be pronounced when there is a conflict between short-run costs and long-run benefits (such as monetary policy);

• Decision-making may also be delegated in order to make it harder for successors to reverse the policy;

• Sociological institutionalists contend that delegation occurs because it is perceived as a legitimate and appropriate institutional design. Thus, institutional designs are copied through processes of emulation and diffusion;

• Where decision-making is delegated, the different views of bureaucratic decision-making prevail;

• One view stresses the importance of technical expertise and legal mandates and sees value in isolating decision-makers from political pressures, so that the decisions can be taken for the greater good rather than for the benefit of the powerful ones;

• The second view comes from the analysis of US foreign policy, which depicts bureaucratic politics as bargaining among different sections of the executive with different preferences. In this view, decisions reflect compromise and consensus among participants. Much of the European integration literature has treated the Commission as if it is a unitary actor focused on its influence relative to the Member States;

• An important implication of the principal-agenda approach is that the bureaucratic agent is not completely free to take decisions, but it is constrained by the principals’ preferences. Any analysis of Commission decision-making must consider what authority has been delegated to it and how its preferences relate to those of the Member States on the issue in question (Wallace, Pollack, Young, 2010);

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4.3. Legislative Politics or International Negotiations?• The legislative politics of the EU, especially in the EP, is arguably more closely analogous to

that of the US than those of most EU Member States (Hix, 2005, McElroy, 2007);• Despite its legislative role, the Council appears to operate in many respects like an international

negotiation framework.

4.3.1. Legislative Politics in the European Parliament• The theory of “minimum-winning coalition” is commonly applied to EU decision-making.

A minimum-winning coalition, by involving a minimum number of votes needed to secure victory, means that there are fewer interests to accommodate and gives the members of the coalition, particularly those decisive in creating a winning majority, greater influence over the policy;

• The EP has had a tendency to form oversized voting coalitions, ostensibly to increase the EP’s influence relative to Council;

• The EP is a supranational legislature, in which electoral connections are notably weak, much attention has been paid to what motivates parliamentarians’ voting behavior (McElroy, 2007). The best predictor of MEP voting behavior is not nationality, but MEP’s “party group” (Kreppel, 2001).

4.3.2. Decision-making in the Council

There is a great debate on how the Council takes decisions:• Theories of coalition formation have also been extensively applied to the Council of Ministers,

at least when QMV applies;• Some scholars have elaborated formal models of Council voting to establish the relative

bargaining power of various Member States (Bueno de Mesquita, Stockman, 1994, Hosli, 1994, Felsenthal, Machover, 1997);

• The relative preferences of Member States’ governments are relevant;• Governments with preferences close to the center of the range of preferences on a given

issue are more likely to be in a winning majority independent of their formal voting weight, while other governments may be “preference outliners”, and therefore more likely to be isolated in the EU decision-making;

• The Member States holding the presidency has extra influence, through its capacity to shape the agenda and by exploiting its superior information about the positions of the other Member States when the final decision is taken (Schals et al., 2007, Thompson, R, 2008);



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• Only a minority of legislative decisions are taken by ministers in the Council, with most reached by consensus among officials;

• Even when QMV applies, the Council tends to seek consensus whenever possible, so that the models of procedures, such as minimum–winning coalitions, appear to provide a poor guide to understanding daily practice in the Council even in those policies in which voting occurs (Hayes-Renshaw, Wallace, 2006).

Bargaining models:• Perform better at predicting decisions (Schneider et al., 2006);• Policy is agreed through a process of identifying an outcome that makes none worse off

or through the use of issue linkage, inducements or threats (Putman, 1988); bargaining outcomes, whether among Member States, among coalition partners, or in industrial relations, are expected to reflect the relative power of the actors, which, in turn, is shaped, by their “best alternative to negotiated agreement” (BATNA);

• A particular variant of bargaining analysis is Fritz Scharpf ’s (1988) “joint decision trap”, in which there is no solution that all veto players prefer to the status quo;

• In international negotiations = highly institutionalized settings, of which EU is a prime example, cooperation is facilitated because the participants are aware that they will be interacting repeatedly in the future and as their experience of successful cooperation accumulates (Peters, 1997). This can generate “diffuse reciprocity”, in which governments acquiesce in the short run in the expectations of favorable consideration of their concerns at some point in the future (Keohane, 1986);

• Being able to accommodate diffuse reciprocity may be one of the key reasons why bargaining models are better at predicting policy-making in the EU than procedural models, which are blind to iteration (Schneider et al., 2006).

4.3.3. Inter-institutional Power Dynamic• There are a few policy areas (foreign and security policy, justice and home affairs) in which the

Council is essentially the sole decision-maker (in the most areas of EU policy, the Commission and EP have decision-making roles);

• EP’s influence in the decision-making process is much greater under the co-decision procedure than under the cooperation procedure, arguably to the extent that it is a co-legislator with the Council (Schneider et al., 2006);

• The Commission is considered to have lost influence as the EP has increased his own (Thompson, Hosli, 2006).

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• The formal powers of the EU’s institutions and the decision rules in the Council matter because the more actors there are that can block a decision (“veto players”), the harder it is to reach an agreement;

Fig. 4.1.: Chart of the EU decision-making procedure (source: “A Handbook of EU-related Issues.Chapter 27-Environment”, Skopje, 2012, p. 123).



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• If there is to be an agreement, it must be acceptable to all veto players, which means that it must accommodate the concerns of the actor that is least enthusiastic about change.

In the EU there are many veto players: • The Commission may choose not to advance a proposal;• Under co-decision either the EP or the Council can block legislation;• Under unanimity each member state is a veto player;• And under QMV a minority of states can block decisions;• The need to accommodate so many veto players in order to adopt a policy led Simon Hix

(2008a) to characterize the EU’s as a “hyper-consensus system of government”.In a high consensual process, securing agreement requires a potent coalition across the key decision-makers. This requires a coalition across two levels of governance:• Among the EU’s institutions • Within the Member States.Constructing such coalitions is difficult and demanding (Wallace, Pollack, Young, 2010).

4.4. Judicial Politics

• In the EU, domestic political process of implementation is supervised by the Commission, aided and abetted by societal actors and member states’ governments, and may be subject to adjudication before national or European courts (Tallberg, 2003);

• The European legal order is much more highly developed than those commonly found among states;

• Beyond the integration-centric question of the independence of the ECJ, there are a number of aspects of judicial politics that are more common to comparative politics than international relations (Conant, 2007);

• One concern is that actors are more able to take advantage of, is the opportunity to challenge national policies under EU law;

• An increasing number of powerful political actors have tended to make more and better use of litigations in order to challenge the policies which they dislike (Conant, 2007);

• The direct implication of Court ruling tends to be narrow, requiring from the Member State governments to accommodate only the specific requirements of the judgment (although the government may extend the implications to other similar circumstances);

• The implications of court judgments may be developed and exploited by political entrepreneurs, as the European Commission famously acted in developing the concept

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of “mutual recognition” on the basis of ECJ’s Cassis de Dijon ruling (Alter and Meunier-Aitsahalia, 1994).

4.5. Implementation of Decisions

Once a decision has been taken, further steps are usually required in order to put it into effect. There is a difficulty in reaching agreements in the EU, and that makes implementation important, because decisions often contain compromises and “vague language” (Wallace, Pollack, Young, 2010). Many EU decisions (in the form of directives) must be incorporated/transposed into national laws before they are translated into practice by national bureaucracies. Thus, there is a very significant component of decision-making in the implementation phase of EU policy-making.

The analysis of implementation in the EU context:• Is concerned with EU’s internal policies, which occur within a legal hierarchy;• Different internal policies, target the behavior of different types of actors in different ways;• For some policies (national or EU) taking the decision and implementing it, are essentially the

same thing: no steps beyond taking the EU-level decision are required;• In both EU-implementation and IR-compliance literatures there is an increasing attention

given to the impact of domestic politics on whether and how international obligations are translated into policy change (Young, 2009);

• Whether and how implementation (compliance) occurs depends on the preferences of key societal actors and the governments regarding the new obligation relative to the status quo, whether any of those opposed to implementation are “veto players”.

Three crucial implications emerge from the analysis of policy implementation in the EU:1. The impact of EU decisions, in terms of both costs and associated political and administrative

challenges, varies among Member States (Borzel, Risse, 2007);2. The Member States adopt very different national policies in order to implement “common”

EU policies;3. The Member States do not always comply with EU rules (Wallace, Pollack, Young, 2010).

The student of EU decision-making must be concerned with explaining a range of different decisions taken at different levels in a multi-level system of governance.

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Co-decision/Ordinary Legislative Procedure

Under co-decision/ordinary legislative procedure, the Council shares legal responsibilities for legislation jointly with the European Parliament, with the EP and Council entering into direct negotiations if they cannot agree on a proposal. Negotiations take place in formal “conciliation committees”, in which the Council and the EP are equally represented. If a joint text is not approved by a Conciliation Committee, the act falls. Simply, the co-decision/ordinary legislative procedure gives EP the power to veto any proposal that falls under its auspices.

• Comparative-politics approaches are better suited to explain the EU-level executive decision-making and the politics of the European Parliament;

• Insights from IR, albeit accommodating the highly institutionalized nature of the EU, are most useful when trying to understand decision-making in the Council;

• The first stage of policy implementation within the EU (transposition) is illuminated better by international-relations approaches, although how the policies are actually translated into practice is the purview of comparative politics;

• The actors involved in the management of the enlargement process and especially in the progress of accession negotiations are interested in finding out the way of reaching the consensus and agreement at EU level and its institutions.

!

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CHAPTER 5 – European Accession Negotiations5.1. Theory and Practice of Negotiation5.2. Negotiating the European Union5.3. The EU Enlargement Policy5.4. Negotiating the European Union Accession

5556576062

CHAPTER 5

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EUROPEAN/ ACCESSION NEGOTIATIONS

5.1. Theory and Practice of Negotiation

• Within the realm of international relations, a diplomatic negotiation is central to the functioning of the system of nation-states that has evolved over time;

• This type of interaction is distinguishable from the transnational negotiations between non-state entities, such as those taking place between firms operating in today’s global economy;

• Traditional definitions of diplomatic negotiations stress official state-to-state exchanges and tend to focus on the roles of important individual players – presidents, prime ministers, foreign ministers, ambassadors;

• Negotiations are studied from a variety of disciplinary perspectives, and students of international negotiations have drawn on insights from diplomatic history, economics, management, sociology, anthropology, social psychology, law and other fields;

• Negotiation is a central component of national policy-making processes from setting agendas, to determining what issues are to be addressed by policy makers, exploring options, finding solutions and securing needed support from relevant parties in order to ensure that planned policies are sustainable;

• Negotiations are a vehicle of communication and stakeholder management;• Negotiations can play a vital role in assisting policy-makers to obtain a better grasp to the

complex issues, factors and human dynamics behind important policy issues;• Negotiation processes are critical for policy-making in democratic societies, a factor with the

potential to shape policy outcomes and to influence which policies are implemented and how;• One could conceptualize a model that recognizes the importance of negotiation theory and

skills across the core phases – agenda setting, policy analysis, formulation, implementation, and evaluation – of the policy cycle (Tanya Alfredson et al., 2008);

• Henry Kissinger defined negotiation as “a process of combining conflicting positions into a common position, under a decision rule of unanimity” (Kissinger, 1969);

• Theorists differ on the question of how to categorize the main schools of thought in negotiation;

• Daniel Drukman (1997) describes the main schools of thought in negotiation theory as corresponding to four approaches to negotiations: negotiation as puzzle solving, negotiation as a bargaining game, negotiations as organizational management and negotiation as diplomatic politics;

• Structural approaches to negotiation find “explanations of outcomes in patterns of

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relationships between parties or their goals” (Zartman, 1976);• Strategic approaches to negotiation have roots in logics and mathematics, decision theory and

rational choice theory, and also benefit from major contributions in the area of economics, biology and conflict analysis;

• Behavioral approaches emphasize the role that the personalities of the negotiators or the individual characteristics play in determining the course and outcome of negotiated agreements;

• The integrative approach to negotiations has roots in international relations, political theory, research on labor disputes and social decision-making (Tanya Alfredson et. all, 2008).

5.2. Negotiating the European Union

• The European Union has been described as a “negotiated order” (Smith, 1996), a “permanent negotiation institute” (Bal, 1995) and a “negotiation marathon” (Kohler-Koch, 1996);

• The EU policy process is dependent on negotiations as a mode of reaching agreements on, and implementing common policies;

• The EU governance consists of negotiation and compromise among Member States, and European institutions. ”It is possible to define almost everything that goes on in the EU as “negotiation” (Elgstrom, Smith, 2000);

• The European integration process is a product of negotiations. The European negotiation - as a process, as a system, as an order - deals with interdependence and the existence of both common and divergent interests. The EU as a community has its negotiation model – the European negotiation - which develops the consensus culture (Lempereur&Colson, 2008);

• The European negotiation process: ”a communication process, where actors send signals to each other in order to influence the expectations and/or the values of other party”(Elgstrom, Smith, 2000);

Fig.no. 5.1.: A micro-model of the EU negotiation process (after Conceicao-Heldt, 2002, p. 19)

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• The European negotiation system: 9 Is highly institutionalized; 9 Is permanently linked and continuous; 9 The interdependence of actors, regularities of interactions, rules and procedures; 9 Formal negotiations are linked to informal negotiations; 9 Links between internal levels, sectors, and external negotiations.

The European negotiation order:• Problems shaped by the distribution of capabilities;• Problems emerging from the institutional structure;• Important role for “reigning ideas” in the form of elite consensus;• The EU negotiation external game takes place in parallel with domestic oriented games;• There are two main intergovernmental negotiations in the EU: treaty revision and enlargement

negotiations - the Intergovernmental Conferences(IGCs) have been conducted at four different levels:1. Heads of state and government;2. Foreign ministers;3. Ambassadors;4. Technical meetings, but the negotiations were official only at the political levels of foreign

ministers and heads of state and governments (Beach, 2005).• The European negotiations “are not one-shot exercise, but a repeated game, in which the

interaction between actors will continue in the future and is influenced by past choices”(da Canceicao-Heldt, 2002);

• Paul Meerts describes eight main characteristics that distinguish the European negotiations from other international negotiation processes (Meerts and Ced, 2004):

1. (Intervention) of national and international negotiation processes;2. Most of the issues in the European negotiations are internal questions rather than

external;3. The complexity of the internal European negotiation process absorbs the attention

of the Member States;4. EU negotiation process-both within member states and with the outside world;5. Continuity of the European negotiation process;6. European negotiation process with so many actors and issues suffers from a lack

of transparency;7. European negotiation process creates an integrated-negotiation network;8. The EU negotiation process is based on more than a community of interests;” it

is based on a community of values as well.

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• During the EU negotiation process, stakeholders change their initial positions into the positions they endorse in the final stage; the position shifts occur frequently because of compromise and exchange: ”The compromise solution then approximates an outcome that optimally weights the different interests of all actors involved” and “the exchange deals involve one actor shifting its position on one issue in the direction of other actor, in exchange for a shift in the position of the other actor on the other issue towards its position”(Arregui et al., 2004);

• Moravchik and Vachudova (2003) underlines the aspect of “asymmetrical interdependence” of EU negotiations, and the fact that “specific interstate concessions and compromises tend to reflect the priorities of the EU’s core countries, and disproportionately the most powerful among them, even as more peripheral countries benefit as much or more overall.”;

• Former French minister for European Affairs, Jean–Pierre Jouyet argues in favor of a dynamic convergence of national interests and European interest as being the first rule of European negotiation (Lempereur&Colson, 2008). According to Alain Lempereur (Lempereur&Colson, 2008), the characteristics of successful European negotiations are:

The same author recommends few “ingredients” to a successful European negotiator (Lempereur&Colson, 2008):• The uniqueness of each situation;• The relational competences;• The search for common results;• The knowledge of the file;• A good system of economic intelligence;• Key and secondary objectives;• A basic strategy.

1. Communicating a clear strategically vision;2. Preparation, establishing an agenda;3. Excellency in communication at the table and beyond;4. Elaboration of an effective mandate and discovering the one that the other party has;5. Maintaining a relation of trust with the other negotiators; 6. Regardless to the cultural dimension;7. Proceed by concentric cycles, like in multilateral negotiations;8. Rely on the underlying motivation of the parties;9. Searching the optimal solutions for all;10. Using for all the valuable criteria for justification; 11. Consider solutions outside the table.



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• Former Minister of Foreign Affairs of the Kingdom of the Netherlands, Dr.Bernard Rudolf Bot suggests ten commandments for the European negotiator (see Meerts and Cede, 2004):

1. “Retain the trust of those you represent;2. Make it clear that you appreciate the position of other negotiating parties;3. Know your dossier well;4. Maintain good networks;5. Cultivate a feel for the balance of political power and the ability to spot a political bluff;6. Guard against your opponents’ losing face;7. Learn to act a part;8. Build up your stamina;9. Make concessions in time to obtain a quid pro quo;10. Be yourself; and always hold fast to your own style of negotiating.”

5.3. The EU Enlargement Policy• Monnet and Schuman said that the enlargement and deepening of the Community represented

a continuous process (Annex no.2);• The last enlargement wave has changed the EU political scene, being one of the most

important events in the contemporary history of Europe;• EU has been and still is a political project and has kept negotiating its political objectives since

1989, the EU developed a policy framework for enlargement;• EU enlargement determined many political controversies, but negative feelings are not a new

phenomenon in Europe; the enlargement process is a political process but was presented as a technical process;

• According to Tamminen (2012), ”after the French and Dutch “No”, in 2005, enlargement became a “scapegoat” of the political elite to explain the discomfort of the European public opinion that led to the failure of the constitutional project: ”enlargement became in fact an object of blackmail”;

• Enlargement of the EU follows the constructivist approach of the European identity;• Enlargement process is not a one-way street, because both entities change in the process;• Enlargement supports the reunification of the European continent, the power of EU, the

solidarity of the Member States and the candidate countries, the consolidation of European interest and common values;

• “EU membership has remained a matter of net national interest” (Moravcsik, Vachudova, 2003) for the applicant countries which expect to gain tremendous economic and geopolitical benefits.

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Fig. no. 5.2.: EU enlargement: formal accession process (after Scheneider, 2009, p. 17).



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5.4. Negotiating the European Union Accession

• A state accession to a regional/international organization demands a negotiation process in order to get the agreement on the terms, conditions and timetable = the accession negotiation involves the organization and the candidate country on constructive negotiation process;

• The accession negotiations are a very peculiar type of negotiations, with their own characteristics (Tomozeiu,2010):• win-win,• asymmetrical,• high prescriptive;

• Among the basic characteristics of accession negotiations are (Nicolaides et al., 1999):

• A process of discovery (”the two sides inform each other about what they need or what they offer”);

• Strategic interaction (”the two sides seek to influence each other and shape each other’s behavior for the purpose of achieving the best possible outcome for themselves”);

• A process of exchange (”each side tries to shape the other’s behavior by offering or conceding something”).

• The format of accession negotiations: • Bilateral (candidate state - Commission; candidate state-member state, member state-

member state);• Multilateral - Council;• Public diplomacy - public opinion, image of candidate state abroad, public support

(”track-two diplomacy”);• ”Third party” negotiation - relations with a powerful country in order to influence the

nature or speed of negotiation.• The accession negotiation process has been not so much modified in the last decades, but

rather has developed new steps in-between the main stages of the accession process-today, we have a “new approach” to accession negotiations (COM/2012/600 final), the Member States „pay more attention to details in the process and in some cases ”micro-manage” the negotiation” (Tamminen, 2012) = for most chapters, the EU sets closing benchmarks which need to be met by the candidate country (the chapter 23 - „Judiciary and fundamental rights”) - and chapter 24 - „Justice, freedom and security”- would be tackled in the beginning of the negotiation process, based on the action plans, with interim benchmarks to be met, and solid track records);

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• The European Commission is “the Guardian of the Treaties” and must make sure that the agreements are in line with the EU legislation = the screening report recommend to either open the negotiations or to require certain conditions (opening benchmarks should be first met); the progress reports published by Commission serve as a reminder of the fields where reforms are still required;

• The Commission takes care of monitoring of negotiation processes and the fulfillment of assumed commitments = DG Enlargement has the technical tools to do that, and the Member States are in the political lead; the Commission’s role is to identify acceptable compromises both to Member States and candidate state;

• EU institutions have an important role in accession negotiations (the Commission, for ex., providing draft negotiating positions and the European Parliament having to approve the Accession Treaty, only Member States and candidate countries are formal parties to the accession negotiations (Beach, 2005);

• The duration of the accession negotiation depends on the speed of internal preparation of the candidate country, but also due to political reasons in the Member States (Tamminen, 2012). Sedelmeier (2010) said that accession negotiations might not necessarily lead to accession;

• The accession negotiation is a political and diplomatic process, which influences the international relations, changes the international institutional architecture, also provides diplomats with new options, tools and means, and expands the supranational level with its own interests, rules and constraints;

• Accession negotiations have several purposes (Nicolaides et al., 1999):

• To adjust the Treaties in order to account for the participation of new members;• To adjust the secondary legislation in order to make it applicable to the new

members;• To define, if necessary, exceptions to the general Treaty principles;• To determine the number, length and nature of transitional periods;• To set the applicant’s contribution to the Community budget and to define any

other budgetary arrangements;• To suggest the size of the allocation of structural and cohesion funds and any

other forms of EU financial assistance;• To define the timing and nature of participation of the new member in the

common policies;• To determine any necessary adjustments to the common policies;• To consider any other measures to Europeanization process.



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• The final outcome of accession negotiations can be shaped in the following manner:a) The use of legal and/or technical arguments, proving that the candidate country fulfills all benchmarks, criteria and commitments taken during the negotiation stages;b) Promoting mutual interest - each side tries to persuade the other;c) Use of power - when the legal/technical arguments are unsuccessful and the appeals to mutual interest go unheeded, the party tries to impose conditions on the other side or to deny something that other side wants - it does not mean the use of physical force (Nicolaides et al., 1999).

Principles of the Accession Negotiations: The guiding principles of accession negotiations were established in the first enlargement round:• The EU expects a candidate country to adjust unilaterally to the current EU law;• What is negotiable is rather limited: a timetable for adopting the acquis, rather the permanent

derogations;• Candidate country can hope to get transition periods (Member States want to reduce their

own costs through transition periods);• The general negotiating principles took the texts drawn up in December 1992 for the previous

enlargement as a basis, and has incorporated the necessary elements of the post - Cold War developments and the specific features of the applicant countries:• The accession implies full acceptance by the applicant country of the actual and potential

rights and obligations of attaching to the Union system and its institutional framework, known as acquis of the Union;

• The acquis includes:a. The content, principles and political objectives of the Treaties;b. Legislation adopted pursuant to the Treaties, and the case law of the Court of Justice;c. Statements and resolutions adopted within the Union framework;d. Joint actions, common positions, conventions signed, resolutions, statements and other acts agreed upon within the framework of justice and home affairs;e. International Agreements concluded by the Community and those concluded among themselves by the Member States with regard to Union activities.

• Any specific arrangements under the Association Agreements which depart from the acquis of the Union cannot be considered as precedents in the accession negotiations;

• The approach of the Union in relation to the common foreign and security policy and justice and home affairs, including the Schengen acquis. In accordance with the conclusions of the

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Copenhagen European Council, the Union should be capable of absorbing new members, while maintaining the momentum of European integration;

• The enlargement should strengthen the process of continuous creation and integration in which the Union and its Member States are engaged;

• The acceptance of the rights and obligations by a new Member State may give rise to transitional measures and technical adjustments, but these cannot, under any circumstance, imply changes to the rules or policies of the Union;

• Negotiations with the different applicant countries will be conducted “on the basis of the same principles and criteria, but separately and according to the individual merits of each applicant country”;

According to the Enlargement Strategy agreed by the December 2006 European Council, which suggested the “new approach” of accession negotiations, and the institutional changes of the Treaty of Lisbon, the current principles governing the accession negotiations include several distinctive sentences, such as:• ”The shared objective of negotiations is accession. By their very nature, the

negotiations are an open-ended process whose outcome cannot be guaranteed beforehand.”

• “In the field of CFSO, the High Representative is responsible, in close liaison with the Member States, and the Commission where appropriate”.

• “Negotiations are opened on the basis that /the candidate country/ respects and is committed to promoting the values on which Union is founded, referred to in Art.2 TEU, namely the respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities”.

• “In the case of a serious and persistent breach by /the candidate country/ of the values on which the Union is founded, the Commission will, on its own initiative or on the request of one third of the Member States, recommends the suspension of negotiations and propose the conditions for eventual resumption. The Council will decide by qualified majority on such a recommendation/…/The European Parliament will be informed”.

• “An overall balance in the progress of negotiations across chapters should be ensured. Given the link between the chapters “Judiciary and fundamental rights” and “Justice, freedom and security” and the values on which the Union is founded, a s well as their importance for the implementation of the acquis across the board, should progress under these chapters significantly lag behind progress in the negotiations overall, and



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after having exhausted all other available measures, the Commission will on its own initiative or on the request of one third of the Member States propose to withhold its recommendation to open and/or close other chapters, and adapt the associated preparatory work, as appropriate, until this imbalance is addressed”.

• “Enlargement should strengthen the process of continuous integration in which the Union and its Member States are engaged. Every effort should be made to protect the cohesion and effectiveness of the Union./…/The pace of enlargement must take into account the Union’s capacity to absorb new members, which is an important consideration in the general interest of both the Union and /the candidate country/”.

• “Parallel to the accession negotiations, the Union will continue its civil society dialogue/…/with the aim of bringing people together and ensuring the support of citizens for the accession process”.

• “In order to strengthen public confidence in the enlargement process, decisions will be taken as open as possible so as to ensure greater transparency. Internal consultations and deliberations will be protected to the extent necessary in order to safeguard the decision-making process, in accordance with EU legislation on public access to documents in all areas of Union activities”. (Accession Document, CONF-ME 2, AD23/12,27 June 2012).

• The EU negotiation principles with Montenegro attach the importance to the conditionality of the Stabilization and Association Process, the commitment to good neighborly relations, the development of closer regional cooperation, and the request to resolve any border disputes in conformity with the principle of peaceful settlement of disputes.

Rules, Norms and Procedures:• The procedures for accession of new members=according to the Treaty (Art.49 TEU);• The procedures for accession negotiations were set in the first Enlargement negotiations with

Denmark, Ireland, Norway and UK;• Increasing attention to the norms, rules and procedures in EU negotiation process since the

mid-1990s;• Member States negotiate in the organizational context of the Council and the European

Council, and take decisions trough alternative procedures and rules;• The Council is a complex normative environment and works according to a culture

of community, reciprocity, trust, mutual responsiveness, consensus, ”and a culture of compromise” (Tallberg,2008);

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• The rules and procedures govern the decision-making process in the EU, including intergovernmental conferences (IGC’s);

• The requirement of agreement with the Parliament constitutes a very important procedural aspect of European negotiation;

• Rational choice institutionalism, sociological institutionalism, and realism help us to understand the institutional design in the European negotiations, and the organizations, procedures, norms (according to rationalist approach of norms in European negotiations, the deviations from formal rules is interpreted “as an informal institution designed to facilitate decision-making through vote trading” (Klein 2008, in Tallberg, 2008).

The Substance of Accession Negotiations:• The accession to the EU implies the acceptance of the rights and obligations to the Union

and its institutional framework (the acquis communautaire);• The acquis communaitaire is divided into 35 different chapters (for the previous accession

negotiations there were 31 chapters), and constitutes the substance of accession negotiations; the content of acquis is non-negotiable; the negotiation is about the timing and conditions of adoption and implementation of the acquis by the applicant country;

• There are 35 different chapters in order to:a) Ensure that the applicant country understands well the content and the obligations that is expected to agree with;b) Identify in each case the reservations which the applicant state might have concerning the acceptance of the acquis (Nicolaides et al.,1999).The acceptance of the rights and obligations arising from the acquis may necessitate some specific adaptations to the acquis, and sometimes the request for transitional measures;

• Transitional measures and specific arrangements agreed in the interest of the candidate country and of the Union;Specific adaptations to the acquis will be agreed “on the basis of the principles, criteria and parameters inherent in that acquis as applied by the Member States when adopting that acquis” (Accession Document, CONF ME 2,AD 23/12);

• The degree of difficulty of each chapter depends on the amount of time spent on it and the political level at which the differences were resolved;

• For the previous wave of accession negotiations, some authors used to divide the chapters in: “easy”, ”difficult” and “very difficult”. A Sigma-OECD analysis suggests a chapter-by-chapter approach in the following way:1. The “easy” chapters: Science and Research, Education and Training, Industrial Policy,

Statistics, EMU, Trans-European Networks;



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2. Chapters with negotiating problems of a limited significance: Customs Union, Company Law, Information Society and Media, Public Procurement, Foreign Security and Defense Policy, Financial Control, Regional Policy and Structural Instruments, External Relations, Judiciary and Fundamental Rights;

3. Chapters with some serious sectoral policy concerns: Free Movement of Goods, Intellectual Property, Financial Services, Taxation, Competition Policy, Social Policy and Employment, Establishment and Freedom to Provide Services, Energy, Transport, Common Fisheries Policy;

4. Chapters with some major negotiating problems: Agriculture and Rural Development, Food Safety, Veterinary and Phytosanitary Policy, Environment, Justice, Freedom and Security, Free Movement of Workers, Free Movement of Capital, Finance and Budget, Institutions (Sigma Papers 37, 2007).

• The candidate country will participate in the Economic and Monetary Union (as a member state) with a derogation;

• In the area of justice, freedom and security, the membership status implies the acceptance in full of the entire acquis, including the Schengen acquis;

• The candidate country must ensure, in all areas of the acquis, a strong management capacity of institutions, administration, judicial system in order to implement the acquis and European policies effectively “in good time before accession”;

• According to Nicolaides et al. (1999), the subjects which were perceived to be difficult are those requesting the definition of the transitional periods or derogations, those which were perceived “to affect fundamental national preferences or characteristics”, important national economic, commercial or social interests;

• The same Sigma analysis remembers that in the current accession negotiations “opening benchmarks” will apply to many chapters, including to so-called “easy” chapters(ex. the chapter on the Judiciary and Fundamental Rights where there is relatively little to negotiate, but EU may require serious improvements before allowing the chapter to be opened (Sigma Paper 37, 2007);

• The substantive accession negotiation starts after the Council has adopted a EU Common Position which is delivered by the Presidency to the candidate country.

Accession Negotiation Process:• An Intergovernmental Conference (IGC) on accession negotiations is established for each

candidate state, proving that the enlargement negotiation is essentially intergovernmental;

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the formal negotiating sessions take place in the IGC, and the more significant sessions are those at the “deputy” level, between the Permanent Representatives of the EU Member States and the Chief Negotiator of the candidate country.

The Process of Accession Negotiations (Nicolaides et al., 1999):• Commission presents acquis to the applicant: • acceptance of acquis in full;• acquis considered not applicable;• applicant requests exploratory talks =>position paper with reason for derogations/

transitional periods;• further explanation of acquis by the Commission

• position paper withdrawn;• applicant maintains views =>further negotiations.

• Commission prepares draft common position of Member States:• accepted by Council Working Group;• modified by Council drafting committee;• common position =>presented by Presidency to applicant (ambassadors or

ministers).• Consideration of common position:

• accepted by applicant;• rejected/modified by applicant =>further internal discussions among Member

States and Commission.• Consideration of revised common position =>agreement;• Agreement written into draft Treaty of Accession by the Commission and agreed by

the drafting group.• Acceptance of final documents => signing.See the Chapter 12 for the case of negotiating the Environment Chapter.

Stages:A. First stage of the accession negotiation is a multilateral screening process. During the

screening process the Commission and the applicant country undertake a chapter-by-chapter examination of the acquis. The analytical study of the acquis facilitates its future transposition within the national legislation, as well as showing the potential problems, which may arise during the accession negotiation. The screening process also analyzes the candidate country’s institutional structure, thus providing guidance as to its “re-shaping” or strengthening in order



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to ensure the implementation of the acquis. There is and a bilateral procedure of screening process, when the EU officials inform the authorities of a candidate country about the acquis content and implementation.

(Source: neighbours.populari.org/.../guidelines-chapt...)

• The assessment of the screening process is drafted by the Commission and presented as a screening report to the Council of the EU. The screening report constitutes the basis upon which the accession negotiation is formally opened on the particular chapter.

B. The second stage of accession negotiation is a bilateral one (Beach, 2005), between the Commission (having a mandate from the Council) and the candidate country. During this stage, the Commission analyzes the transposition and implementation status of the directives in each of the chapters, by the candidate country. Both Commission’s and candidate country’s views are written in the so-called Position Papers (the candidate country submits its position and the EU adopts a common position);

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• Negotiation positions include a description of the compliance with the acquis and its implementation. The negotiation positions are particularly important for the candidate countries, regarding the transition periods and derogations. In addition to the negotiating positions presented by a candidate country, the EU institutions may also require “additional information” regarding a particular subject or even entire chapter. The negotiating position may also be amended in different cases;

• A so-called Draft Common Position (DCP) is prepared by the Commission in order to reply to the candidate’s negotiation position (Nicolaides et al.,1999). The DCP is then discussed with the Member States (in the Enlargement Working Group of the Council) in order to achieve a common negotiating position for all Member States. This common negotiating position is drafted unanimously as a Common Position (CP) and is transmitted to the candidate country (the Presidency presents the CP to the Ambassadors - i.e. Permanent Representatives of Member States- and the Chief Negotiator/Minister of candidate country in so-called “negotiating conference”).

C. The final stage of accession negotiations is dedicated to the substantive bilateral negotiations between the governments of the EU member states, represented by the Presidency and the candidate country. According to Beach (2005), this stage of accession negotiations dealt with transitional periods, the financial package and date of entry. When a candidate country approaches the conclusion of negotiating all chapters, the outcomes of the negotiations are incorporated in a draft Accession Treaty, which states the conditions pertaining to the accession of the candidate country to the EU.

• Negotiations are studied from a variety of disciplinary perspectives, and students of international negotiations have drawn on insights from diplomatic history, economics, management, sociology, anthropology, social psychology, law and other fields;

• Negotiation is a central component of national policy-making processes from setting agendas, to determining what issues are to be addressed by policy makers, exploring options, finding solutions and securing needed support from relevant parties in order to ensure that planned policies are sustainable;

• The European integration process is a product of negotiations;• Enlargement process is a political process but was presented as a technical process;• The accession negotiation is a political and diplomatic process which influences

the international relations, changes the international institutional architecture, also provides diplomats with new options, tools and means, and expands the supranational level with its own interests, rules and constraints.

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CHAPTER 6 - Institutional Framework and Actors of the EU Accession Negotiation

6.1. Role of Government6.2. Inter-Ministerial Coordination6.3. Working Groups6.4. Parliament6.5. Civil Society and Interest Groups6.6. The Negotiation Team and the Chief Negotiator6.7. Diplomats and Experts/Professionals as Negotiators

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INSTITUTIONAL FRAMEWORK AND ACTORSOF THE EU ACCESSION NEGOTIATION

International and European institutions constitute “arenas for acting out power relations rather than independent constraints on state behavior” (Tallberg, 2008). The intergovernmental institutions reflect the distribution of state power in regional or/and world politics.

Though public and media attention directed at the EU generally focuses on history-making decisions (Peterson and Bomberg, 1999) and European Council summitry, what happens in Brussels represents only a small part of the efforts that national governments put into each stage of the “bargaining game” (van Keulen in Meerts and Cede, 2004) with the EU.

Taking into consideration the context of EU negotiation institutions, there is the expectation that the states should adopt organizations, procedures, and norms in order to meet the EU institutional models =>how functionally efficient or balanced are these in terms of distributional implications.The Council of EU and the European Council are the main EU negotiation institutions.

The Council

• As a negotiation body, as an institutional model;• Addresses issues such as: negotiation style, coalition formation and leadership;• Can be seen through the functional theories of international regimes;• Constitutes a permanent negotiation forum – Milzow (2008) says that the

Member States negotiate intensively themselves the issues related to the accession negotiations;

• Reduces the transaction costs of bargaining;• Distributes information among the parties;• Contributes to a convergence of expectations;• Extends the scenarios of the future;• Provides states with a powerful rational for its establishment and maintenance

(Tallberg, 2008);• The prescription that Presidencies should be neutral and impartial, should

act as “honest brokers” is not confirmed by the general literature of Council chairmanship.

INSTITUTIONAL FRAMEWORK AND ACTORS OF THE EU ACCESSION NEGOTIATION


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The European Council• Translates the need for political leadership;• Explains the sources of bargaining power and the degree of part politicization in

EU summitry;• A formal body of collective decision-making;• As “ultimate decision-maker” and “court of appeal” in complex or controversial

issues;• Offers the understanding of EU from “a pure power perspective” (Tallberg, 2008).

The European Commission• Plays a key role in the accession negotiations, by both drafting proposals for the

negotiating position (on behalf of EU), dealing with the day-to-day negotiations with the candidate countries, administering aid and assistance, and monitoring their progress in implementing the acquis and also in fulfilling the commitments taken during the negotiation process (“unofficial negotiator” with the candidate countries);

• Has had strong comparative informational advantages and has been seen to be more neutral than the Council Presidencies (Beach, 2005).

General Secretariat of the Council• Responds to rational functionalist terms =>helps states to solve informational

and distributional problems, providing expertise and mediation =>as a support structure;

• Has an assisting role both in the internal Council decision-making and in the external negotiations (assistant to the Council and Presidency);

• Drafts the common positions based upon the Commission’s proposals, and helps broker deals in the Council.

The European Parliament• Has a role in the internal reform process of both the EU and the candidate states;• Has became an increasingly significant political actor, but the main impact is

that of acting as the “conscience” of the EU, through the meetings of the Joint Parliamentary Committees;

• It can give opinions on specific issues of the negotiations;• Will take a greater role in the accession negotiations than in previous enlargement

wave (Sigma Paper 37, 2007).

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The internal accession preparation process requires: • A coherent institutional framework;• The harmonization and coordination of interests of the internal actors;• Prognoses concerning the development of the external negotiation environment;• The presentation of the negotiation position by the candidate country etc. (Goriţă, 2008).

An important feature of the negotiation process: coordinating the interests and actions of the four types of internal actors: • Political;• Economic;• Social;• Civil society.

Required dimensions of coordination: • Political coordination;• Policy coordination;• Process/technical coordination.

The coordination of institutional system generally includes: • The Government;• The Parliament (National Assembly);• Central coordination units;• The Permanent Representation in Brussels;• Working groups for the preparation of positions during the process of adopting legislative

proposals and other European Union acts (working groups for preparation of positions); • Other competent authorities.

6.1. Role of Government

The successful outcome of EU negotiations is often linked to the capacity to coordinate potentially conflicting political, administrative and nongovernmental views “at home” (van Keulen in Meerts and Cede, 2004).

Well co-coordinated (meaning the degree of centralization of national EU-related decision making) governments are likely to:



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• Be more efficient; • Have fewer conflicting and redundant programs;• Utilize scarce resources more rationally in order to achieve their policy goals (Kassim et

al,2000).A current approach in what concerns political coordination was, in the case of several former candidate countries, the creation of European Integration Committees headed by the Prime Minister (Estonia, Poland) or by the Minister of Foreign Affairs (Czech Republic). Alternately a higher role would be granted to the Prime Minister’s Office in general, or to the various coordination bodies (lead by secretaries of state: Hungary, Slovenia).

Policy coordination= two possible main approaches (Goriţă, 2008): • The designation of the Ministries of Foreign Affairs to conduct accession negotiations

(Czech Republic, Estonia, Hungary);• The creation of a special administrative institution (for example Ministry of European

Integration-Romania, Croatia) or a structure closer to the Prime Minister (Poland, Slovenia).When the institutional structure in charge of the development and the preparation of the accession negotiation process is placed under the authority of the Ministry of European Integration (the case of Romania), EU coordination acquires a two-fold dimension where: • The Ministry of European Integration ensures the coordination of policies and technical

processes (from the national interest perspective);• The Prime Minister’s Office is responsible for everything pertaining to political coordination

(Annex no. 3).

Such an approach presents various advantages: • An enhanced credibility in front of external actors: the risk of sending contradictory signals

to the outside is reduced; • The possibility for one and the same institutional actor to coordinate the internal preparation

process as well as all lobbying activities within the member states and the European institutions: positive effects on the negotiation process.

The negative side of this course of action would be:• Inter-ministerial management issues: when the Ministry of Foreign Affairs is unable to

efficiently take over the coordination of the internal preparation process as a result of a limited internal authority (when, for instance, the leader of the institutional negotiation structure only holds a position of secretary of state). In such circumstances the lack of a timely internal

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response in critical situations or at the level of the inter-ministerial management (respecting the commitments assumed in the negotiation process) would very much diminish the quality of the internal preparation.

As a general rule, the coordination process within the Member Sstates and the candidate country, would be assumed by major institutional actors (internal decision-makers). The latter must:• Be able to efficiently manage accession preparations;• Present a high degree of relevance in front of external actors (Member States, other candidate

countries, European institutions).

A cohesive decision-making framework:• Speeds up the achievement of a unitary position by the candidate country in the negotiation

process;

Increases the overall efficiency of the negotiation process - optimal when the functional utility of the institutional negotiation structure is attained. To this effect, the following elements are to be taken into account: • The types of inter-ministerial management;• Institutional authority; • External credibility;• The effectiveness of external-internal communication.

6.2. Inter-Ministerial Coordination

One very important aspect of the coordination of European affairs is that of achieving cross-sectoral alignment of the positions to be defended by national representatives (during working meetings parties/committees/ministerial formations within the EU Council and the European Council).

An implicit accession requirement for all candidate countries is a “direct institutional adaptation” as a result of the co-coordination of EU affairs and the implementation of its policies. Thus, before becoming full members of the EU and before having their own say in the shaping of the EU, candidate countries must incorporate EU policies into their respective laws and adapt institutionally (Annex no. 4).



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Essential institutional adaptation: inter-ministerial coordination of EU affairs in view of ensuring:• Efficient accession negotiations (due to their inter-sectoral and interdisciplinary nature);• Full EU membership.

Effective coordination at a national level: • Qualitative and prompt adaptations to the EU legislation, successful adoption of the acquis

communautaire;• Increases the negotiating weight of the candidate country; • Grants Member States the possibility to assert their interests at EU level.

National representatives, required to: • Act strategically and coherently at all levels of EU decision-making: only possible when there

is efficient inter-ministerial coordination; • Make decisions in relation to other national policy-making institutions and other relevant

actors (governmental and non-governmental).

In general, the coordination of European integration process is:• Organized hierarchically; • According to a functional division of responsibilities (van Kreulen in Meerts and Cede, 2004).

Similarities between various national models:• The formal link between the domestic level and Brussels: Ministry of Foreign Affairs (in

general); 9 Often cooperates closely with the ministries of economic affairs and/or finance

(Germany, Greece); 9 The MFA comprises special administrative units (EU matters responsible for the

reception of the new Commission proposals and for disseminating them within the national administrative structure).

• In almost all Member States, the formal authority for EU affairs= a special official for European affairs (junior minister/secretary of state – usually within the Ministry of Foreign Affairs);

9 Tendency: in many cases, EU policy coordination described by the interplay between centralized coordination (the MFA) and simultaneous sectorial specialization (line ministries).

• The creation, in response to the EU policy requirements (by almost all government departments) of:

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9 Special intra-ministerial EU units and coordination mechanisms ; 9 Bureaus within the permanent representation (Schout, 1997). 9 Tendency: these direct contacts between line ministries and officials from the EU

institutions (in addition to the direct transnational lines between experts) – undermine the traditional position of the MFA as “chief negotiator”, between the domestic and the international arena (Evans et al. 1993).

• In most Member States: individual government departments are in charge of preparing the instructions for the negotiations on special dossiers:

9 drafted through: a. negotiations with officials within the organization;b. intensive deliberations with other ministries involved.

9 Remark: coordination capacities and MFA competencies differ from country to country. 9 Metcalfe (1987) devised a standard of reference for measuring policy coordination

capacities, as to facilitate comparisons between Member States mainly assessing:a. communication and consultation between government departments;b. avoiding divergence;c. arbitration;d. prioritizing;e. strategy formation.

• Most national arrangements include inter-departmental coordination bodies (“special committees”- Denmark, “European correspondents”- Luxembourg) reuniting with periodicity civil servants from various government departments (meetings generally chaired by the MFA).

9 Remark: detailed legislation drafted at an expert level; politicized cases, political strategy: upper levels (van den Bos, 1991);

9 Tendency: “broader” issues, increasingly and more regularly dealt with by the heads of state or government of the member states.

9 Some Member States have a coordinating EU unit, within or adjoining the prime minister’s office: facilitates an overall view of the various activities of government relating to EU matters.



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Country Main coordinatinginstitution

Other importantcoordinating bodies

Parliament involvement,consultative bodies

BulgariaCouncil of Ministersspecial unit headed by a Minster for EU

Affairs

EuropeanAffairs Committee;Consultative Council under

the President’s office

Czech Republic

Ministry of Foreign Affairs

European Affairs Committee

Estonia

The Council of Senior Civil Servants

(CSCS) overseenby the Ministerial

commission chaired by the PM supported

by the Office for European Integration

of the Chancellery and the European Union Secretariat

Ministry of Foreign Affairs (responsible for accession negotiations,

Europe agreement)Ministry of Justice (laws and acquis compatibility)

European AffairsCommittee of the Estonian

Parliament (since 1997)

Hungary

State Secretariat forIntegration and

External Economic Relations at the MFA (SSIEER) assisted by

EU integration department;

Interministerial Committee for EU Integration (deputy

ministers)

European IntegrationCouncil; Ministry ofFinance, Ministry ofJustice (negotiations)

Coordination arrangements:State of EU affairs systems, 2003 (Dimitrova and Maniokas, 2003):

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Country Main coordinatinginstitution

Other importantcoordinating bodies

Parliament involvement,

consultative bodies

Latvia

European IntegrationCouncil European

Affairs Bureau(follows the European

Integration Bureau)subordinate to the

PM and to the State Chancellery

Council of senior officials; Foreign Affairs

Ministry together with the Secretariat

European Affairs Committee

LithuaniaEuropean Committee

under the Government of Lithuania

European affairsCommittee

PolandCommittee for

European Integration headed by the Minister for European Affairs

National Council forEuropean Integration –consultative body underPM with 7 consultative

sub-councils

Slovakia

MFA, department forcoordination of EU

policies, Cabinet Office(since 1998),

InterministerialCoordination Group

SloveniaGOBA, special body

under the Prime Minister in the

Government Office

Ministry of Foreign Affairs adopting

negotiation positions;GNT consultative

group of 9 Experts



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6.3. Working Groups

Working Groups (http://www.eu-pregovori.hr):• Have a central role in the preparations of negotiations on each individual chapter of the acquis

communautaire;• Take part in the analytical review and assessment of the harmonization of the national law

with the acquis communautaire (screening);• Take part in conceiving draft proposals of negotiation position;• Engage in dialogue with state administration bodies or other bodies designated as competent

authorities(line ministries and national/regional agencies) for individual chapters of the acquis communautaire as well as with the EU Coordinator of the relevant body;

Each working group has its own coordinator who manages the group’s activities in agreement with the member of the Negotiating Team in charge of coordinating a certain negotiation chapter.

Free Movement of Goods, Freedom of Movement for Workers, Right of Establishment and Freedom to Provide Services, Free Movement of Capital, Public Procurement, Company Law, Intellectual Property Law, Competition Policy, Financial Services, Information Society and Media, Agriculture and Rural Development, Food Safety, Veterinary and Phytosanitary Policy, Fisheries, Transport Policy, Energy, Taxation, Economic and Monetary Union,

Statistics, Social Policy and Employment, Enterprise and Industrial Policy, Trans-European Networks, Regional Policy and the Co-ordination of Structural Instruments, Judiciary and Fundamental Rights, Justice, Freedom and Security, Science and Research, Education and Culture, Environment, Consumer and Health Protection, Customs Union, External Relations, Foreign, Security and Defense Policy, Financial Control, Finance and Budgetary Provisions, Institutions.

Main negotiation chapters and their respective working groups:

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6.4. Parliament• Considerable variation in the scope of national parliamentary participation in the EU (van

Kreulen in Meerts and Cede, 2004) according to the constitutional structure and political practices typical to each member state;

• In the 1990s most parliaments established “subcommittees for European affairs” which have kept the national parliaments up to date about EU initiatives.

9 Remarks: due to the volume, urgency and technicality of EU policy making parliamentary involvement is, at an early stage, minimal.

9 Parliamentary discussions - limited to issues with great constitutional or budgetary implications (treaty changes, enlargement).

However:• Concerning the cooperation in the field of foreign and defense policy and justice and home

affairs, the national parliaments hold a mandate (due to the requirement for unanimity). 9 Criticism: the lack of expertise and background knowledge often hinders a sound

assessment of the proposed legislation by the members of national parliaments. 9 Several initiatives from the part of national parliaments in order to increase their

engagement as to what happens at the level of the European Union, such as the creation of the Conference of European Affairs Committees of EU is Parliament (consultation group comprising MEPs and members of national parliaments).

6.5. Civil Society and Interest GroupsEU enlargement: • Concerns more than merely political and economic issues;• Social, cultural side;• Is not an elite project, but one which involves the entire society (Puşcaş, 2006).

In the accession negotiations with the EU, the coordination of interests also means involving and respecting the interests of all citizens (gaining their support for the fusion) (Puşcaş, 2006).

• Public opinion polls and other instruments: used for assessing the support of citizens for the integration process,

9 Serve as a basis for further improvements of communication strategies and for increasing the level of public participation;

9 They must focus on increasing support, realizing public inhibitions regarding certain issues; 9 Specific messages and themes for specific target and support groups must be identified

in order to address negative attitudes within target groups and spread the information



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through support groups (Puşcaş, 2006).

Main interest groups: • Special institutions,• NGOs,• Opinion leaders (editors, political analysts, TV producers, cultural and scientific personalities),• Politicians,• Business associations,• Trade unions.

At a national level, organized interests and nongovernmental lobby groups participate in the domestic coordination of EU affairs (van Keulen in Meerts and Cede 2004).

• Social partners are informed about EU initiatives; their opinion is asked on new economic and social initiatives;

• NGOs play an important role in local community development and in initiatives that promote public participation (Puşcaş, 2006).

• In order to make a valuable contribution to a country’s accession to the EU, NGOs must: 9 Possess organizational capacities including legitimacy, consistency, sustainability and

credibility, 9 Have adequate staff with competitive skills, 9 Actively take on their role within communities/constituencies. 9 Trade unions - usually involved in the accession process aiming at: achieving greater

transparency on the costs and advantages related to the process of European integration. 9 Tendency: today, many interest groups = organized at a European level/associated

with transnationally - organized lobby groups (circumventing the process of preference formation by national governments) (van Keulen in Meerts and Cede, 2004).

6.6. The Negotiation Team and the Chief NegotiatorThe Negotiating Team for the accession of a candidate country to the European Union:• In charge of negotiations at an expert and technical level with the institutions of the European

Union as well as with its own institutions and Member States;• Assesses and adopts draft negotiating positions which then submits to its chain of hierarchy

(i.e. Accession Committee/Government).

The members of the Negotiating Team are responsible for (http://www.eu-pregovori.hr):• The coordination of particular clusters of negotiation chapters;

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• Providing expert support to the Chief Negotiator,• Take part in negotiations according to the Chief Negotiator’s instructions,• Coordinate the activity of working groups in charge with the preparation of the accession

negotiations (on individual negotiation chapters),• Cooperate with European Union coordinators in the state administration bodies,• Draft negotiation positions and related reports,• Monitor the fulfillment of commitments undertaken during the negotiations.

The National Delegation of the candidate country is headed by a Chief Negotiator coordinating the drafting of the position papers and all the other documents involved in the process, their implementation, and the work done by sectoral delegations (Puşcaş, 2006). The contribution of the Chief Negotiator to developing the bargaining power = the ability to force other side to deviate from its optimum (Annex no.5).

The Chief Negotiator approaches the accession negotiations looking at the outcome of negotiations and taking into consideration the basic characteristics of negotiations =>the interaction of the two sides take place at two different levels:• Technical level - negotiations take in consideration a given set of rules, criteria, benchmarks;• Political level – issues within a certain policy are resolved without reference to the rules

applying to that area.

The concerns of the candidate country’s Chief Negotiator (Nicolaides,1998) are: a. how to present a credible position to the EU;b. how to gauge any negotiating power they may have and how to wield it.

He/she must be able to use both the argumentation and persuasion, to use information and analyze it, in order to establish clearly one’s own position and options and to understand the other side’s position.

It is the role of the Chief Negotiator to judge realistically the vulnerabilities of his/her Negotiating Team and to take risk if he/she wants to maximize his/her country benefits.

The applicant country is not a powerful actor in this accession negotiations, it does not have the capability to force the EU to accept its bargaining game =>the Chief Negotiator must act to further attain the objective of gaining admission to the Union.

Primary aim of the negotiations: demonstrating a candidate country’s capacity to adopt and to



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implement the EU law (as this is a determining factor concerning each candidate’s ability to meet all other criteria for membership).

The negotiator’ task is to find out whether the chosen options of each side have led to a balanced solution; to find the way of reaching the “convergence” of choices.

Given the fact that upon joining the European Union, new Member States are required to adopt the aquis communautaire, during the negotiation process, the Negotiation Team must demonstrate that their respective country has the ability to transpose each of the 35 chapters of the acquis into the national law.

• The two negotiation sides: 9 The EU Member States (represented by the Council of Ministers – the primary decision-

maker in consultation with the European Parliament and the other institutions if required);

9 The candidate country on the other side – represented by the Chief Negotiator and a Negotiating Team. (The Negotiating Team consults all components of the Government and representative segments of society (businesses, trades unions, civil society, regional groups - representatives of all interest groups). The consultations are then translated into the country’s national negotiation position.

6.7. Diplomats and Experts/Professionals as Negotiators“Arenas that are so open, competitive, complex and dynamic [the current EU] clearly require very special skills on the part of the negotiators” (van Schendelen in Meerts and Cede, 2004).

EU (early days) - national diplomats negotiated (with each other / with EU officials) on the behalf of their government.• Low levels of pluralism, fragmentation, interdependency; • Decentralized governments, private companies, NGOs – almost absent from the arena

(exception: „social partners”) ;• Machinery of ordinary decision-making: less interdependency;• Arenas of negotiation= very different: limited openness; run by diplomats themselves:

9 “The people inside the Commission, European Parliament and Council could „orchestrate Europe” by negotiating informally, quietly and, avoiding opposition, indirectly; in short, they could negotiate diplomatically” (Midlemans, 1995);

9 Diplomats: “liked [the challenge of secondary legislation and] slaloming along and between the posts of procedures, positions and people (reactive) or placing the posts

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according to where their national interest lay (proactive). So called implementation they considered as „low politics” to be delegated to the Commission and more or less to the experts. Diplomats believed they possessed political expertise rather than technical expertise. They had a better idea of how to play than what to play.” (van Schendelen in Meerts and Cede, 2004).

Present day EU: • 85% of EU law – delegated pipeline of the Commission and comitology;• Preparation of both secondary and delegated legislation – in the hands of the Commission’s

chef de dossier and expert committees.• Technical experts:

9 Largely replaced diplomats (in charge of only 15% of the secondary legislation); 9 Thorough, yet limited expertise: many experts are needed (over fifty thousand currently

employed); 9 Act for their respective organizations (ministry, trade union, company etc.), not their

government; 9 Contribute to the fragmentation of power; 9 Dislike intervention by non-experts; 9 Expert committees keep parts of the EU machinery interdependent;

Consequences of the shift from diplomats to experts:• Contributed to the current configuration of the EU arena;• Openness – greatly increased „the more an expert committee wants to be a closed shop’ the

more it attracts curious intruders” (van Schendelen in Meerts and Cede, 2004);• Strong competition in the field: pluralist background of the experts (coming from twenty-

seven Member States instead of six);• Added complexity: committees have a tendency to develop their own rules, definitions,

procedures, practices; a complex set of procedures institutionalized for comitology;• Experts may request and obtain the creation of a new policy paradigm/method.

• Institutions govern European/accession negotiations and matter for outcomes;• All three approaches – rational choice, institutionalism, sociological institutionalism

and realism – are important theoretical tools for making sense of the institutions of European negotiations, but also show complementarities;

• the design of negotiation institutions in EU is a good context for assessing the viability of international institutional design.

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CHAPTER 7 – Strategies and Tactics in the Accession Negotiations7.1. Negotiation Strategies7.2. The Accession Criteria7.3. Popular Support for Accession to the EU

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STRATEGIES AND TACTICS IN ACCESSION NEGOTIATIONS

7.1. Negotiations Strategies

As the world becomes more complex, interdependent and integrated, the processes of negotiation become more essential (Spangle and Isenhart, 2003).

Strategy and tactics come into negotiations in several ways=>two ways are extremely important: a. the nature of the negotiating party’s association with the other stakeholders in the relationship

(one-off interaction or a long-term relationship);b. differences between the negotiating party’s goals in undertaking the negotiation and the

specific methods used during the negotiations.A negotiation that is part of a long-term relationship is a very different one. If one side is not in a position of absolute power, the long-term view means that win-win is a “golden opportunity” (Clegg, 2000).

A major strategic task in negotiation is to be very well prepared and to have movement (without movement you haven’t negotiated). Flexibility is essential for negotiation and this means knowing which way it’s safe to move, and which way it isn’t.

A lot of work goes into planning, and plans are to support the negotiation process but a plan doesn’t mean constraints for a negotiator.

If a negotiation starts as a one-off transaction, it may meet a lot of variables which ask to manage the negotiation wider picture, or going from a single deal to a strategic agreement.

A negotiator must know very well his/her side, but he/she also must know the other side(s)/stakeholders. It is strategically essential to set targets, and to be convinced that the matter of negotiation is not only black and white (Clegg, 2000).

Time is a very important strategic factor in negotiation. It can be beneficial to the emotional side of negotiation (good negotiation requires both intuition and logic).

Bazerman and Neale (1993) point out the fact that no one’s strategy is perfect for all situations, and the effectiveness of the strategies “varies with the level of trust between parties”. Generally,

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the negotiation strategies are about how to collect and evaluate information, how to cope with different perceptions of other parties (including the public opinion), how to use the perceptions, and “how to go beyond simple trade-offs to create truly integrative agreements”.

Power is an essential component of international negotiations (power being a relational phenomenon, or - how is defined - an exchange of influence). According to Spangle and Isenhart (2003),”there is power in building relationship, talking constructively about options, demonstrating understanding, and working together toward mutually beneficial goals. ”The negotiation power (real or perceived) comes from several sources:• Political,• Structural,• Resources,• Procedural,• Informational,• Legal,• Ethical,• Personal.

The Program on European Negotiation of the European Institute of Public Administration (see Lavadoux et al., 2004) emphasizes the following issues related to negotiation strategy and tactics:

Fig.no.7.1.: Negotiation strategies (Source: A. Guggenbuhl, F. Lavadoux, P.Goldsmith, European Institute of Public Administration, Programme on European Negotiations, 2004).

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Strategy:a. Define a clear objective;b. Identify stakes and interests;c. Plan positioning and moves;d. Set attitude and climate;e. Build argumentation;f. Prepare for tactics.

a. Define a clear objective (ex.: Do you want to go?):• What do you want to achieve (outcome)?• How (action)?• What if you get the minimum?• B.A.T.N.A.? (assessing “Power”)• When? (the agenda of the meeting)• Who do you meet? (trust and authority of the negotiator)b. Identify interests and stakes (ex.: Why do you need it?)• Needs analysis;• Identify non-negotiable (vital interest);• Hierarchy and prioritization (main interest vs. easy concessions;• Manage information (what to give, keep and ask).

Source: A. Guggenbuhl, F. Lavadoux, P.Goldsmith, European Institute of Public Administration, Programme on European Negotiations, 2004

Opening bid/Initial Position



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c. Positioning and moves (e.g. How far and fast should you go?)Attitude and climate:• “I cannot be wrong” • “My solution first”• “Trust me, I know what is good for you”• “Let’s compromise”

Tactics:A.• The good and the bad guy;• The smokescreen;• The phoney offer;• The sphinx;• Hardball (hairchested);• The nibble;• The foot in the door.

B.

When we are talking about EU accession negotiation strategies, we must take in consideration the strategies of the European institutions, Member States and candidate states. Landau (in Meerts and Cede, 2004) said the Commission also pursued its own strategy, using issues of fragmentation and complexity as an opportunity to capture more power and to gain more involvement in this

• Playing on Information: 9 Scounting around; 9 Enigmatic Sphynx or blanket; 9 Feign ignorance; 9 Secret confidence; 9 Leaking.

• Playing with time: 9 Marathon discourse and smokescreen; 9 Stewing; 9 Columbo; 9 Sawing off or Bombarding.

• Playing with people: 9 Jack in the box;

9 Good or Bad guy; 9 Divide and conquer; 9 Connivance.

• Playing with pressure: 9 Withdrawal; 9 Painting it black; 9 Hairychested; 9 Calling in the bosses.

• Playing with the agenda: 9 False trail; 9 Nibbling; 9 Canceled appointment; 9 Foot in the door.

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policy area. Coalition building and interstate bargaining represent the interest of the Council. Among Member States there are major players and net payers, and they must have a say in building coalitions or designing the most important European policies.

7.2. The Accession Criteria

All actors involved in the EU enlargement process (pre-accession stage, accession negotiations period and the acceding status of the applicant/s) met with the very sensitive issue of the accession criteria, or the conditions for joining the European Union. These conditions are an essential topic for thinking and implementing the accession negotiation strategy. First reference to political membership conditions appeared into the context of the Mediterranean enlargement (the Declaration on Democracy, at the European Council in Copenhagen, in April 1978).

Hughes et al. (2004) did prove that the logic of EU conditionality is not a uniformly hard rule-based instrument, ”but rather is highly differentiated”, its interpretation depending on the content of the acquis, the policy area, the country concerned, and the general political context. Accepted as a rules-based prescriptive essence, and as a coercive instrument (especially by the Commission), the political conditionality of membership was high politicized many times and operationalized in a selective manner (Hughes at al., 2004), ambivalence and ambiguity being often evident. Perhaps for this reason, the Commission proposed a new concept of the “track record” and “benchmarks”, emphasizing the importance attached to the implementation of the agreement itself (the case of the Stabilization and Association Agreement).

EU conditionality assumed one basic premise: „that it exists and works because there is a power asymmetry which enables the Commission to impose the adoption of the acquis as a precondition of their entry to the Union” (Hughes et al., 2004). From this perspective we may understand the assumption that “the policy interactions and power relations between EU and the candidate countries are shaped by the conditions of membership” (Hughes et al., 2004).

Sedelmeier (2006) points out two distinctive sets of conditions for joining the EU:1. general conditions (the Copenhagen criteria);2. concrete terms of accession (formulated during the negotiation process).Hughes et al. (2004) presents two main categories of conditionality:a. formal conditionality (“the publicly stated preconditions”, like the Copenhagen criteria);b. informal conditionality (“includes operational pressures and recommendations” to achieve

particular outcomes during interactions with the candidate states.



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Accession conditionality (after Sedelmeier, 2010)“Copehangen criteria” (European Council, Copenhagen, 1993):• Stable institutions guaranteeing democracy, the rule of law, human rights, and respect for

and protection of minorities;• A functioning market economy, as well as the capacity to cope with competitive pressure

and the market forces within Union;• Ability to take on the obligations of membership, including adherence to the aims of

political, economic, and monetary union;• The EU’s capacity to absorb new members, while maintaining the momentum of

European integration;• European Council in Madrid, 1995 (adding administrative capacity)• “… create the conditions for the gradual, harmonious integration of those States, particularly

through the development of the market economy, the adjustment of their administrative structures and the creation of a stable economic and monetary environment”.

• Example of expanding political criteria: Commission “benchmarks” for opening accession negotiations with FYROM (March/June 2008):• implementation of the SAA;• improved dialogue with political parties;• reform of police;• reform of the legal sector;• reform of the public administration;• fight against corruption;• employment policy and improving investment environment;• electoral law reform.

The conditionality offers EU the effective means to influence changes in the applicant countries and to comply with the EU policies. But the EU’s influence depends on the credibility of conditionality, and such credibility depends on the signals of the EU’s actors, related to the requirements for accession. Currently, the EU has extended conditionalities both beyond the signing of the Accession Treaty and even after the accession date (Sedelmeier, 2010).

7.3. Popular Support for Accession to the EU

Trying to argue the necessity of popular support for the European integration, many authors refer to the Karl Deutsch’s concept of “trans-national affinities” (the role of trans-national affinities in the relationship between interaction and integration).

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Intra-European trade has been seen a major stimulus to “Europeanist” sentiment. Research studies argue that the popular support for European integration correlates positively with level of intra-European trade, and the attitudes toward integration reflect economic, cultural or political concerns and not trans-national affinities per se (Jones et al., 2004). And, in broad terms, the argument is that the support for the accession to the EU is a function of benefits derived from membership (so-called “impact of accession/integration”/: ”Respondents in Member States are more likely to support the accession of candidate countries that are relatively important trading partners, are located in close geography proximity or share a common border” (Jones et al., 2004).

Enlargement can be successful only if it is a transparent process that has the democratic support of the citizens of the Member States and the candidate countries. The EU’s fifth enlargement experience has shown that much more is needed from the Member States and candidate states to inform media, labor unions, market structures and different NGOs. A wide-ranging dialogue is needed to make the challenges and benefits of the enlargement process clear, to diffuse misconceptions where they exist and let citizens know their concerns are being taken seriously.

The realistic approach of the conditionalities/criteria to be fulfilled, as well as future and needed reforms => is meant to avoid a too rosy picture of the EU’s membership short-term effects (Summa, 2008). In particular the accession of new member states needs public understanding and support in order to be successful and sustainable. This is challenging now, in an environment where, notably in the context of the on-going financial and sovereign debt crisis, the role of public bodies is increasingly questioned. As in other policy areas, the public expects to see tangible evidence of the effectiveness of EU enlargement and its transformational power for those countries concerned as well as the added value for the EU as whole.

• Strategy and tactics come into negotiations in several ways;• A negotiator must know very well his/her side, but he/she also must know the

other side(s)/stakeholders;• Negotiations strategies: competitive, collaborative, avoiding, accommodating;• The importance of accession criteria that must be fulfilled in order to join the EU;• Enlargement can be successful only if it is a transparent process that has the

democratic support of the citizens of Member States and candidate countries.

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CHAPTER 8 - Negotiation Positions (Positions Papers)8.1. Position Paper8.2. Background Dossiers 8.3. The Structure of a Position Paper

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NEGOTIATION POSITIONS (POSITIONS PAPERS)

In multilateral negotiations, states prepare and present their negotiation position = Position Papers =>the accession negotiations to joining the EU are both multilateral and bilateral and the formal negotiations use the procedure of exchanging the position papers:• The positions of the candidate country for each of the negotiating chapters are drawn

up and sent to the Presidency of the Council as Position Papers=>it is the Commission which studies each Position Paper and drawn up a Draft Position Paper, as a reply of the EU to the Position Paper of the candidate country=>the Draft Position Paper is analyzed by each Member State, which in the Council meeting, decide on a EU Common Position (the Common Position presented by the Presidency is the result of negotiations within EU). Remark: At this point, a chapter is “opened” and negotiations begin;

• Usually, the EU replies to the candidate’s Position Paper with a long list of questions (“additional information”) to which the candidate country is asked to reply with the same procedure used in a Position Paper, and this leads to a new EU Common Position.

8.1. Position Paper

• It is a written document on the negotiating positions which states the opinion of a candidate country on compliance with the acquis in a particular area defined by the negotiating chapter;

• The purpose of a position paper is to generate support from the Member States =>the need to carefully think about the best language to use and how to express points fairly and clearly (the capability of the candidate country to shape the EU’s attitude through the provision of the correct/accurate information);

• The content of the Position Paper must respond both to the short-term and long-term interests of the country;

• The Position Paper is based on the facts that it provides a solid foundation for the arguments and credibility, especially when there is a link between the Position Paper and the overall National Strategy on EU membership.

Nicolaides (1999) points out (at least) seven elements that make up credible a negotiating position:1. The acquis to be adopted by the candidate country;2. The objectives, opinions and attitudes of the Member State (and EU) on the future

development of the policy covered by the negotiating chapter;3. The situation of the candidate country on the same area;4. The contribution of the sector presented by the negotiating chapter to the economy



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of the candidate country and - very important - the contribution it can make to the “common interest” of the EU;

5. The capacity of candidate’s public administration to enforce the EU rules and policies;6. The treatment provided to other candidate countries;7. The precedents set by previous accession negotiations.

Remark: Professor Nicolaides advises the candidate countries to take the point no. 4 very seriously, because it appeals to the mutual interest/the common interest and it signals the candidate’s approach to the accession negotiation.

• The Position Papers are very important with regards to transition periods and derogations, since the quality of the argumentation will determine the positive or negative decisions of the EU;

• The domestic political situation and the maintenance of population support for accession must be in minds of both the Government and the Negotiation Team (defending the “vital national interest”);

• For contextual reasons, the countries of Eastern enlargement wave did not follow “the precautionary principle” =>it would be advisable to be taken in consideration for the future enlargement negotiations (see Annex no.3).

8.2. Background Dossiers

• It is advisable that both the Negotiation Delegation and the Government to add to each of the negotiating chapters of the Position Paper a “background dossier” with all relevant documents provided by the line ministries, social partners, civil society, interest groups which support/argue the statements written in the Position Paper;

• It contains the proposals, measures, commitments, programs discussed with political parties, local administration, social partners in order to request transitional periods;

• For technical reasons, candidate countries have adopted dates for accession;• The formulation of the negotiation positions of the candidate country must be based on the

general and sectoral, financial and social, economic and societal impact assessments: 9 Impact assessment of the conditions required for implementing each piece of the acquis; 9 Impact assessment of the necessary efforts from both the public and the private sector; 9 Impact assessment of the cost and benefits of the changes brought by the implementation

the acquis;

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9 Impact assessment of the financial resources of the candidate country in order to assume these changes;

9 Impact assessment of the administrative capacity and new institutions/agencies in charge to implement the acquis;

• The background dossier should contain both the point of agreements and the points of disagreements from major domestic sources of opinion and analysis.

HOW IS A POSITION PAPER DRAFTED?

• Preparation of a Position Paper must be based on commitments that the candidate country agrees and is able to assume the acquis for the respective negotiating chapter;

• Each institution of the Government provides its own contribution to the background dossier, and thus to the Position Paper;

• These institutional contributions are then analyzed, correlated and harmonized by the “integrative institution” and consultations are held with other institutions/agencies involved in the policy area of the negotiating chapter;

• Completion takes place in written procedure, by consulting the head of each institution prior to the submission for approval in the National Delegation for Accession Negotiation (at this moment it is advisable to consult various epistemic communities in order to identify the most sensitive issues in the particular area of the European policy and European interest);

• Once approved by the National Delegation, the Position Paper and the background dossier are subject to adoption by the Government;

• Depending on constitutional and legal national provisions, consultation with the relevant parliamentary committee may be held for each Position Paper of the negotiating chapter (these consultations can take place either before or after their adoption by the Government, according to the legislation of the candidate country).



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8.3. The Structure of a Position PaperThe following structure is typical of a Position Paper (Xavier University, 2011):• The introduction - should clearly identify the issue and state the author’s position;• The body of the Position Paper contains several paragraphs (or sub-chapters). Each

paragraph should present an idea or a main concept that clarifies a portion of the position’s statement and is supported by evidence of facts. Evidence can be either statistical data, official documents, source quotations, interviews, or indisputable data / events. Evidence should lead, through inductive reasoning, to the main concept or idea presented in the mentioned paragraphs. The body may begin with some background information and should incorporate a discussion of both sides;

• The conclusion should summarize the main concepts and ideas and reinforce, without repeating, the introduction or the body of the Position Paper. It could include the main commitments and the suggested courses of actions and/or solutions.

Remark: The EU did not establish a standard format for such structure of Position Paper. In practice, there are several similarities between the negotiation positions prepared by candidate countries, but they do differ in scope and also with regards to the methods which candidate favors in arguing its way to accession (see Annex no. 6).

• Some general guidelines of the structure of a Position Paper are very useful in the preparation stage to be followed by all line ministries and integrative institutions of a candidate country, because the ministries should formulate precise proposals and provide sufficient reasoning that can serve as concrete basis and factual arguments for negotiations =>the final version of the Position Paper must be written by the Negotiating Team under the authority of the Chief Negotiator.

A Position Paper for accession negotiation, in general, includes the following parts:A. The general summarized position of the candidate country on the negotiating chapter’s acquis

(in this section, a synthetic exposure of the exemptions requested can be made);B. Candidate’s detailed position on the acquis in the respective field, with a distinct indication of:

• The equivalent in the national legislation of the acquis already taken, or the provisions that are most significant;

• Timing and modalities of implementing the acquis that has not yet been adopted.C. Presentation of the institutions of central government or otherwise required by the acquis of

the matter:• Existing institutions - in the case that statistics will be presented to prove the efficiency

of the operations and the main measures to increase their efficiency;

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• If necessary, a schedule and action plan/measures to create new institutions that are still required for implementing the acquis.

D. Arguments for the transition periods or derogation in the area of negotiated chapter, where there is such a request.

Professor Nicolaides (1999) suggests the same manner of structuring:I. Acceptance of the acquis: • State acceptance of the acquis;• Explaining the national situation/capacity.II. Insertion of national institutions and/or names into the acquis:• State acceptance of the acquis;• Explaining national situation/capacity;• Identifying precise changes of the acquis.III. Negotiation of derogation:• State non-acceptance of the acquis;• Explaining national situation;• Defining precise requests;• Justifying/identifying means/procedures of eventual compliance.IV. Negotiations of institutions/financial issues:• Defining precise request;• Justifying.

Advisable:• Should provide very precise proposals and reasons for these proposals;• Imprecise or insufficiently reasoned proposals might create the impression that the candidate

country does not really know what it wants;• Important that the candidate country leaves the perception that it is fully in control of every

situation presented in the Position Paper;• The Position Paper is a formal document, so the writing style should reflect this fact;• If a Position Paper lacks precision, negotiations may be delayed, the Member States will

demand clarifications and the process of internal coordination must start all over again before negotiations can really begin.

As professor Nicolaides (1999) pointed out, it is important to:• “Keep papers short and well structured (headings, etc.),• Define precise position/request,• Explain fully your own situation/capacity,• Justify position/request (as provided by the existing acquis).”



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Twenty-eight Questions to Ask in Preparing a Persuasive Negotiating Position (after Nicolaides, 1999, p. 13)

Understand the acquis:1. What are the relevant Treaty provisions?2. What is the relevant secondary legislation?3. Are there any relevant Court rulings?

Understand your own situation:1. Why does compliance with the acquis cause problems?2. What is the nature and magnitude of the problems?3. Are other remedies rather than derogations unavailable?

Exceptions/safeguards in treaty or secondary legislation:1. Are there any?2. Have they been used or invoked by any existing member? How?

Exceptions/safeguard in past accession negotiations:1. Did past applicant countries have similar problems?2. What exceptions did they obtain in their treaties of accession?3. Can you use similar arguments?4. Do you have the same negotiating power?

Formulate your own position/request:1. Do you need a permanent or a temporary derogation? How long should it be?2. Should it be general (recording your needs) or specific (modifying a certain EC act)?3. Would a safeguard do, instead of a derogation?4. Will compliance with the acquis cause irreparable economic/social damage?5. Is there no other remedy apart from derogation? Is it proportional to the intended effect?6. Do your identified needs coincide with the objectives of the EU?7. Do you suggest mechanisms for eventual compliance with the acquis?

Formulate your back-up position:1. What is the minimum that you can accept?

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THE E.U. COMMON POSITION

• The initial position of the European Union in the accession negotiations is “the acquis and nothing but the acquis” (Sigma Paper, 2007);

Remember: the Commission is “the Guardian of the Treaties” and the Member States are the “Masters of the Treaties”;• For the Member States some parts of the acquis are more important than others =>in

some areas no concessions will be made, while in other flexibility will be shown;• The process of deciding the content of the EU Common Position is very difficult

because of the possible divergent national preferences of current Member States =>the Member States negotiate among themselves to agree on the EU Common Position, and the Commission acts as a mediator;

• These intra-Member States negotiations prove that the accession negotiations are more than bilateral negotiations (between a candidate country and the EU as a unit); they are also multilateral negotiations, which are not only for the joining of the EU but in order “to redistribute the costs and benefits from accession” (Schneider, 2009). And these negotiations reflect “the network of special relations that had grown up between the existing and future member states” (Meerts&Cede, 2009).

• The Draft Common Position (DCP), which is prepared by the Commission, will be discussed by the Member States in the Enlargement Working Group of the Council

2. Could you accept a shorter derogation that can be extended after you enter the EU?3. Could you propose “objective” means of deciding later on whether extension is

necessary?

Understand the EU’s position:1. What is the EU’s offer/target?2. Are there disagreements among the Member States?3. Will the EU itself ask for a derogation?

Monitor the other applicant countries:1. Have they obtained something you have not? Why?2. Could you request the same?3. Should you request the same?



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and decisions regarding the temporary derogations are taken by the Council Drafting Committee. The agreements achieved by the Member States in the Working Group open the way to get the common position on behalf of all Member States. The Presidency communicates the Common Position (CP) to the Chief Negotiator of the candidate country in the “negotiating conference”.

• When all compromises and concessions were achieved, the Member States might agree on communicating to the candidate state the CP about the provisionally closing of a negotiating chapter (so-called “chaptology” says that each chapter remains provisionally closed till the end of the game).

• The positions of the candidate country for each of the negotiating chapters are drawn up and sent to the Presidency of the Council as Position Papers;

• Background dossier contains the proposals, measures, commitments, programs discussed with political parties, local administration, social partners in order to request for transitional periods.

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CHAPTER 9 - Transition Periods and Derogations – Flexibility and Rigidity in the Accession Negotiations

9.1. Cases for Applying Transitions and Derogations9.2. Derogations

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The accession negotiations are about the conditions for joining the EU. All Member States must be satisfied and convinced that the accession is in their own interests. For these reasons the flexibility during negotiation is not very impressive.

There are three types of flexibility in the accession negotiations (Sigma Paper 37, 2007):A. Permanent derogations;B. Temporary derogations and transitional arrangements;C. Technical adjustments.

The exemptions of new Member States from implementation of all approximate 100,000 pages of acquis communautaire or a particular policy “reflects the balance between allowing applicants some time to adjust their policies and the desire to accept only those applicants whose policies are already stable and in harmony with the EU” (apud Plumper in Schneider, 2009).

Definitions (euabc.com):Transition: A transition period is a negotiated number of years during which the EU obligations do not apply (temporary exemption from implementation of the acquis).

Remark: The accession document of the Ministerial meeting opening the IGC on the Accession of Montenegro to the EU (29 June 2012), stated that transitional measures „are limited in time and scope, and accompanied by a plan with clear defined stages for application of the acquis”. The same document adds: “For areas linked to the extension of the internal market, regulatory measures should be implemented quickly and transition periods should be short and few; where considerable adaptations are necessary requiring substantial effort, including large financial outlays, appropriate transitional arrangements can be envisaged as part of an ongoing detailed and budgeted plan for alignment. In any case, transitional arrangements must not involve amendments to the rules or policies of the Union, disrupt their proper functioning, or lead to significant distortions of competition.”

Derogations: imply that a rule is not binding for a certain country. For certain countries there are derogations from parts of the treaties. There are also “opt-outs” from parts of the adopted policies.

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Remark: not popular in the EU. The Commission wants laws to be identical across the whole of Europe.

Technical arrangements – are generally undertaken by the Commission and do not give rise to problems.

Remark: typically, the change would be the addition of a specifically protected name - food and drink products- from the candidate country to the list of protected geographical designations.

9.1. Cases for Applying Transitions and Derogations

Transitional periods and derogations are established (Nikolaides, 1999): • To give the economy of the candidate country the time to adjust to the membership conditions :

9 Increased competitive pressure, 9 New rules to comply with;

• To allow the public administration of the prospective member to import and implement the new rules and regulations into domestic legislation;

9 Remark: the implementation of the acquis may require the creation of new national and/or local agencies and procedures – this, along with setting up the administrative apparatus may take a considerable amount of time.Transition periods = agreed for several reasons (Sigma Paper 37, 2007):

• Technical: it is sometimes technically difficult or impossible to apply the acquis - from the moment of accession (e.g. the revoking of an international treaty, or when the equipment cannot be procured before the accession);

• The need to mitigate the impact of systemic change; • The need to protect the higher standards existing in the candidate countries;• The political need to defend perceived key national interests;• The need to help the candidate countries develop their social and economic programs;• Major financial concerns.

Transitional arrangements: indispensable in the case of:• Financial contributions (that can be calculated and put into effect almost immediately) ;• Attracting EU funding- the amount that each country is able to obtain depends on its

integration into the various Community programs; 9 Examples: Agriculture: CAP receipts calculated on the basis of the country’s output



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for the previous year – officially, CAP framework statistics are unavailable for the new Member States;

9 Structural policy programs: the initial receipts/payments imbalance typical to new Member States: redressed by a temporary and declining credit mechanism;

• The EU itself may request a gradual introduction of the new Member States into the Community programs as well as an incremental application of its laws in order for the Community to be able to adjust at its turn to the enlargement.

Examples: 9 In order to temporarily protect their interests from the potentially harmful competition

of new members, EU farmers as well as steel workers used to request that the principle of free trade be applied gradually;

9 Luxembourg: 10 years restriction in what concerns the inward movement of Portuguese workers (countries that entered the EU after its founding were subjected to similar restrictions).

Transitions and derogations:• Generally sought after when a country expects to have difficulties in implementing the acquis:

9 Political issues; 9 Social issues; 9 Economic issues.

Remark: 9 Negotiation strategy: during accession negotiation a country should avoid focusing its

demands only on transitions and derogations (risk of becoming a less desirable partner): 9 Asking for exceptions from the rule because compliance costly: negative attitude; 9 Asking for assistance in order to enable compliance: positive attitude (possible

assistance programs: trainings, programs supporting adaptations, improving existing capital/infrastructure etc.);

9 Another way of avoiding making difficult adjustments as well as asking for derogations: adaptation of the acquis (immutable in theory) – e.g. In the accession negotiations of Austria, Finland, Norway and Sweden: the Union agreed to review its own standards with respect to environment, health and safety issues in order to raise them to the level of the candidate countries .

Implementation plans:• Requests for transitional measures need to be justified by detailed implementation plans

ensuring that compliance with the acquis will be reached (http://ec.europa.eu);• Both the requests and implementation plans should be accompanied by a timetable for the 1 1 v. 4th Enlargement Summary: http://aei.pitt.edu/1560/1/4th_enlarge_summary_results.pdf;

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progressive achievement of full compliance;• Implementation plans: the conception of “intermediate targets” (legally binding);• Their application should be monitored by the Commission (and by the Member States).

Transitional measures – according with eutransition.eu, the typical transitional measures were in the following main domains:• Agriculture, Land Market Reform and Environment Related Issues:

9 Environment; 9 Food Safety; 9 Land Administration and Cadastre; 9 Renewable Energies.

• Economic Reforms (Transition to a Market-Based Economy): 9 Domestic Financial Systems; 9 Liberalization of Prices, Trade and Foreign Exchange; 9 Macro-Economic Stabilization; 9 Private Sector Development; 9 Privatization of State-Owned Enterprises; 9 Reform of Public Finances; 9 Trade Development and Regional Integration; 9 Employment, Labor and Social Protection (Social Reforms).

The E.U. – extensive transition management experience: • “The European Consensus on Development”: a European Commission’s development

policy document, drawn up in 2005, stating in Article 33 that: “The EU will capitalize on New Member States’ experience (such as transition management) and help strengthen the role of these countries as new donors.”;

• “The European Transition Compendium”, an awareness-raising and knowledge-sharing tool that compiles experiences about transition. It is meant to raise interest about this delicate and complex phase of transition when a country gradually transforms itself politically, economically and socially, in order to embrace democratic values.

• All EU Member States experienced transition at some point or another: 9 The economic transformation and reconstruction process brought about by France and

Germany after World War II by creating the European Economic and Steel Community (EESC);

9 Spain: transition to democracy in 1975 (simultaneous process in Portugal and Greece);



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9 The post-Cold War period: Central and Eastern European countries as well as the Baltic States struggled for independence and began to successfully govern their young countries;

9 The 12 most recent members of the EU all needed transitional periods in order to fully adapt to the EU economic, judicial and social framework.

Length of transitional periods: varies, subject to negotiations (from the EU point of view: should be kept as short as possible; the candidate countries are interested in obtaining long transitions);• Greece: five years;• Spain and Portugal: seven-year transitional period (for certain sensitive issues - ten years); • More recent members: one year to nine years (average period of about three years).

9.2. Derogations

Types of derogations (Nikolaides: 1998):• Most derogations granted by the EU – temporary (room for manoeuvre for the prospective

member): 9 Not pre-determined (in terms of length); 9 May be granted for a fixed and short period of time (no formula for what fixed and/or

short represents); 9 Length varies in relation to the adjustment having to be made (estimated difficulty and

extent); 9 If necessary, some derogations may be prolonged;

NB: though EU has only accepted temporary derogations, there is one exception: Malta, who gained a permanent derogation on the purchase of second homes on the island (euabc.com) =>permanent derogations have been agreed in rare cases.• Defined in terms of:

9 Products (e.g. apples), 9 Sectors (e.g. banking), 9 Standards (e.g. environmental measures), 9 Factors of production (e.g. workers), 9 Tax measures (e.g. VAT rates or exempt activities), 9 Regions (e.g. certain islands), 9 Area of operations (e.g. amount of re-insurance by foreign companies on domestic

territory), 9 Business practices (e.g. establishment of companies),

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9 Private practices (e.g. purchase of land or currency transfers) etc.a. specific (refer to a certain provision of a legal act¬); b. unspecific (do not take the form of an exception. Instead of requesting an outright exception).

A candidate country may ask for the recognition of “special needs”: the cases of Ireland, Greece, Portugal, Spain: treaties of accession recognizing the countries’ efforts towards „economic development”;

Remark: when it anticipates difficulties regarding complying with the acquis in a certain area, a prospective member may seek safeguards instead of derogations. • Safeguards:

a. exemptions from the rules only if the need arises;b. specific derogations may not be defined during accession negotiations; c. general safeguards (manufacturing sectors mostly) – defined in all enlargements;d. allow partners to avoid cases in which disagreements on legal issues of minor relevance

hinder the progress of negotiations;

Obtaining derogations:• Not granted lightly;

9 Cases of evident need: a. “needs” must be quantifiable orb. proven to represent matters of: vital national interest; traditions; important social policies

(heaviliy impacted by the adoption of the acquis); 9 Not granted in matters of fundamental freedoms of the internal market as

deviating from such basic principles would change the character of the European Union; 9 However: a Compensatory derogations may be given even in such circumstances as

the EU may itself ask for transitional arrangements for aspects such as the movement of workers/trade of agricultural products etc.

• Easier to obtain when the issues at stake are of major importance to the prospective member but of minor importance to the EU (ex. Marketing of moist tobacco in Sweden, illegal in the rest of the EU);

9 However: these are rare situations – candidates must usually argue very convincingly their cases in order to obtain any derogation;

9 The most powerful argument: the existence of a precedent: exceptions granted to any other existing member provided in the treaties (some restrictions on the freedom to trade, move and establish for certain specific reasons: protection of national security/public morality- very few/narrowly defined/must be applied in a non-discriminatory



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manner) and in secondary legislation (much more numerous – Member States must be very familiar with EU legislation and jurisprudence);

• Every case is, however, unique - EU practice does not always offer useful precedents: negotiation very important;

• The prospective member must: 9 Be able to explain the manner in which adopting the acquis would cause irreparable

damage to its welfare- reduction of national standards/economic activity etc.; 9 Prove that costs related to the immediate adoption of the full acquis are too high and that

derogations are the only way of avoiding them; 9 Demonstrate that the derogation is not contrary to the general principles of the EU; 9 Indicate the precise way in which that derogation is beneficial (raise the standards of

living/levels of prosperity/reduce social and regional disparities etc.); 9 Prove that the requested derogation does not impact on trade and competition inside

the EU; 9 Quantified evidence helpful;

NB: On all requested exceptions: hard bargaining process to be expected;Important steps for preparing the request of transitions/derogations in a negotiating position (Nikolaides, 1998):1. Understanding the acquis:• Examining all relevant provisions in the treaties;• Analyzing the relevant secondary legislation;• Searching for relevant jurisprudence;2. Understanding one’s own situation:• Reasons for which compliance with the acquis is likely to cause problems;• Nature and magnitude of the problems;• Analyzing potential solutions other than derogations.3. The existence of certain exceptions/safeguards in treaties or in the secondary legislation:• Method in which they have been used/invoked in the past by older members.4. The granting of various exceptions/safeguards in past accession negotiations:• Finding similar problems encountered by older members;• Analyzing the exceptions granted to them;• Analyzing the possibility of using similar arguments; • Assessing one’s own negotiating power accordingly. 5. Formulating one’s position and request:• Permanent or temporary derogation requirement– estimating the time length;

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• Required derogation - general or specific;• Assessing the possibility of replacing the derogation with a safeguard;• Assessing the potential damage of adopting the full acquis;• Analyzing if one’s identified needs coincide with the objectives of the EU;• Setting forth potential mechanisms for eventual compliance with the acquis.6. Setting up a back-up position:• Establishing an acceptable minimum;• Assessing if a shorter derogation (with extension potential) is acceptable.7. Understanding the position of the EU:• Analyzing the offer/target proposed by the EU;• Assessing potential disagreements among Member States;• Anticipating if the EU itself is likely to ask for a derogation.8. Monitor the other applicant countries:• Cases (and reasons) in which other Member States obtained a transitional period/derogation;• Possibility of requesting the same;• Desirability of such a transitional period/derogation.

From rigidity to creativity in accession negotiations:Difficulties in accession negotiations are not only resolved by means of the transition periods and derogations or safeguards. It is true that there are transitional periods which are to the candidate’ advantage, but there are also transitional periods, which disadvantage the candidate (Schneider,2009). The creativity and imaginative approaches of negotiators are very important tools „to discover” new solutions. The experience of previous accession negotiations presents several types of „imaginative solutions”(Nicolaides et al., 1999):• Adaptation of the acquis,• Extension of the acquis,• Interpretation of the acquis,• Geographic limitation of the acquis,• Pragmatic - flexible transitional arrangements.Case Study - Republic of Slovenia – Transition periods and derogations (http://www.svrez.gov.si/) (Annex no. 7).Case Study - Republic of Croatia – Transition periods and derogations (ec.europa.eu) (Annex no. 8).



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NB: The EU accession negotiations with Croatia were opened on October 3rd 2005 and concluded on June 30th 2011. Croatia is set to join the EU on July 1st 2013. In line with the negotiating framework, a certain number of transitional periods and derogations have been agreed, limited in time and scope.

• A transition period is a negotiated number of years during which the EU obligations do not apply (temporary exemption from implementation of the acquis);

• A derogation implies that a rule is not binding for a country.

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CHAPTER 10 - Final Stage of Accession Negotiations10.1 Financial Package10.2. The Accession Treaty

115116121

CHAPTER 10

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The accession to the European Union is a matter decided by all Member States (unanimity). Everybody knows that the juridical equality of states is one thing, and that certain Member States are more influential in the decision-making process. There are also Member States which are very closely associated with the candidate countries. Both Member States and candidate countries are very much concerned to demonstrate that they serve their own “vital national interests”. Especially when negotiating the financial package and the content of the Accession Treaty many negotiators talked about “bloody negotiations”. This is because the so-called “difficult chapters” are not discussed at the end of the process, the negotiation of these chapters starts at the beginning and is pursued for several years.Final deals emphasize Schneider’s approach of distributional conflicts and discriminatory membership theories when the gains and losses of enlargement are (re)distributed among present EU Member States and future Member States. From such a point of view the outcomes of the accession negotiation are explained “by the ability of all involved actors to locate these deals and coordinate on their specifics” (Schneider, 2009).There are authoritative opinions saying that the governments of the candidate countries have fully agree with the accession criteria because they focused on issues directly related to gaining EU money (Summa, 2008) - structural funds, agricultural subsidies a.s.o. - in order to accelerate economic processes, to become functioning market economies. My advice to future candidate countries is to prepare a lot of risk analysis and market research studies before entering the “final deals” of accession negotiations; to consult the business interests, trade unions, NGOs, all economic and social partners for gathering all the necessary information for governments in order to provide the most accurate impact studies to their negotiators.Of course, during the final stage of accession negotiations the Commission has the opportunity to play a skillful broker and a trusted mediation role. The Commission is expected to frame proposals likely to obtain the approval of all Member States.

10.1 Financial Package (europa.eu):

• The chapter on “Finance and Budget” - is related to all the other difficult negotiating chapters;• The amount and structure of structural funds received by a new member state under the

common economic policies of the European Union from the EU Budget in a certain period as well as the amount of that country’s contributions to the EU Budget in the same period;

• Often left to the very last phase of negotiations.

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Negotiation of the Financial Package:• In its financial package, the candidate country strives to obtain the most favorable agreement

allowing it to meet certain main goals: 9 The possibility for the new member state to continue the process of real convergence

(further reducing a potential development lag behind the EU average); 9 The agreement ought not to deteriorate the candidate’s public financial position (and

cause difficulties in achieving the fiscal provisions of the Maastricht criteria);

The results of the financial package negotiations: - presented and assessed from the two points of view: • Short-term perspective;• Long-term perspective (after the country’s accession):

9 Establishes the basis for the country’s participation in the negotiations about the new financial framework;

9 First occasion on which the candidate country takes part in negotiations “as a full member” – this is when a genuine reallocation of funds between old and new Member States takes place for the first time.

Remark: complexity of interests - negotiations are rendered extremely difficult:”EU relations with Central and Eastern Europe illustrate the difficulty of constructing a consistent policy when the spheres of interest of the members differ so greatly” (Mayhew, 1988).

Several phases:• The announcement of a “common financial perspective” by the Commission: a document

defining the basic framework for discussion about the main financial aspects related to the accession of candidate countries to the EU:

9 Agriculture and rural development, 9 Structural funds, 9 Regional policy, 9 Contributions to EU Budget, 9 Other issues;

• The Commission comes out with its proposal for the distribution of funds between the Member States.

Remark: during this phase the candidate country strives to explain its position concerning the financial side of negotiations and justifies the proposals it sets forth concerning its own financial requirements/issues;• EU Member States adopt their official positions on the financial package of negotiations;



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• Efforts in the direction of attaining public finance goals (short and long-term) – lobbying for: 9 Increasing the amount of lump sum payments, 9 Limiting to the greatest possible extent the potential public finance risks related to the

country’s accession to the European Union.

The candidate country - to ensure, in a timely manner, that the required capacities and structures for the sound management and effective control of Community financial instruments are in place in accordance with the acquis.

Financial Packages – the chapter 33 (Financial and Budgetary Provisions) is related to all other financially relevant chapters, in particular chapters 11 (Agriculture) and chapter 22 (Regional Policy).

The protection of the EU’s financial interests - to be kept in mind by the candidate country. • Although enlargement negotiations share a number of similarities with other negotiating

activities with non-members they are qualitatively different in form and content. As Graham Avery (1995) has summed up, “accession is about how a non-member is to join the Union, and apply for the rules of the Union. It is not aimed at an agreement between the Union on the one hand and an external partner on the other, as the normal case in international negotiations, but at the way in which an applicant country will function as a member. The negotiations are not about future relations between “us and them” but rather about relations between “future us”. (Landau in Meerts and Cede, 2004).

Remarks: 1. In the context of the EU budgetary discipline policy, Article 29 of the current Inter-

Institutional Agreement foresees that if a new Member States accedes to the European Union during the period covered by the financial framework, the European Parliament and the Council, acting on a proposal from the Commission, will jointly adjust the financial framework to take account of the expenditure requirements resulting from the outcome of the accession negotiations;

2. If the financial package requires adaptation after the conclusion of the negotiations, a procedure would need to involve the candidate country/acceding country as appropriate in this decision-making.

1 2 Inter-Institutional Agreement between the European Parliament, the Council and the Commission on budgetary discipline and sound financial management, (2006/C 139/01) 14 June 2006.

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1. Financial Package: The case of Slovenia (http://www.svrez.gov.si)

2. The case of Croatia (europa.eu) • The Financial Package Chapter (Chapter 33) covers the rules on the financial resources

necessary for funding the EU budget (‘own resources’). These resources are made up mainly from contributions from Member States based on their own resources from customs duties and sugar levies; a resource based on value-added tax; and a resource based on the level of gross national income. Croatia will take over and implement the acquis under this chapter as from the date of accession;

Financial and budgetary provisions

Amount € millions Remarks:

Agriculture 250: Rural Development (2004-2006).

Slovenian farmers: to haveaccess to the same level of direct

payments as enjoyed by their colleagues from the EU Member

States as from 2007;-the levels of quotas and reference quantities: all above the production

levels in the country prior to accession;

Structural Actions:

Regional policy and coordination of structural instruments:

404: Total structural Instruments (2004-2006):

-236: Structural Funds;-168: Cohesion Fund;

Establishing and maintaining the

Schengen border:107 (2004-2006);

-45% of the total costs of the project;

Contribution to the EU Budget:

234: Lump sum payment (2004-2006) ;

-improves Slovenia’s positive net budgetary position from EUR 45

million (2003) to around EUR85 million (for each year in the

period 2004 – 2006).



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• This chapter also covers the financial allocations for Croatia as a Member State. The amounts and arrangements agreed are set out below. Croatia will also participate in the EU’s other actions and programs (internal policies) - from its accession. As there exist no pre-allocated envelopes by Member State for this other expenditure, specific amounts for Croatia are not fixed and are therefore not included in the Accession Treaty.

Financial and budgetary provisions

Amount € millions, current prices 2013 Remarks:

Structural measuresagreed for 2013

(accession 1 July 2013):

Structural Funds 299.6Cohesion Fund 149.8

European Fisheries Fund 8.7

As there is not yet a financial framework in place for the EU

beyond 2013, no specific amounts for the above structural measures from 2014 were agreed. However, it has been agreed that Croatia will

be subject to a continued phasing-in of these structural measures in 2014 and 2015. Accordingly, Croatia will receive funding at a rate of 70% in 2014 and 90% in 2015 of ‘normal’

funding in those years, with an adjustment to be made to ensure,

insofar as he limits of the new acquis allow, an increase of funds for Croatia in 2014 of 2.33 times

the 2013 allocation, and in 2015 of 3 times the 2013 allocation.

Agricultural / rural development

a) no post-accession rural development funding in 2013,

b) full access to rural development funding from 2014,

i.e. with no phasing-in,c) a full, 1-year allocation of

IPARD pre-accession funding available to Croatia in 2013

(€27.7 million), andd) access to the full amount of

25% of direct payments in 2013.

Temporary financial instruments (current

prices 2013 2014)

Schengen facility 40 80Transition facility 29

Cash-flow facility 75 28.6

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10.2. The Accession Treaty3

Remarks: The duration of negotiations: according to the speed of reform and alignment with EU laws by the candidate country. • The duration of negotiations can vary – starting at the same time as another country does

not represent a guarantee of concluding at the same time.

Concluding the negotiations1. Closing all the chapters:• Negotiations on any individual chapter:

9 Only closed when every EU government is satisfied with the candidate’s progress in that policy field;

9 Concluded definitively only once every chapter has been closed; 9 The closure decision of chapters shall unanimously be adopted by the

Intergovernmental Conference, following a positive recommendation from the European Commission (“Progress Report”) and the European Parliament.

2. Drafting the Accession Treaty:• Accession Document that certifies the country’s membership to the EU. It comprises:

9 Detailed terms and conditions of membership, 9 Transitional arrangements and deadlines, 9 Details of financial arrangements,

Summary of membership negotiations up to the Accession Treaty:• Beginning of membership negotiations (only when all EU governments agree on a

framework/mandate for negotiations: unanimous decision by the EU Council).• Negotiations: between ministers and ambassadors of the EU governments and the

candidate country: intergovernmental conference (IG).• Negotiations for each chapter are based on the following elements:

1. Screening –detailed examination by the Commission and the candidate country of each policy field (chapter), to determine how well the country is prepared.

2. Negotiating positions – before negotiations start, the candidate country must submit its position and the EU must adopt a common position(benchmarks set for each chapter);

1

3http://ec.europa.eu/enlargement/policy/steps-towards-joining/index_en.htm



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9 Any safeguard clauses.• Draft of the Treaty: - Prepared by a Working Group (representatives of the Member States and the candidate

country; - Assistance from the European Commission; - Contribution of the legal experts.

3. Signing of the Treaty:• After the IGC confirms the closure of accession negotiations,• A draft agreement is presented, • Followed by another assessment of the achieved arrangements (based on the principle

“nothing shall be agreed upon until everything is agreed upon”), • Gains the support of EU Council, the Commission, the European Parliament,• Signing of the Accession Treaty by the candidate country and representatives of all

Member States.

4. The Treaty is ratified by:• The candidate country,• Every individual EU Member State,• Ratification = in compliance with their constitutional rules

(Parliament vote, referendum, etc.).

The Accession Treaty4: incorporates the results from the negotiations on various subjects (negotiation chapters) • Arrangements, • Transitional periods, • Technical conditions etc.

Language: • Drafted in English;• Subsequently translated in the languages of all Member States (old and new), Remark: The Treaty - equivalent in all the languages.

Structure of the Treaty: • three parts:

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I. the Treaty per se;II. the Act of Accession:

• conditions according to which the candidate country can join;• safeguard clauses;

III. Annexes and Protocols• all conditions agreed upon separately by each country in the enlargement “wave”;• describe the conditions under which the negotiation chapters have been closed.

Remark: • When the Treaty is signed: the candidate country becomes the “acceding country”

and will become a full member of the European Union, at a set date, and after the ratification of the treaty.

• In the meantime: special arrangements (permission to comment on draft EU proposals/communications/ recommendations or initiatives);

• Active observer status on EU bodies and agencies (may express its position, but may not vote).

The entry into force of the Treaty, on a set date:• If there is even one EU member state which does not ratify the agreement within the set

time frame, it cannot enter into force. • If a candidate country (within a “wave”) does not ratify the agreement, the accession is

deemed effective for the rest of the states (if they successfully ratified it). Precedent: the case of Norway.


• Prepare a lot of risk analysis and market research studies before entering the “final deals” of accession negotiations;

• Consult the business interests, trade unions, NGOs, all economic and social partners for gathering the necessary information for governments in order to provide the most accurate impact studies to their negotiators;

• The candidate country has to ensure, in a timely manner, that the required capacities and structures for the sound management and effective control of Community financial instruments are in place, according to the acquis.

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CHAPTER 11 - Integration Capacity and Effective Implementation of the Negotiated Commitments and EU Rules

11.1. Fulfilling the Requirements for Functioning in the EU11.2. Addressing Administrative Capacity Problems11.3. Effective Policy Implementation11.4. Self-assessment for Effective Implementation11.5. European Integration – a Process of Internal Commitment

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CHAPTER 11


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INTEGRATION CAPACITY AND EFFECTIVE IMPLEMENTATION OF THE NEGOTIATED COMMITMENTS AND EU RULES

The current strategy of EU enlargement emphasizes on the “EU’s integration capacity” and the Commission underlines three areas where action is needed to ensure a totally successful enlargement of the Union (Sigma Paper 37, 2007):• Ensuring that the candidate countries fulfill the commitments taken during the negotiation

period;• Ensuring support from EU citizens for the enlargement;• Ensuring that the Union’s institutions, policies and budget sustain all the challenges created

by the enlargement.

Effective capacity to implement and enforce the rule and objectives of EU is relying on the administrative capacity of a new member state. Phedon Nicolaides (1999) is right when he says that without such a capacity, a new member, “even with the best of intentions”, would demonstrate that “legal acceptance of these rules does not automatically translate into ability to enforce them”. The administrative capacity refers to all means which enable a member state to reach these objectives:• Legal framework; • Organizational(administrative) framework;• Available resources;• Performance assessment procedures.

Developing and demonstrating effective administrative capacity represents a particular challenge to the candidate countries, both for preparing the accession and accession negotiations (EU side tends to over-play the significance of administrative capacity, while the candidate countries’ side wishes to play it down =>potential for causing disputes between the two sides). But when negotiations are completed and the Accession Treaty is signed,” the understanding is that the agreed-upon reforms will be fully completed by the accession date” (Summa, 2008).

In order to speed up the accession negotiation process, a candidate country has to determine the quality of its administrative capacity in each area of the acquis communautaire, and to persuade the Commission and Member States that there is that capacity (Annex no. 9).

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determining its rules, complying with them and using them to get advantages, we can define the effective membership (Nicolaides, 2003) to mean:• Ability to influence those rules in line with the European interest;• And its own national interests;• Enforcing the rules vigorously;• Using all opportunities provided by the Single Market;• Maximizing the effects of implementation of the European policies and absorption of EU funds.

11.1. Fulfilling the Requirements for Functioning in the EU• It refers to the development of an administrative system;• There is a contrast between frequent reform announcement and statement of intents by

the government of a candidate country and the perceived lack of progress reflected in the Commission Opinions and Progress Reports (for example, the cases of candidates countries from Central and Eastern Europe);

• There are three key elements of administrative reform that need to be developed: 9 What is the degree of the perception of lack of progress; 9 How the problems experienced by the candidate states could be explained; 9 What alternative strategies might be available to speed up the administrative development

process.• There are three main areas of administrative development to be reviewed:

9 The creation of a new civil service system (the development and implementation of a civil service legislation);

9 The development of training capacities; 9 The reform of administrative structures and processes, including the creation of

dedicated structures for the management of EU affairs;a. These three areas in the development of professional and reliable administrations are

essential requirements for the new Member States to function effectively in the EU;b. Civil Service legislation and policy are crucial elements in the stabilization, de-

politicization and professionalization of the civil service;c. Training is an important potential catalyst for change;d. And rationalization of administrative structures and procedures is instrumental in

creating a more effective and accountable administration.

Structural reform and re-designing the policy process:Even a high quality civil service can only function adequately if it is embedded in a well-designed administrative structures and processes, including functioning horizontal and vertical co-ordination

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systems and a clear accountability system, to provide civil servants with the necessary freedom of action.

There are three important elements:a. Improving policy process:• The re-definition of the role and position of ministries, their subordinations and the core

executive unit in the administration;• The reform of policy-making and implementation structures and systems;• The difficulties from former candidates countries are: top heavy co-ordination, leaving little or

no space for conflict resolution before issues reach the government, duplication of functions and lack of clearly defined accountability structures;

• Other point of importance is the development of impact assessment capacities at core executive units of governments.

b. Accountability systems:• In its assessment of administrative capacities in the candidate countries, the EU has placed

much emphasis on the development of capacities for internal and external financial control, as one element of the creation of new accountability system;

• Accountability systems are a crucial element of capacity development in relation to EU membership, in particular since the overwhelming majority of EU policy implementation is controlled nationally;

• The development of internal financial control and external audit capacities has been strongly advocated and supported by the EU;

• The question that may arise is whether there is a move towards the creation of modern, well-balanced accountability systems, including administrative, political, judicial and quasi-market accountability mechanisms.

c. European Integration(EI) management systems:• One area of structural development in which considerable progress has been made in candidate

countries is the creation of dedicated institutions and structures for the management of the European Integration process;

• Even though special decision-making structures at ministerial and senior official level have been put in place in most candidate states, these rarely function as real “filters” in the policy process;

• Most of the policy-making systems in the candidates countries lack a true arbitration institution;

• The strong position of line ministries and the high degree of collegiality in decision-making make it extremely difficult for arbitration systems to develop, leading to an overloaded of government agendas, much like in the “ordinary” policy arena.



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Place of the main secretarial units

Ministry of Foreign Affairs

Integrated part of the Center of

Government

Other ministry or independent administrative unit reporting

to the Center of Government

Countries Bulgaria, Hungary, Czech Republic

Estonia, Romania, Slovenia, Slovakia

Latvia, Lithuania, Poland

• The location of European secretariats has been a problematic issue in many candidate states, creating “turf wars” over control of the EI secretariat between the Ministry of Foreign Affairs and institutions concerned with management of “internal aspects” of EU affairs;

• Traditionally, EU secretariats in most Member States are located within the Ministry of Foreign Affairs;

Level 1:Top level decision Created or planned Not planned or

created

Special Council of Ministers MeetingsCouncil of Ministers plusAdvisory CouncilCouncil of Ministers, but filtered by Ministerial committees:Permanent and non permanent MembersCouncil of Ministers, prepared by ministerial committees with variable membership

BulgariaSlovakia

Czech Republic, Estonia,Latvia, Lithuania, Poland,

Hungary, Slovenia

Romania

Level 2 and level 3:Preparatory work

Permanent Committee of Deputy ministers or committee of senior civil servantsCommittee of deputy ministers and Committee of senior civil servants;Coordinating secretariatEuropean secretariat

Czech Republic, Lithuania,Hungary, Estonia, Poland,

Latvia, Slovenia,Bulgaria

all countries (de facto)

Romania(ad-hoc meetings),

Slovakia(ad-hoc meetings)

Table 11.1. Dedicated structures for EI-related decision-making (after A.J.G. Verheijen, 2000, p. 36)

Table 10.2.: Institutional location of EI secretariats (after A.J.G. Verheijen, 2000, p. 37)

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11.2. Addressing Administrative Capacity ProblemsFormal administrative capacity requirements for functioning effectively in the EU:

An interesting system for assessing the administrative capacity is the SIGMA baseline, which covers 6 core areas:• Policy-making and co-ordination machinery;

• There are three key aspects of administrative reform;• Often civil service legislation, where adopted in candidate countries, has not

been fully implemented, or has not been used as an instrument to further the development of a stable and professional civil service;

• Due to lack of investment in the development of indigenous training institutions, training is little more than a potential catalyst for administrative development;

• There is a lot of work to be done on the rationalization of administrative structures and policy processes and the development of a modern accountability system;

• The development of dedicated systems for the management of EU affairs.

!

The main issues in relation with the general quality of the public administration include:• The development of an impartial and professional administration;• The development of a training system;• Adequate policy development and policy co-ordination capacities;• An effective accountability system (with particular emphasis on the system of Internal and

External Financial Control);• The extent to which special structures and procedures have been put in place to manage

EU affairs.

• The development of capacities within line ministries to manage EU affairs has been an uneven process in candidates states;

• Generally, ministers have created special units for EU affairs, but there is significant variation as to the tasks and formal position of such units;

• In many cases and instances EI units often are not sufficiently integrated in policy development in the line ministries, and have only limited abilities to ensure that EU-related obligations are met;

• In general, European Integration issues were not well integrated in daily routine of line ministries at the beginning of accession process.



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• Civil service;• Financial management;• Public procurement;• Internal financial control;• External audit. Each of these 6 areas was developed in consultation with the EU.

Assessment element Baseline issues

External Audit

Statutory authority for the SAI to audit all public and statutory funds and resources, including EU fundsMeeting requirements set out in INTPOSAI auditing standardsNecessary operational and functional independenceReporting: regularity, fairness, timeliness, proper counterpart in the parliamentAwareness of EU accession process requirementsCapacity to upgrade quality of external audit

Civil Service

Legal status of civil servantsLegality, responsibility and accountability of public servantsImpartiality and integrity of [public servantsEfficiency in management of public servants and in control of staffingProfessionalism and stability of public servantsDevelopment of civil service capacities in the area of European Integration

Public Expenditure Management System

Inclusion of sound budgeting principles in the Constitution, OrganicBudget Law and/or related lawsBalance between executive and legislative powerExact definition of the scope of the State Budget and efficient arrangements for transfers to extra-budgetary fundsMedium term expenditure frameworkA logical, sequential and transparent Budget process, set out in clearly defined rulesEffective arrangements for the Budget management of Public InvestmentsEffective monitoring mechanisms for budget implementationCommon classification for accounting and reporting, compatible with concepts related to the disbursement of EU fundsCapacities for upgrading the Public Expediture Management system

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The ways of addressing to potential problems posed by enlargement are related:• To participation in the EU decision-making process and • To the ability to cope with the administrative workload generated by EU membership.

The enlargement process provides the opportunity to create the necessity of re-thinking the administrative capacity requirements to EU membership:The creation of an “administrative acquis”;• The redefinition of the relation between the Commission and the Member States.

Defining the administrative acquis:• A first attempt is the definition of the “baselines for administrative capacities”. The need for

Source: A.J.G. Verheijen, 2000

Assessment element Baseline issues

Public Procurement

Inclusion of a defined set of principles in public procurement legislationClear legal basis and adequate capacities for the central procurement organizationEffective mechanisms of procurement implementation and trainingPresence of control and complaints review proceduresCapacity for upgrading the Public Procurement system

Internal Financial Control

A coherent and comprehensive statutory base defining the system, principles and functioning of financial controlPresence of management control system and proceduresPresence of a functionally independent internal audit/inspectorate mechanismPresence of a system to prevent and take actions against irregularities and to enable recovery of damagesCapacity to upgrade financial control systems

External Audit

Statutory authority for the SAI to audit all public and statutory funds and resources, including EU fundsMeeting requirements set out in INTPOSAI auditing standardsNecessary operational and functional independenceReporting: regularity, fairness, timeliness, proper counterpart in the parliamentAwareness of EU accession process requirementsCapacity to upgrade quality of external audit



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• An active and intensive process of coaching, persuasion, advice and assistance offered to the candidate states;

• There is a need to enshrine and supplement this mutual trust as well as to review and adapt the way EU functions to the requirements of an enlarged Union;

• There is a need to adopt a set of minimum standards that administrations of member states should meet, based on shared administrative values;

• It is necessary to have a hierarchical, legalistic mode of operation to a co-operation networking system.

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11.3. Effective Policy Implementation• The internal market is the “heart” of the EU (Nicholaides, 2000);• Effective implementation and enforcement of the EU rules is the “last frontier” in the process

of creating a Single European Market without any impediment or barrier;• In contrast, it is “the first frontier” for the countries that aspire to join the EU.

The concepts and components of Effective Policy Implementation are:• Transpositions – legal process of incorporating the new set of rules into the national statute books;

Why is the “implementation capacity” an issue?• A look on internal market sets things clearly;• Most Community rules in the area of internal market are in form of Directives;• Directives have no direct applicability and, therefore, Member States have to draft

specific legislation according to their own legal systems and traditions in order to give effect to Community rules – transpositions;

• Incorrect application and lax enforcement of the rules by the candidates would constitute informal derogations.

achieving a certain degree of convergence in administrative capacities became obvious;• Differences in administrative capacity can affect competitiveness in the Internal Market.

Re-defining the relations between the Commission and Member States administrations:• The relation between Commission and Member States administration remains a “core-

periphery” relation;• A review of the role of Commission and the member state administration in EU policy

implementation and a re-definition of the patterns of interaction between them is therefore a necessity.

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• Application – includes the practical steps taken by the relevant authorities to put rules into effect;

• Compliance – the act of conformity, encompasses those actions undertaken for the purpose of conforming with the obligations imposed on them by those to whom the rules or the practical measures are addressed;

• Enforcement – can be pursued with the aid of intelligent procedures.

The candidate countries will have to devote a substantial amount of their budgetary resources to comply with the requirements of EU membership – for example for cleaning up their environment, improving the quality of their drinking water, regulating their telecoms operators, reinforcing their border control, training their civil servants, etc.The candidate countries need to understand the efficiency considerations enter the decision-making equation at two different levels:1. Trade-offs effectiveness and efficiency;2. Trade-offs does not exist because efficient measures are a subset of effective measures.

A simple recipe on how to develop effective capacity:• Begin by converting the general policy objectives into specific outcomes and performance targets;• Identify the most effective measures of achieving the outcomes and performance targets;• Within the group of effective measures, select those which are the most efficient;• Distinguish between structural problems and behavioral problems and devise appropriate ex

ante and ex post remedies.

Components of effective policy implementation:• Target – what?• Agent – who?• Means – how?• Evaluation – how well?The answers:• a legal framework (definitions of targets, agents and legal means);• an organizational (administrative) framework (structure of agents);• available resources (manning, equipment and practical means);• performance assessment procedures (evaluation).

• Effective implementation capacity - is broader than administrative capacity• Effective capacity = Self-learning capacity



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The five steps to determine effective implementing capacity:1. Objectives: set policy objectives and implementing instruments in terms of the legally

required obligations in the EU Directives;2. Output: define output in terms of verifiable indicators and quantitative/qualitative measures

of successful implementation of those obligations;3. Components: quantify/identify the relevant factors included in the four categories of

implementing components which can generate that output;4. Meta-analysis: evaluate both the inputs and the outputs in terms of required components

according to their effect on integration;5. Reform: adjust policy objectives and instruments as appropriate.

11.4. Self-assessment for Effective Implementation

For the candidate countries, the reference points for structuring a self-assessment system, should be the criteria used by the Commission for the evaluation of the accomplished criteria.

The Commission strategy for ensuring effective implementation of EU rules is:• Publication of the record in notifying transposition of EU Directives;• Dissemination of information and encouraging citizens and businesses to pursue their rights;• Initiation of infringement proceedings whenever Member States do not respond to remedy

issues of complaint or issues raised in the Commission’s reasoned opinions.

The commission has based its assessment of the performance on the following criteria:• Inadequate transposition;• Poor quality transposition;• Different transposition methods;• Uneven enforcement;• Discriminatory application;• Legislative gaps;• Overcomplicated rules.

It has to be noted the fact that - these criteria are neither defined further in much detail, in the documents. These criteria refer largely to the end result of implementation.

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The significance of Self-Assessment for Effective Policy Implementation:• The policy makers have to be aware of the criteria they use to assess policies, which are often

implicit or unspoken;• The criteria included in the text of EU legal acts are never sufficient;• The need for identification (and quantification) of tangible results, definition of evaluation

procedures and the use of meta-analysis lead to the conclusion that self-assessment mechanisms must be intrinsic components of any effective policy.

11.5. European Integration – a Process of Internal Commitment

Integration is perceived:• To be a process of “external” commitments (Treaties), where independent countries undertake

certain obligations towards each other;• As a process which is supported by those who gain from it and resisted by those who lose from it.

It is important to determine what sets the pre-integration state of equilibrium with restricted trade. Internal commitments matter both to the initial formation of a custom unions, common market, a.s.o., and to the continued success of any integrationist project after being established.

The typical weaknesses in the transpositions, application and enforcement of EU rules in the internal market area are:1. Transpositions delays;2. Interpretation problems;3. Incorrect application;4. Mutual recognition difficulties;

• The process of integration begins to roll when policy outcomes are packaged in the right way, so as to give the right incentives;

• The ideal partner country is the one that offers the most attractive market to the potential supporters of trade liberalization;

• External commitments between partner countries are adhered to when internal commitments are adhered to.

• Integration works when there are domestic groups to counterbalance the actions of opponents and when the domestic political bargains can also be adhered to.

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The heart of the problem related to the implementation of common policies deviates from the intention or spirit of that policy; it is also due to the fact that domestic policy-making essentially “decomposes” the processes that provided the “package” which made integration possible.

The solutions to the problems are:• Creative interpretation of the common rules, and building the bridges for other groups and

authorities to have their interests taken into account by domestic policy processes;• Trust and partnership;• Independent arbitration and regional cooperation

The credibility of national commitments is enhanced:• Not by preventing domestic lobbies from attempting to influence policy;• By narrowing the extent of creative interpretation of the rules by domestic policy-

implementing authorities;• By providing incentives for them to resist the political pressure;• By giving “a voice” to the interests of a partner country.

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CHAPTER 12 - Case study – Chapter 27 Environment (Croatia) 137

CHAPTER 12

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Experiences of the recent enlargements show that candidate states will have to be prepared for the entire process of accession negotiations. It is clear that accession negotiations will become a well-defined process, which will give the opportunity to strengthen the policies for the candidate countries. And this will take into account the environmental policy also.

Even though, the literature from the field of European negotiations contains many study cases which could be taken as examples for the accession negotiations (for example, for the Romanian case - Vasile Puşcaş, Negotiating with the European Union, 1, 2003). Our handbook choose to present the case of Croatia for the chapter 27 - Environment, because this is the most recent in the framework of the accession negotiation to the EU.

This example of negotiating the accession to the EU was taken from the following source: www.good-neighbours.org, without any modifications of the text printed by publisher:

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2003February 21: Croatia submitted a formal application for EU membershipJuly 10: European Commission presented Croatia with a questionnaireOctober 9: Croatia submitted answers to the EC questionnaire

2004April 20: European Commission replies to the answers with a positive AvisJune 18: Croatia receives official candidate statusDecember 20: European Council sets March 16 2005 for beginning the negotiations

2005March 16:Negotiations postponed by the EU CouncilOctober 4:Opening of negotiationsOctober 20:Beginning of the screening process

2006 April 3 – 11: Screening I (EC – Croatia) – Explanatory MeetingsMay 15 – 19: Screening II (Croatia – EC) – Bilateral Meetings

2007

February 1: European Commission presented to the Member States, Screening Report for the chapter 27, and proposed one opening benchmark.April 3: EU Council decides upon readiness of Croatia for the chapter opening or setting up additional benchmarks. Very same day, German presidency has officially informedCroatia regarding the opening benchmark for chapter 27.

2008

February 29: Croatia officially presented all documentation on fulfilment of the benchmarks for the chapter opening, to the EU Commission.June 25: EU Presidency invited Croatia to submit its Negotiations Positions for the chapter 27.July 10: Croatia submits Negotiating Position for Chapter 27 to the EU presidency, in which it requested transitional periods and two technical adjustments of EU Council Directives.

2009 Croatia negotiates its positions with the EU

2010

February 18: EU adopted its Common Position in chapter 27, that determined four closingbenchmarks.February 19: Formal chapter opening at the Intergovernmental conference.September 9: Croatia adopted and submitted final Report on fulfilment of the obligations in chapter 27 to the EU.November 11: Croatia adopted and submitted to the EU Presidency an Addendum to its Negotiations Position, in which it has altered its original requests for the Transitional Periods, but also introduced new Negotiations requests.December 22: EU adopted Common Positions for chapter 27 closure, in which it has accepted Negotiation positions of Croatia. The same day chapter has been closed at the Intergovernmental session.



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Adopting EU aquis

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Environmental Governance:Croatian Institutions and Legislation

With a population of 4.4 million, the Republic of Croatia is a unitary democratic parliamentary republic. The structure of its public administration is not overly complicated; one president and one prime minister, a government that in 2000 had 19 ministers in charge of particular sectors of activity with the help of four deputy prime ministers. On paper, Environmental protection had started in Croatia as early as 1990 with the Constitution (December 22, 1990) which includes an obligation to protect the environment and nature and ensures the right of citizens to a healthy environment. In October 1994, the Law on Environmental Protection (EPL) was adopted. This, along with the Constitution, was the legal basis for regulating environmental protection in Croatia, and any other environmental by-laws had to be in line with the fundamental law. It was the mother of all laws addressing environmental issues. Adopted in ’94 and revised in ’99, it took into consideration EU directives, the experience of developed countries and universally accepted principles of environmental protection. Fortunately, the large majority of regulations on environmental protection in Croatia had been harmonized with the two. Additionally, National Environmental Strategies and Action Plans were already geared to fit within the framework of relevant EU Directives. During the 1990’s Croatia’s environmental institutional structure lacked clear mandates and competencies. A single authority in charge of environmental policy did not exist. Instead, there were multiple ministries and institutions in charge of specific aspects of the environment. Coupled with a lack of cooperation between state institutions, this led to a very inefficient institutional setup regarding environmental issues. Prior to 2000 the structure changed a lot. The changes in competencies can be seen in the table below:

1990 – 1994 Ministry of Environmental Protection, Physical Planning & Construction

1995 – 1997 State Directorate for the Protection of Cultural and Natural Heritage

1997 – Ministry of Culture (The Nature Protection Directorate has been an integral part of the Ministry since 2004)

1997 – 2000 State Directorate for Nature and Environmental Protection

2000 – 2004 Ministry of Environmental Protection and Physical Planning

2004 – Present Ministry of Environmental Protection, Physical Planning & Construction



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In an attempt to centralize environmental protection, the Ministry of Environmental Protection and Physical Planning (MEPPP) was established in the year 2000 as the central body for general environmental policy, which would later become a focal point for EU negotiations in the area of environment. By 2003, the MEPPP had the following structure:

In addition to centralizing environmental institutions and passing environmental legislation, Croatia was also taking note of the governing principles of EU environmental policies even prior to applying for membership to the EU. The main principle governing environmental regulation in Croatia at the time was the prevention principle, which called for all preliminary environmental protection measures to be applied and an obligation for enterprises to cause minimal environmental pollution. Other principles were the precautionary principle, the integrity principle, the public participation principle, and the polluter-pays principle; all very essential in their own right. These principles were already called for in many directives such as the Polluter Pays Principle in the Waste Directive. They were already coming from European standards.

MEPPP

Cabinet of the Minister

Building Directorate

PR Department

Physical Planning Institute

Secretariat

Inspection Directorate

Nature ProtectionDirectorateInspetion Departments for all counties and the city of Zagreb

Environment and protection Directorate

Administrative-Legal Affairs DirectorateSub-sections for marine, coastal and oll protection

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Preparing for Negotiations

Negotiating Structure

On January 19, 2005 within the framework of preparations for negotiations, the Croatian Parliament adopted the “Declaration on the fundamental principles of negotiations for full membership of the Republic of Croatia in the European Union” and the “Decision on the establishment of the National Committee for Monitoring the Accession Negotiations” as a working body of the Parliament. On that date, the Croatian Parliament and the Government of the Republic of Croatia also adopted the “Statement on joint activities of the Government and the Parliament in the process of negotiations for EU membership”.

The Croatian Parliament played an important role in the process of EU integration. The Parliament established a special working body, the National Committee for Monitoring the Accession Negotiations of the Republic of Croatia to the European Union, which was given considerable powers.The Committee was agreed upon by the Prime Minister at the time, Ivo Sanader, and the leader of the social democrats, Ivica Racan, who was the first head of the Committee. Based on the rules and procedures, the head of the Committee needed to be from a political party in opposition. The Committee also had an obligation to approve each of the negotiating positions.

“Any negotiating position or change of the negotiating position could not be sent to Brussels without the approval of the National Committee, which the National Committee had to approve unanimously... In effect, it has veto power over the entire EU accession process of Croatia. A NO vote stops the process, only one NO vote...This was of course a big risk, but in our case, I think it paid off... To speak quite honestly, you have to be careful: the people who are in the Committee can disagree politically, but they have to agree on the fact that they want their country to become a member of the EU. There cannot be any kind of mavericks who will use their position in the committee to score political points here or there, playing short-termpoliticalgames.If youhaveasufficientnumberof peopleinoppositionandGovernmentwhoare seriously dedicated to this goal, then it is very useful...” (Vesna Pusic, Chairman of the National Committee for Monitoring the Accession Negotiations)

The National Committee consisted of 15 Parliament members and 4 outside members without voting rights who most often came from the academic community, employers’ associations and trade unions. The National Committee, led by the Chairperson of the Committee, held regularconsultations and exchanged information with the President of the Republic of Croatia,



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the President of the Government, the President of the Croatian Parliament, as well as other negotiating bodies.

Vladimir Drobnjak, Head of the Croatian Negotiating Team, shares his opinion of the Committee:“IthinkitwasthefirsttimeappliedinthisspecificformatinCroatiannegotiationsandwearerecommendingall the countries that are following us to embrace this idea...It proved to be extremely valuable... I think that itkeepstheGovernmentconfidentthatithasfullbackingfromtheParliament,becausethisisthebestwayto receive support across the political line and without the support this work is impossible.”

To better prepare and facilitate the coming negotiating process, the Government of the Republic of Croatia adopted a decision to establish a structure for accession negotiations with the EU on April 7, 2005. The Decision defined the organization and competences of the newly established bodies that form the structure for negotiations and which are entitled to sign the Accession Treaty once the negotiations complete.

By this Decision, six institutions/bodies were to be established in Croatia:Establishing these institutions was not an easy task as Boris Vujcic, Deputy Negotiator, remembers:

“It was a challenge in the beginning and I think, I would say, the success of the process of technical negotiations depends very much on this initial phase, when you decide how to set up the Negotiating Team and who to choose for the Negotiating Team. We had this, I would say, wide approach whereby we did not onlyincludepeoplefromthegovernment,fromtheofficialsector,butalsopeoplefromtheprivatesector.If nothing else than as observers, so that they can inform their constituencies what changes will come through the screening process.”

Preparations ContinueApart from preparation of the administrative negotiating structure, preparations in the sector itself continued based on the recommendations listed in the European Partnership and Avis. In the waste management sector, for example, Croatia drafted a Waste Management Strategy in October 2005 – an obligation that also stemmed from the Law on Waste adopted in 2004. Here, Croats described in detail all the areas they were falling behind in with regard to waste management. The chapter Current Situation: Evaluation of situation – problems and obstacles explicitly stated:

“The waste management system is not completely functional, which is inter alia due to partial and/or inadequate enforcement of prevailing regulations (non-respect and poor enforcement have been in fact

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identifiedasasignificantproblem).The followingdifficultieshavealsobeennoted: insufficientawarenessof the legalpersons that theyareaccountable for thewaste theygenerate insufficientknowledgeof wastemanagement practices and trends currently applied in the EU excessive number of unorganized, uncontrolled andenvironmentallydangerouslandfillsitespoorapplicationof marketbasedprinciplesandinsufficientuseof ‘polluter pays’ principle…The problem is especially acute in the sphere of hazardous waste…no disposal site has so far been put in place for hazardous waste…All types of waste, including hazardous waste, are currentlystoredonalmostalllandfillsitesinCroatia.”

This strategy was adopted on October 14, 2005, 11 days after the official opening of the negotiations. This strategy in detail talked about the problem with waste management in Croatia. It estimated that there were approximately 3000 uncontrolled dumpsites, which diminished the beauty of the natural landscape and polluted soil, water and air. It reflects on how much waste Croatia produced (~1.2 million tons in year 2000) and how little of it was recycled: “almost one half of the construction waste ends up on disposal sites destined for municipal waste.” In addition, “…as much as 80% of construction waste can be reused [but] only 7 percent is actually recycled…” Fines for polluters were inadequate, inspections scarce and education on the matter lacking.

Through examples such as these in the waste management sector, it can be seen that Croatia continued to prepare itself, showing its commitment to fulfilling obligations set out in the European Partnership and the Avis.

Screening (2005-2006)The first part of the negotiating process is the “screening” of each of the 35 chapters of the acquis. On October 20, 2005, the screening officially began.

The Screening process is one of the key stages of the accession process. This is the moment when the Commission explains the acquis to the candidate countries, and then the countries have to use the same language to explain where they are in comparison to the highest standard, i.e. the acquis. In short, for Croatia, it meant looking inward and identifying all gaps that needed to be filled, as well as identifying possible needs for transitional periods for individual chapters. For the European Commission, screening is the opportunity to assess the readiness of Croatia for the opening of substantive negotiations on individual chapters. Screening is conducted for each chapter of the acquis separately. It is an extensive joint exercise involving both EU officials and the candidate country.



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Eight days after screening began, the first Intergovernmental Conference, attended by the deputy heads of delegations/chief negotiators, was held in Brussels during which principles and procedures for accession negotiations were agreed upon and the initial working programme based on the programme for screening of individual chapters of negotiations was discussed.

Stage 1 – Explanatory meetings in Brussels, BelgiumCroatia attended the initial explanatory meeting held in Brussels together with Turkey between April 3 and 11 of 2006. In the explanatory sessions, the Commission explained the environmental acquis to the candidate countries. In the case of Croatia, all members of the Working Group for Environment went to Brussels and participated in the meetings in order to see exactly what was needed and how it would be developed. Experts from the Commission’s DGs, having analyzed the acquis, presented its substance chapter by chapter to Turkey and Croatia in the form of 76 explanatory presentations. During the seven working days, intensive explanatory presentations were held covering different aspects of the 27th chapter of the acquis: GMO’s, horizontal legislation including climate change and civil protection, water quality, nature protection, forests and forestry, soil protection, air quality, noise, waste legislation, waste, and chemicals.

“When we went to Brussels for 10 days for the first screening, we were just listening without being aware of the complexities of transposing the acquis. We were trying to absorb all the info thrown at us...But, there is no magic recipe. For us, it was about understanding the acquis, which cannot be done in one reading. It is about understanding the language and also where the flexibilities are to adapt it to Croatia’s situation.”

Working Groups were smaller in the beginning of negotiations but grew over time as more and more work came up. Working Groups for the Environment Chapter initially consisted of some 30 people, but eventually the group ended up with some 109 members from the relevant ministries and other relevant governmental bodies/agencies, business sector, business associations, NGOs, the Chamber of Commerce, and different Agencies. Major contributions were coming from line ministries during the screening process. Officials overseeing the process explained that the idea was to gather as many stakeholders as possible into the Working Group. This way, all relevant actors were well informed of the reforms that needed to occur within their industry.

Stage 2 – Bilateral Meetings, or so-called, Country ScreeningFollowing an intense week of meetings and extensive explanations of the acquis in Brussels, the

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working group members went back to Zagreb full of impressions. The next step required them to analyze how close Croatia was to the goal of harmonization with the acquis, and subsequently prepare presentations with that information. All the collected findings were compiled into presentations by the Croatians that were given during the second meetings of the screening process conducted in May 2006, between 15th and the 19th, again in Brussels, with each of the candidate countries separately. Therefore, during the bilateral meetings, the Croatian Delegation presented a very thorough picture of the state of the country and explained the degree of preparedness of the country and its plans with regard to the chapter in question. Overall, 89 people from Croatia went to Brussels to present Croatia’s preparedness for negotiations of chapter 27. Around half of the participants were coming from Croatian sectorial ministries involved in the environmental sector, and the rest of the Croatian delegation was coming from different institutions such as the Chamber of Commerce, Environmental Fund, NGOs and other institutions. In addition, the representatives of the Mission of the Republic of Croatia to the EU attended the presentations. During the four working days in Brussels around 40 presentations of the condition of Croatia’s environment were given to 49 EU representatives, mainly coming from the Environment Directorate-General, and 2 DG Enlargement representatives. The information gathered in these meetings served as a basis for member states to decide on the opening of accession negotiations on individual chapters.“Once a chapter has been screened, the Commission will, building on its recent Opinion on Croatia, recommendopeningitfornegotiations,providedCroatiaissufficientlyprepared.”

Screening Report and Opening BenchmarksThe European Commission then wrote a screening report. In February 2007, the European Commission formally submitted the first two parts of the Screening Report on the Environment. These are factual documents that described where Croatia was. An additional two parts – an assessment of the level of harmonization with the acquis and a recommendation for either opening negotiations or fulfilling benchmarks prior to opening the negotiations – was sent to the EU member states and Croatia. The assessment of the level of harmonization with the acquis in the Screening Report states that:“Croatia has achieved a satisfactory level of legislative alignment with the acquis in the environment chapter.Ithastakenconcretestepsinallfieldswithinthechaptertoprepareforthetranspositionof theremaining parts of the acquis... In general, the institutions responsible for implementation and enforcement are already in place at national, county and local level, though they need to be strengthened... The division of responsibilities for operational aspects of environmental protection amongst many different ministries and bodies at central and local level (including inspection activities) may impact negatively on effectiveimplementation, monitoring, enforcement and reporting in this chapter.



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However, in sectors such as waste management, the Screening Report acknowledged Croatia’s efforts to align with EU standards but also stressed that serious work was yet to come:

“In 2005 Croatia adopted the Waste Management Strategy, according to which 21 regional waste management centers will be built until 2025. It also foresees theclosureof allislandlandfillsandtransportof waste collected there to the chosen ports. The Croatian authorities assessed that administrative structures for the implementation of the Directive and inspection are established both at national and local level. Croatia expects no problems with transposition of the remaining provisions of the Directive, however, some difficultiesintheimplementationphase,duetohigh costs of investment needed (notably establishment of wastemanagementcenters).”

The assessment phase was of crucial importance for Croatia to understand the legislation it needed to transpose and to plan the implementation of that legislation. Most legislation, however, was drafted and passed – or amended – to better fit the acquis – between 2006 and 2008. By July 2007, there were 26 pieces of legislation regulating the field of waste management, of which four were in place before 2004, three of which were passed in 2004 and three in 2005. Then in 2006 and first months of 2007, some 12 pieces of legislation were passed and another four remained in process, to be passed later that year. After screening was completed and the Screening Report submitted, the decision on the opening of negotiations for individual chapters, depending on the evaluated readiness of the candidate country, was made by the Member States within the Council of the European Union. Within the Council, the Working Group for Enlargement discusses the screening report and determines Croatia’s ability to begin formal negotiations. Representatives of all member states sit at this working group. In this meeting, member states either make a decision to open the chapters or set further benchmarks for opening of the chapter.

The next phase included the meeting of COREPER, which made the final decision on opening chapters, or setting benchmarks. Following COREPER decision, the EU Presidency sent a letter to Croatia, inviting them to prepare a negotiating position or present them with opening benchmarks. Opening and closing benchmarks are new instruments designed by the EU that were used for the first time during Croatia’s accession negotiations. “Benchmarks ... aim at drawing a candidate country’s attention to the most important reforms on the path to the full alignment with the acquis. Benchmarksusuallyentailtheadoptionof newlaws,strategies,actionplansorfulfillmentof obligationsderivingfromtheStabilizationandAssociationAgreement(SAA).”

According to Croatian officials, this tremendously changed the mechanics of the process. There

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were overall 127 benchmarks: 23 opening benchmarks in 11 chapters, and 104 closing benchmarks in 31 chapters. For the Environment Chapter, there was one opening benchmark, communicated to the Croatian Government on April 3, 2007, in a letter from the German EU Presidency:

“Croatia should present to the Commission a comprehensive plan for putting in place the necessary administrativecapacityandrequiredfinancialresourcestoimplementtheenvironmentacquiswithtargetsand deadlines. This plan should be coherent with the process to complete the legislative alignment and the start of implementation“

The communicated benchmark sounded familiar to the Croats. This was an area that needed a lot more work, to both coordinate the various levels of government and all the ministries involved in environmental protection, but also to build the capacities needed to implement the new or amended laws. The growing frustration was shown in Mira Medic’s account of their response:

“The opening benchmark was imposed on us. We had no idea how to develop this... Maybe the EC had an idea what they wanted this document to look like, but they did not tell us... So, we applied an educated guess about how many people we need on different sectors. But we were not 100% correct. Our expressed needs were too low.... Therefore, we asked each ministry to come up with their plans for staff and their departments. And, this worked.”

The result was an extensive 300-page document describing in detail administrative and financial capacities within the environmental sector. By February 2008, the Croatian Government had adopted this document titled “Plan for Setting up Necessary Administrative Capacities at National, Regional and Local Level and Required Financial Resources for Implementing the Acquis.”

To illustrate the magnitude of the document and reorganization that was about to take place within the Croatian environmental sector, let us look at their plan to improve the capacities of only one segment of environment – again, the waste management sector. Most of the responsibilities in the field of environment, more specifically waste management, fell on the Ministry for Environmental Protection, Physical Planning and Construction (MEPPPC): legislation, drafting waste management strategy but also issuing permits for incineration of waste or hazardous waste management. Below MEPPPC are counties and the City of Zagreb, as well as towns and municipalities. It is this very local level that has to implement waste management legislation since waste collection and management is done locally. MEPPPC also monitors two agencies that have played a key role in Waste Management in Croatia, the Environmental Protection and Energy Efficiency Fund



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(EPEEF) and the Croatian Environmental Agency (CEA). Through the reorganization of the MEPPPC, a Waste Sector was established within the Directorate for Environmental Management. The Sector consists of the following departments: the Department for Waste Management and Department for Plans and Projects.” The Department for Waste Management had ten employees, and the idea was to hire three more by 2009. The Environmental Protection and Energy Efficiency Fund had a staff of 27 on tasks related to waste management. The plan here was to increase this number to 30 by 2009. One department that was found deficient of staff was the Environmental Inspection Services. As a response, the Plan foresaw hiring 22 new personnel by 2008, which would have been an increase of 35% from the baseline of 2006. This however proved problematic, since due to the financial crisis in 2008, the Government of Croatia had adopted a decision to stop recruitment. This was reversed a year later with another decision allowing the hiring of more staff if it is for the purpose of meeting EU criteria. In May 2008, the European Commission sent a team to verify the fulfillment of the opening benchmark for the Environment Chapter and in June 2008, Croatia was invited to present its Negotiating Position.

“After we fulfilled the opening benchmarks we started preparing our negotiating positions and then westarted negotiating.”

Negotiating PositionBy 2008, Croatia had a very good idea of where it stood and what it still needed to do in order to meet criteria regarding the environment. During this phase, the subject of negotiations was the conditions under which Croatia would adopt and implement the acquis communautaire in the respective chapter, including transitional periods, which the candidate country might have requested.

“Starting the negotiations was a key turning point, because when you start something there is also an end. Then, it isaprocesswhereyoufulfill therequirements,systematically.Then, it isamatterof planning,how and when to do this. This is what negotiations are about. It is not that you negotiate in a way that you can change the Union – no; you must change yourself. Finally, you negotiate the timing of such changes. Accession negotiations mean making a time schedule for your reforms.”

The negotiating position, prepared in line with the screening results for Chapter 27: Environment, served as the basis for substantive negotiations. This 90–page long document could have only been drafted once an assessment of the situation was already done and there was detailed knowledge

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about the field, including the administrative capacities, polluters, costs etc. As a candidate country, Croatia was the first to present its negotiating position, which in short, gave a description of what Croatia has done so far – the various EU Directives and Regulations adopted – and specified the plan and mode of adoption and implementation of the acquis, along with a description of its institutional capacity. The only thing, which was a true ‘negotiating position,’ in the literal sense of the word, was the request that Croatia put forward to obtain transitional periods for implementing the most difficult and costly bits of EU legislation it had adopted. Croatia initially asked for 14 transitional periods and 2 requirements for technical adjustments: for Directive on the conservation of natural habitats and of wild fauna and flora, and for Directive on the conservation of wild birds. The longest transitional period requested by Croatia was within the water sector. Croatia asked for a transitional period for the full implementation of Council Directive on Urban Waste Water until December 31, 2030, which referred to the deadline for construction of sewerage and wastewater treatment systems. The next longest transitional periods (until 2020) were asked for full implementation or application of the three following directives:

• Council Directive on the disposal of waste in regard to the reduction of biodegradable municipal waste

• Council Directive establishing framework for Community action in the area of water policy in relation to achieving good water status

• Council Directive on the quality of water intended for human consumption, which transitional period referred to the periods of construction of public water supply to ensure supply of drinking water of appropriate quality.

The Negotiating Position was adopted by the Croatian Government on July 10, 2008 and presented to the EU on July 11, 2008. Five months later, the EU Council presented its opening Draft Common Position to Croatia.

However, despite Croatia’s efforts towards continuity in negotiations, and willingness to fulfill all the imposed conditions, negotiations were held back from the end of 2008 until September 2009 due to the Slovenian border dispute.

“Chapter 27 was not opened because of the Slovenian blockade. Informally, the Commission told us that wefulfilledtheopeningbenchmarkandthentheytolduswhatourclosingbenchmarkswouldbe,sowecouldworkonit.Thisenabledustofinalizenegotiationsintime.”



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Therefore, Croatia continued to prepare and conduct necessary reforms in the environmental sector so as to be prepared once the arbitrary agreement of the border dispute between the two ex-Yugoslav countries was resolved. Moreover, it explains how it was possible that some conditions defined in the DCP, and formally given to Croatia in February 2010, were reported as fulfilled in the draft of the Croatian Report on the Fulfillment of Obligations under Chapter 27 in March 2010.

DCP and Closing Benchmark• The EU’s Draft Common Position took into account Croatia’s negotiating position and

defined the closing benchmarks to be fulfilled before negotiations on specific chapters can be temporarily closed. These closing benchmarks were intended to ensure that alignment with the acquis was completed. The Position listed four closing benchmarks for Chapter 27: Environment:

• Croatia adopts legislation aimed at transposing the acquis in the field of water quality, notably the new Water Act and the new Water Management Financing Act and makes further significant progress in legislative alignment in this sector by adopting implementing legislation.

• Croatia adopts legislation aimed at transposing the acquis in the field of industrial pollution control and risk management and ensures that definitions, notably related to installations, are aligned with the acquis.

• Croatia continues its alignment with the acquis in the remaining sectors of this chapter and demonstrates that it will be fully prepared to ensure the implementation and enforcement of the EU requirements at the date of accession.

• Croatia continues capacity building of the administrative bodies at all levels, including inspection services, in line with the Action Plan, further improves coordination of work and demonstrates that all appropriate administrative structures will be in place in good time before accession to enable implementation and enforcement of the acquis in all sectors of this chapter.

To fully transpose the acquis and improve the specific sectors within the chapter, especially water and industrial pollution control, Croatia adopted a vast number of laws and implementing legislation, during 2008 and 2009. This enabled Croatia to fulfill the first three closing benchmarks. In order to fulfill the final closing benchmark, Croatia actively kept on working to strengthen environmental administrative capacities. Measures were taken at all administrative levels in line with the “Plan for Setting up Necessary Administrative Capacities at National, Regional and Local Level and Required Financial Resources for Implementing the Acquis” (2008). In this sense, most

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ministries and specialized institutions/agencies were reorganized during 2008 and early 2009 for the purpose of strengthening administrative capacities and effective enforcement of legislation on environmental protection. On November 4, 2009, an Arbitration Agreement between Croatia and Slovenia was finally signed in Stockholm by both countries’ prime ministers as well as the President of the EU. This enabled Croatia to continue negotiations. With the border dispute settled and having received the Croatian Negotiating Position in July of 2008, the Commission adopted its Draft Common Position on February 18, 2010. The Commission discussed the DCP with Croatia at the Accession.

Closing the ChapterOn December 22, 2010, the Environment Chapter was provisionally closed at the Intergovernmental Accession Conference. At first sight, the speed with which the negotiations on a single chapter were opened and closed (within eight months in this case) seems surprising. The Environment Chapter (chapter 27) is considered one of the most demanding due to the complex set of legislation it has and the very expensive reforms it demands. According to the Waste Management Strategy, “the financingnecessaryfortherealizationof thisStrategyoverthenext20yearsisestimatedat3.25billionEuro,” and this is only for waste management, not counting the costs for the implementation of the other parts of this chapter.

ConclusionThe Environmental Chapter may have been complex and large in scope, but the benefits of adopting the environmental acquis into national legislature is irrefutable: better public health, less damage to natural resources, promotion of tourism, support for employment and benefits, increased economic efficiency, and lastly, social benefits through greater learning and involvement. According to Croatian officials, the point of the integration process was not to check off boxes and appear aligned with the EU on paper, but rather the point was to push the country towards a more functional and regulated system. Reforms may have been conditions for joining the EU, but:

“these are things that we were doing for ourselves, not for the EU. Reforms should be carried out regardless of the EU. The EU just came as an accelerator of the entire process.”

The accession process is a learning process. Chief Negotiator Drobnjak gave an interview recently for the Croatian daily ‘Jutarnji List’ where he pointed out that over 3,000 people were involved in the accession process from the Croatian side. And that “whoever went through this process from beginning to the end came out with far more knowledge of the EU and with far more understanding of what the EU is. They all know more today than they knew in 2005.”



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Annex no. 1 – Selection of cases before the ECJ:

C-286/08, Commission v Hellenic RepublicECJ 10.08.2009, OJ C 223 30.08.2008 Greece has failed to fulfil its obligations of Council Directive 91/689/EEC on hazardous waste and of Directive 2006/12/EC on waste as well as of Council Directive 1999/31/EC on the landfill of waste. Greece has failed to draw up a hazardous-waste management plan that accords with the requirements of the Community legislation and to establish an integrated and adequate network of disposal installations for hazardous waste, to fulfil obligations so far as concerns the management and landfill of waste. (Judgement available in Greek and French) Sector(s): Waste

C-368/08, Commission v. GreeceECJ 19-05-2009Greece has been condemned by the ECJ for its failure to adopt, within the prescribed period (deadline 30 April 2007) all necessary provisions to comply with Directive 2004/35/EC on environmental liability with regard to the prevention and remedying of environmental damage. Sector: General

Commission vs. Greece ECJ 118, 18.05.2002, Case C-64/01Failure to notify measures transposing Council Directive 96/91/EEC concerning integrated pollution prevention and controlThe Greek authorities have notified the Commission of Act 3010/02 amending the general Environment Act and ministerial decision 15393/2332/5.08.02, which specifies the activities for which integrated prevention and control measures are required.Scrutiny of the legislative, regulatory and administrative measures notified reveals that they do not fully give affect to the judgment.Article 228 proceedings have been commenced.

Commission vs. GreeceECJ 06.12.2001, Case C-133/00Failure to notify measures to transpose Council Directive 97/41/EC relating to the fixing of

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maximum levels for pesticide residues, Commission Directive 98/51/EC concerning arrangements for approving and registering certain establishments and intermediaries operating in the animal feed sector, and Commission Directive 98/67/ECArticle 228 proceedings have been commenced. Commission vs. GreeceECJ 06.12.2001, Case C-166/00Failure to notify measures to transpose Council Directive 97/41/EC relating to the fixing of maximum levels for pesticide residues, Commission Directive 98/51/EC concerning arrangements for approving and registering certain establishments and intermediaries operating in the animal feed sector, and Commission Directive 98/67/ECArticle 228 proceedings have been commenced.

Commission vs. GreeceECJ 11.10.2001, Case C-457/99Failure to notify measures implementing Council Directive 95/69/EC laying down the conditions and arrangements for approving and registering certain establishments and intermediaries operating in the animal feed sector.In December 2002 the Greek authorities notified the national measures transposing the Directive.

Commission vs. GreeceECJ 04.07.2002, Case C-173/01Failure to notify measures implementing Council Directive 1999/20/EC The Commission has contacted the Greek authorities to ascertain what measures are planned to comply with the Court’s judgment.

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Annex no.2 – The waves of EU Enlargement

Date New member states Total number of member states

23 July 19511 January 1958

Germany, Belgium, France, ItalyLuxemburg, Netherlands 6

1 January 1973 Denmark, Ireland,United Kingdom 9

1 January 1981 Greece 10

1 January 1986 Spain, Portugal 12

3 October 1990 Ex-DDR (reunification of Germany) 12

1 January 1995 Austria, Finland, Sweden 15

1 May 2004Cyprus, Estonia\Hungary, Latvia

Lithuania, Malta, PolandCzech Republic, Slovakia, Slovenia

25

1 January 2007 Romania, Bulgaria 27

1 July 2013 Croatia 28

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Annex no.3

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Annex no. 4 – Adapting institutions for the implementation of the accession requirements (case of Environment chapter)

Implementation Challenges and ConstraintsRomania is a country in transition. What this means for many people is that it is undergoing a transition from a planned to a market economy, with many of the reforms focused on clarifying and strengthening the incentives for the private sector. However, the transition period also features massive changes in the institutions of governance. Romania is trying to downsize government but at the same time maintain or improve its capacity to provide the services expected of its ministries and agencies.

At the same time, Romania faces new challenges as it prepares to join the European Union as a full member, with membership now anticipated in 2007. Not surprisingly, change is rapid in a transition period. Over a 28-month assistance period, the EPIQ team has witnessed many changes in the Ministry and in government, many of themresulting in significant effects on the EPIQ program and the nature of its assistance and cooperation with counterparts. These implementation challenges and constraints are summarized below. In later sections, these constraints are discussed in more detail in the context of their direct implications for specific tasks.

Management Changes in the MinistryOver the course of the EPIQ program, the Ministry of Waters, Forestry, and Environmental Protection underwent several changes. In December 2000, there was a change of government and a new Minister was appointed in January 2001. In the months leading up to this change, it was quite apparent to those in the Ministry that a new government was imminent. It became very difficult to advance ministerial orders or new legislation as the attention of senior officials in the ministry and government was diverted to the elections and the implications for management in the ministry. As a result, EPIQ encountered some difficulty in advancing regulations for the system of self-financing and administration of the national fund in the last three months of 2000.

The appointment of a new Minister was accompanied by a ministry-wide restructuring plan. Responsibilities for forestry were shifted out of the ministry to the Ministry of Agriculture and Food (which was renamed the Ministry of Agriculture, Food, and Forests). A government-wide initiative established the senior management position of State Secretary in lieu of Deputy Minister. In the renamed Ministry of Waters and Environmental Protection (MWEP), four

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State Secretary positions were established. Notably, one of the new positions, State Secretary for European Integration, signaled the importance and commitment of the new government to fulfill its campaign promise and press for membership in the EU.

Prior to the reorganization, the EPIQ program.’s main counterparts in the ministry were the water and environmental protection departments. With the reorganization, emphasis in the EPIQ program shifted to the departments tasked with preparation for EU accession. Another aspect of the reorganization concerned the local environmental agencies at the judet level. Prior to the reorganization, these agencies were autonomous entities. As noted earlier, EPIQ had pushed for the introduction of a system of permitting fees that would enable the local agencies to .“selffinance .” a major portion of their management costs. However, through a movement to consolidate management authority, the local agencies were subordinated to the Ministry and renamed environmental protection inspectorates. This change also included concomitant obligation for the ministry to provide financial support for the inspectorates. The effect of this consolidation on the EPIQ program was to shift the emphasis of Activity 3 from support for the system of self-financing toward greater assistance for the alignment of permitting and licensingprocedures with EU legislation (more discussion in Chapter 6).

In the beginning of 2002, Minister Ilie was appointed as the Romanian ambassador to the Republic of Russia and replaced by Petru Lificiu, then State Secretary for European Integration. This change resulted in a few minor changes in the ministry.’s management structure but no reorganization or shift in priorities or EPIQ.’s counterparts. Nevertheless, over the course of the task order, there were two changes in leadership and one major reorganization. Four out of five of EPIQ.’s counterparts (chairpersons for the three working groups) were changed during the task order.

Staffing Levels and SkillsWith the appointment of a new Minister in January 2001, there was also a spate of new appointments at the level of Director in the Ministry. All Directors, whether they were in the ministry previously or newly appointed, were required to pass examinations before they were confirmed in their positions. Until these examinations were administered late in March 2001, all directors.’ positions were designated as .“temporary..” During this time, EPIQ.’s ability to work with counterparts was significantly limited. Once the examinations were completed, EPIQ began to work more closely with the directors, particularly those working on preparations for negotiations with the EU.

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The process of recruiting staff at the level of director was very slow in the ministry. Several director positions were not filled for more than six months, including the position of Director for the Economic Policy Department. Effectively, a department could not be considered operational until its director was in place to recruit staff. As a result, the ministry was slow to recruit staff with economics training. This hampered EPIQ.’s plans to transfer knowledge and skills in certain analytical areas to staff in the ministry. As part of its campaign promises, the new government pledged to downsize government. This decision had an immediate effect on the inspectorates, whose staff was decreased by more than 10%. This downsizing policy came at a time, however, when EPIQ perceived that the ministry needed to expand its analytical capacity to deal with the preparations for negotiations with the EU. In the next few years, the ministry will also need to rebuild staffs at the environmental protection inspectorates to administer the body of EU environmental legislation.

The mix of skills and staffing shortages in the ministry has had a profound effect on the relationship between the EPIQ team and ministry staff. The ministry has utilized the EPIQ team more as a specialized staff than as advisors, relying on EPIQ to conduct economic and financial analyses, draft legislation, and prepare procedures, guidelines, and manuals; in effect, to plug gaps in the ministry.’s skill set.

Beginning in 2000, the Government.’s legislative reform and strategic planning agenda shifted to the transposition and implementation of EU legislation. For MWEP, this effort focused on implementation of the environmental acquis communautaire. The key document in this effort was the Position Document for the Environment Chapter, which outlined the intent and timetable for transposing and implementing EU environmental directives.

In the work plan, the EPIQ program had been structured around the theme of sustaining institutions and financing for environment through the elaboration of realistic strategies and policies. With the ministry focusing considerable attention on the EU accession process and the start-up of negotiations with the EU, EPIQ was requested to more closely align its assistance efforts to the preparation of analysis, documentation, and legislation in support of the Position Document and other materials needed for negotiations. In addition, EPIQ concentrated a considerable amount of its resources on the solid waste sector, as this sector was established as the first priority in EU negotiations. Source: Final Report Romania Environmental Policy and Institutional Restructuring, august 2003 <Internet source [www.irgltd.com/.../2003-08%20Romania%...]>

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Annex no. 5 – Study case:

The idiosyncratic analysis of Romanian Accession Negotiations -individual level of Chief Negotiator-

(after G.Ciot, “Modelul Negociatorului” [Negotiator Model], Cluj-Napoca, 2012)

• four categories of idiosyncrasies have been identified: cognitive, social perception, motivational and emotional. They were evidenced from discourse analysis of media intervention of Romanian Chief Negotiator;

• from cognitive idiosyncrasies were identified the following categories: framing, anchoring, availability (which underlined the connection with prospect theory in the analyzed case), utility, perceptual frame/cognitive (based on relation, emotional-intellectual, compromise-gain), task perception, cognitive consistency, idiosyncrasies linked with de cognitive content, idiosyncrasies linked with cognitive process, evoked set, conceptual complexity, integrative complexity, idiosyncrasies of verbal style (through calificators,pronounsatfirstperson,explanations,attributors,adverbialintensificatorsanddirectreferences), way of presenting events (style explicatory optimistic), constructs which influence decisional style (dyad flexible-rigid), images, historical analogies, learning and cognitive-affective maps.

• Idiosyncrasies of social perception, focus on Self and Others: transparency (focused on self), perspective approach (focused on self), prioritizing his own interests (focused on others), knowing the other part (focused on others).

• The Code of Operational Analysis was elaborated and structured after the beliefs system (for more information see Ciot, 2012, p. 336-338). There were identified two categories of beliefs system: philosophical and instrumental, with sub-divisions:....(a) philosophical beliefs: essential nature of the world (principal philosophical be life), optimism, predictability, ability of control, role played by chance and (b) instrumental beliefs: direction of strategy (principal instrumental belief), intensityof tactics,orientationof risk,periodization/flexibilityof tactics, power exercise.

• The values (moral and social) of beliefs system were: work, professionalism, responsibility, engagement, implication, perseverance, dedication, evolution/developing.

• The motivational idiosyncrasies were: self-realization (using the available resources for reaching the proposed objectives), coherency and balance, cooperation (future interaction, orientation of social value, common orientations) and responsibility.

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It is to be mentioned the fact that at the base of the actions of Chief Negotiator was the reason of realization and the reason of self-overcome. It is important to be mentioned, also, that the actions with social value, which imply responsibility, realization, coherency and balance, and future interactions are the ones which motivated the Chief Negotiator.

• From emotional idiosyncrasies were identified positive emotions (happiness, desire, hope, etc.) and negative emotions (sadness, discomfort, anger, etc.).

• Regarding the leadership style used by the Romanian Chief Negotiator, he was a goals motivated leader (Romania’s accession to the EU), focused on problems solving, oriented to mission, hardly changing his position or ideology. If we take as reference point the four leadership style realized by Hermann (2001), the Romanian Chief Negotiator belong to strategic style, th one which confronts the constrains, but opened to information. This type of leader knows what he wants and he will search pertinent information to reach his goals. He is courageous, but advised when it comes about quality, in these ambitious aspirations (Romania’s accession to the EU). The strategic leader, Romanian Chief Negotiator, in motivational reasons, belonged to the charismatic leader, focused on relations, determining others to act. By synthetized the three dimensions, we have in the person of Romanian Chief Negotiator, a goal-oriented leader. Adept of the Rational Actor model of decision, the presence of rational verbal indicators shows an attempt to decrease the influence of idiosyncrasies, but this isn’t realized in a conscious manner. By his profession, by the presence of cognitive idiosyncrasy of learning by analogy, the Romanian Chief Negotiator belongs to this category. After the classification of R.W. Miller and J.B. Miller, it was appreciated that Romanian Chief Negotiator, belonged to transformational type (a new accession strategy, with a new dynamics), with charismatic and collaborative type.

• The four identified categories of idiosyncrasies, especially beliefs and reasons framed the world vision of Romanian Chief Negotiator. In this case, it could be appreciated that Chief Negotiator was a fine “connoisseur” of realities of international relations field, mainly the external context where the process of accession negotiations were developed, fact that explains why he was oriented to the framing of internal and external negotiation environment and to the principle of transparency.

• It could be appreciated that in the decisional process of Romania’s accession to the EU there were influential idiosyncrasies: cognitive, social perception, motivational and emotional.

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Annex no. 6 – The Institutional Structure of EU Accession Negotiation (source: Puşcaş, 2006, p. 201)

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Annex no. 7 – Derogation/Transitional Period: Case of Republic of Slovenia

Chapter 1Free Movement of GoodsDerogation/Transitional PeriodA transitional period until 31 December 2007 for the revision of documentation required for the renewal of marketing authorizations for those pharmaceuticals for human use listed in CONF-SI 4/01 - deviation from Directive 2001/83 ES.

Chapter 2Movement of PersonsDerogation/Transitional PeriodTransitional period of the EU in respect to free movement of workers. The EU Member States may maintain national measures (the same regime regarding employment of Slovene nationals as currently in place) for two years after Slovenia’s accession. After two years, the Council makes a review on the basis of the Commission’s report. Only the Member States which explicitly announce that they would like to maintain the national provisions may do so for another three years.In the event that any Member State continues to apply the national measures, Slovenia may in this period require another review of the Council. After five years, a transitional period may be prolonged for the maximum of two years only by the Member States which explicitly requireprolongation in the case of serious disturbances of the labour market or threat thereof.Any current Member State which has decided not to apply the transitional period may invoke a safeguard clause (in case of serious disturbances of the labour market or threat thereof) until the end of the seventh year following Slovenia’s accession. Slovenia may apply to nationals fromcurrent Member States the national measures equivalent to the measures applied by that Member

Chapter 3Freedom to Provide ServicesDerogation/Transitional PeriodA transitional period until 31 December 2004 for the application of capital adequacy requirements and the requirements concerning prudent management as set out in Second Banking Directive 89/646/EEC, and Directives 86/635/EEC, 89/299/EEC, 89/647/EEC, 92/121/EEC, 94/19/EC for the savings and loan undertakings that were established before 20 February 1999. The institutions in question cannot benefit from the “European passport” for operating in the single market during this period.

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Chapter 4Free Movement of CapitalDerogation/Transitional PeriodSafeguard clause until 1 May 2001 for restricting real estate trade. In the event of serious disturbances in the real estate market in the period from Slovenia’s accession to 1 May 2011, Slovenia may require of the European Commission to approve safeguard measures necessary foreliminating such disturbances.

Chapter 7AgricultureDerogation/Transitional PeriodTransitional period for the existing facilities for laying hens in battery cages:-until 1 January 2004 concerning the minimum cage floor area for laying hens (Directive 1999/74/EC)-until 31 December 2009 concerning cage construction (Directive 1999/74/EC)

A 5-year transitional period for payment of state aid in the form of area payments for the production of oil pumpkins.

A 5-year transitional period upon accession to the EU for marketing on the territory of the Republic of Slovenia the seeds and propagating material of some varieties of agricultural plant species and vegetable plant species which do not meet the requirements of Directives 2002/53/EC and 2002/55/EC or it had not been checked before entry into the national list of varieties whether they meet these requirements. The Republic of Slovenia requests that, within a 5-year transitional period upon accession to the EU, it would be allowed to postpone the application on its territory of Directives 2002/53/EC and 2002/55/EC with regard to the marketing on its territory of seeds and propagating material of those varieties listed in its national list of varieties which have not been accepted in accordance with all the provisions of these Directives.

1-year transitional period in the following areas:- “additional levies in the milk sector - milk quotas“ (Council Regulation 3950/92/EEC) in the part relating to the distribution of quotasto individual breeders,- “suckler-cow premium rights” (Council Regulation 1254/99/EC) in the part relating to the distribution of rights to individual breeders,- “sheep and goat premium rights” (Council Regulation 2467/98/EC) in the part relating to the

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distribution of rights to individualbreeders.

Regarding the provisions prohibiting the blending of white and red grape varieties (Council Regulation 822/87/EEC) and provisions on minimum alcoholic strength by volume in wine (Council Regulation 822/87/EEC, Articles 8 and 70), the blending of white and red grape varieties is allowed for cvicek PTP wine – a recognised traditional denomination (permanent derogation for Slovenia). Its minimum alcoholic strength by volume is defined at 8.5%. This enables the production, selling and drinking of the traditional wine cvicek, which otherwise does not comply with the acquis.

Chapter 10TaxationDerogation/Transitional PeriodDerogations from Sixth Council Directive 77/388/EEC concerning the application of a reduced value-added tax rate for goods and services concerning consumer goods in a broader sense, or being significant for the maintenance of national identity:a) Preparation of mealsA transitional period concerning the application of a reduced value-added tax rate for the preparation of meals in the period until 31 December 2007 or until the end of the transitional period referred to in Article 28 (1) of the Sixth VAT Directive, whichever date comes first. A declaration will be added to the Accession Treaty stating that if the transitional period referred to in Article 28(l) of the Sixth VAT Directive does not end by mid 2007 and the relevant legislative proposal for its termination is not at such stage to allow the termination of the said transitional period by the end of 2007, it will request a report from the Commission to the Council on the functioning of the transitional period granted to Slovenia. This report will have to take into account the impact on proper functioning of the Internal market and possible adverse consequences for Slovenian restaurant sector, in particular job losses, an increase in undeclared employment, and the impact of price increases of restaurant services on the final consumer. Upon the expiration of transitional period, Slovenia will introduce the standard rate in one step.b) Construction, renovation and maintenance of all housing facilities and special buildings for the accommodation for the disabledA transitional period concerning the application of a reduced value-added tax rate until 31 December 2007c) A transitional period for the preservation of derogation, in accordance with which Slovenia does not apply

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VAT to the services of international and intra-community transport of passengers in maritime, air and railroad transportThis transitional period is a derogation and applies until the Council abolishes the derogation set out in Article 28 (3) (b) of the Sixth VAT Directive in accordance with the procedure in Article 28(4) of that Directive, or so long as the same derogation is applied to any of the current Member States, whichever date comes first.

A derogation from the provisions of Sixth Council Directive 77/388/EEC concerning the ceiling below which taxable persons are allowed to apply simplified procedures (special scheme) for charging value-added tax. Slovenia retains the existing legislation which sets this ceiling at SIT 5 million (the equivalent of around EUR 25,000 at the time of negotiations) for the annual turnover of goods and services and a ceiling of SIT 1.5 million (the equivalent of around EUR 7,500 at the time of negotiations) in agriculture and forestry. The principle applies that exemptions do not dispense from the general obligations, in particular in the case of SME’s involved in intra-Community trade (including Article 9(2) transactions). Slovenia must take the necessary step to ensure that any exemption has no adverse effects on the European Communities’ own resources accruing from VAT, the basis of assessment for which must be reconstituted in accordance with Regulation (EEC, Euratom) No 1553/98.

A transitional period for gradual alignment of the level of excise duty on cigarettes stipulated under the new Directive on the structure and rates of excise duty applied to manufactures tobacco within the maximum deadline applying to current Member States (until 31.12. 2007).

Chapter 13Social policy and employmentDerogation/Transitional PeriodDerogations from Sixth Council Directive 77/388/EEC concerning the application of a reduced A three year transitional period in the area of health and safety at work with biological, physical and chemical agents (Directives 86/188/EEC, 91/322/EEC, 98/24/EC, 2000/93/EC and 2000/54/EC) On the understanding that all the undertakings that would not fully comply with theacquis by that date will abandon manufacturing operations, and under the following conditions:-Slovenia will adhere to its transposition and implementation timetable;-all Directives in respect of which the transitional periods are requested were transposed by 31 December 2001;-between now and the end of the transitional period, Slovenia will continue to provide regularly

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updated information on the timetable and the measures taken to ensure compliance with each Directive.

Chapter 14EnergyDerogation/Transitional PeriodA three year transitional period in the area of health and safety at work with biological, physical and chemical agents (Directives 86/188/EEC, 91/322/EEC, 98/24/EC, 2000/93/EC and 2000/54/EC) On the understanding that all the undertakings that would not fully comply with the acquis by that date will abandon manufacturing operations, and under the following conditions:-Slovenia will adhere to its transposition and implementation timetable;- all Directives in respect of which the transitional periods are requested were transposed by 31 December 2001;- between now and the end of the transitional period, Slovenia will continue to provide regularly updated information on the timetable and the measures taken to ensure compliance with each Directive.

A transitional period in the area of oil and security of supply until 31 December 2005 concerning the 90-day stocks of oil (Council Directive 68/414/EEC and 98/93/EC). Slovenia will gradually increase its stocks of oil from 66-day stocks as of the day of accession, to 75-day stocks as of 31 December 2004 and to 90-day stocks as of 31 December 2005.

Chapter 22EnvironmentDerogation/Transitional PeriodA five-year transitional period in area of Waste management - Packaging and packaging waste until 31 December 2007 and the overall recovery rate until 31 December 2007 in accordance with the progression of recovery and recycling targets.

A transitional measure in the area Urban waste waters with the following intermediate targets:- as from 31 December 2008, collecting systems and treatment has to be provided in sensitive areas in line with Articles 3 and 5 of Directive 91/271/EEC;- as from 31 December 2010, collecting systems and treatment in line with Articles 3 and 5 of Directive 91/271/EEC has to be provided in agglomerations with a popular equivalent of more

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than 15 000;- as from 31 December 2015, collecting systems and treatment in line with Articles 3 and 5 of Directive 91/271/EEC has to be provided in agglomerations with a population equivalent between 2 000 and 15 000.

A transitional period in the area of Integral pollution prevention and control - IPPC in the part relating to existing installations until 30 October 2011 to the installations listed by Slovenia under the following conditions:- fully co-ordinated permits will be issued for these installations before 30 October 2007, containing individually binding timetables for the achievement of full compliance;- the general principles governing the basic obligations of the operators as set out in Article 3 of Directive 96/61/EC will be complied with by October 2007, due account will be given to the environmentally sound treatment and disposal of waste in these installations. (a four-year transitional period as of the date which applies for the existing installations in the EU Member States - 30 September 2007).

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Annex no. 8 – Derogation/Transitional Period: Republic of Croatia

Chapter 1Free movement of goodsDerogation/Transitional PeriodMarket authorisations for medicinal products granted before accession have to be upgraded to comply with the level of quality, efficacy and safety in accordance with the Directive. Croatia will have to complete this upgrading of marketing authorisations and documentation for medicinal productsat the latest 4 years after the date of accession.AboutThe principle of the free movement of goods implies that products must be traded freely from one part of the Union to another. In a number of sectors this general principle is complemented by a harmonised regulatory framework, following the “old approach” (imposing precise product specifications) or the “new approach” (imposing general product requirements). The harmonised European product legislation, which needs to be transposed, represents the largest part of the acquis under this chapter. In addition, sufficient administrative capacity is essential to notify restrictions on trade and to apply horizontal and procedural measures in areas such as standardisation, conformity assessment, accreditation, metrology and market surveillance.

Chapter 2Freedom of movement for workersDerogation/Transitional Period- a two year period during which national measures will be applied by current Member States to Croatia. Depending on how liberal these national measures are, they may result in full labour market access;- after this period, reviews will be held: one automatic review before the end of the second year after accession and a further review at the request of Croatia. The procedure includes a report by the Commission, but leaves the decision on whether to apply the acquis up to the current Member States;- the transitional arrangement should in principle come to an end after five years, but may be prolonged for a further two years in those current Member States where there would be serious disturbances of the labor market or a threat of such disruption;- safeguards may be applied by Member States up to the end of the seventh year.- Furthermore a standstill clause will apply, whereby current Member State labor markets cannot be more restricted than that prevailing at the time of the signature of the Accession Treaty. Current

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Member States must give preference to Croatian nationals over non-EU labor.- Austria and Germany have the right to apply flanking national measures to address serious disturbances or the threat thereof, in specific sensitive service sectors on their labor markets, which could arise in certain regions from transnational provision of services.- Under the transitional arrangements the rights of Croatian nationals who are already legally resident and employed in a current Member State are protected. The rights of family members are also taken into account consistent with the practice in the case of previous accessions. - On the basis of reciprocity, Croatia may apply restrictions equivalent to the national measures applied by the respective Member State.AboutThe acquis under this chapter provides that EU citizens of one Member State have the right to work in another Member State. EU migrant workers must be treated in the same way as national workers in relation to working conditions, social and tax advantages. This acquis also includes a mechanism to coordinate national social security provisions for insured persons and their family members moving to another Member State.

Chapter 4Free Movement of CapitalDerogation/Transitional PeriodCroatia may maintain certain restrictions on the acquisition of agricultural land by EU/EEA nationals for 7 years from the date of accession, with the possibility of a 3-year extension. This extension may be limited to selected geographical areas particularly affected.- Restrictions on the acquisition of real estate, with 3rd countries, which existed in Croatia on 31 December 2002, may be maintained.AboutMember States must remove, with some exceptions, all restrictions on movement of capital both within the EU and between Member States and third countries. The acquis also includes rules concerning cross-border payments and the execution of transfer orders concerning securities. The directive on the fight against money laundering and terrorist financing requires banks and other economic operators, particularly when dealing in high-value items and with large cash transactions, to identify customers and report certain transactions. A key requirement to combat financial crime is the creation of effective administrative and enforcement capacity, including co-operation between supervisory, law enforcement and prosecutorial authorities. Chapter 7Intellectual property lawDerogation/Transitional Period

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- Community trademarks and designs registered in Member States before the date of accession shall be extended to the territory of Croatia on the day of accession, in order to ensure equal effect throughout the Community.- Supplementary protection certificates (SPC) for medicinal and for plant protection products will be applicable to any medicinal or plant protection product which, on the date of Croatia’s accession, is protected by a valid basic patent and for which the first marketing authorization was obtained after 1 January 2003 provided that an application for a certificate will have to be submitted within six months from the date of Croatia’s accession.- Croatia has agreed to set up a specific mechanism to protect the rights granted by a patent or an SPC for a pharmaceutical product filed in a Member State at the time when such protection could not be obtained in Croatia for that product.- According to this mechanism, the holder, or his beneficiary, may rely on the rights granted by that patent or SPC in order to prevent the import and marketing of that product in the Member State or States where the product in question enjoys patent or SPC protection, even if this product was put on the market in Croatia for the first time by him or with his consent (in practice the mechanism protects EU patent-holders from so-called “parallel import” of medicines from Croatia if prices of this medicine are lower in Croatia than in Member States). Such a specific mechanism was also granted during the 5th enlargement. AboutThe acquis on intellectual property rights specifies harmonized rules for the legal protection of copyright and related rights. Specific provisions apply to the protection of databases, computer programs, semiconductor topographies, satellite broadcasting and cable retransmission. In the field of industrial property rights, the acquis sets out harmonized rules for the legal protection of trademarks and designs. Other specific provisions apply for biotechnological inventions, pharmaceuticals and plant protection products. The acquis also establishes a Community trademark and Community design. Finally, the acquis contains harmonized rules for the enforcement of both copyright and related rights as well as industrial property rights. Adequate implementing mechanisms are required, in particular effective enforcement capacity. - Restrictions on the acquisition of real estate, with 3rd countries, which existed in Croatia on 31 December 2002, may be maintained.

Chapter 8Competition policyDerogation/Transitional Period- Regarding the shipbuilding sector, the restructuring and privatization of the shipyards in

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difficulties shall be carried out in compliance with the conditions agreed with the EU. Upon accession, the Commission will be empowered to order Croatia to recover the restructuring aid granted since 2006 to the yards in difficulty, which have not respected these conditions. In addition, Croatia will have to report regularly.- On steel, upon accession, the Commission will be empowered to order Croatia to recover the state aid granted to CMC Sisak if the company has not reimbursed them by the date of accession.AboutThe competition acquis covers both anti-trust and state aid control policies. It includes rules and procedures:-to fight anti-competitive behavior by companies (restrictive agreements between undertakings and abuse of dominant position);-to scrutinize mergers between undertakings; - to prevent governments from granting state aid which distorts competition in the internal market;Generally, the competition rules are directly applicable in the whole Union, and Member States must co-operate fully with the Commission in enforcing them.

Chapter 11Agriculture and rural developmentDerogation/Transitional Period1)Horizontal issuesDirect payments Direct payments in Croatia will be phased in over a period of ten years starting at 25% of the EU direct payments in the first year of accession, 30% in the second, 35% in the third and 40% in fifth year of accession and thereafter in 10 % increments (see chapter 33).The total national envelop for direct payments per year for Croatia is EUR 373 million. In addition, and during a period of 10 years, Croatia will receive EUR 9.6 million annually of direct payments for de-mined land on the condition that this land is used for agricultural activities.Complementary national direct payments Croatia can complement direct payments up to 100 % of the level of direct payments in the EU which have to be financed from the national budget. However, during 2014, 2015 and 2016, Croatia can use up to 20% of its annual rural development funds to finance complementary national direct payments. The contribution from rural development funds is limited to the difference between: a) the level of direct payments applicable in Croatia for the year concerned, and b) 45% of the level of direct payments applicable in the EU.After accession, Croatia will have the possibility to grant coupled direct payments for suckler cows

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(max. 105,270 head) and sheep and goats (max. 542,651 head).The minimum level for receiving direct payments by beneficiaries is EUR 100.

2) Common Market OrganizationSugar:The national sugar production quota for Croatia is 192,877 tons. During three years as of accession, Croatia has been granted an annual import quota of 40,000 tons of raw cane sugar at an import duty of EUR 98/ton.Geographical indications and traditional terms:A number of denominations of wine and spirits will be protected at EU level as geographical indications or traditional terms.Animal products:The milk quota for Croatia is 765,000 tons.

3) Rural developmentIn 2013, Croatia will benefit from a full year allocation under the Instrument for pre-accession for rural development (IPARD).In the next programming period for rural development 2014 -2020, Croatia can:- grant a special support for semi-subsistence agricultural holdings as well as a special support to facilitate the setting up of producer groups.- apply a minimum contribution from rural development funds to LEADER which is half of the contribution applicable to the other Member States (if such a requirement is set in the rural development program 2014-2020).- support up to 75% of the costs of investments by agricultural holdings which are intended to improve the protection of waters against pollution caused by nitrates from agricultural sources (Nitrate Directive) during a period of four years as of accession.

4) Quality policyCroatia can continue, for 12 months after accession, the national protection of geographical indications and designations of origin for agricultural products existing at national level on the day of accession.-to scrutinize mergers between undertakings; - to prevent governments from granting state aid which distorts competition in the internal market;Generally, the competition rules are directly applicable in the whole Union, and Member States must co-operate fully with the Commission in enforcing them.

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AboutThe agriculture chapter covers a large number of binding rules, many of which are directly applicable. The proper application of these rules and their effective enforcement and control by an efficient public administration are essential for the functioning of the common agricultural policy (CAP). Running the CAP requires the setting up of management and quality systems such as a paying agency and the integrated administration and control system (IACS), and the capacity to implement rural development measures. Member States must be able to apply the EU legislation on direct farm support schemes and to implement the common market organizations for various agricultural products.

Chapter 12Food safety, veterinary and phytosanitary policyDerogation/Transitional Period- Laying hens:Laying production cycles that started before the day of accession in cages which are not compliant with EU standards can be continued in these cages for a period of maximum 12 months after accession. Eggs from such cages have to be identified with a special mark and can only be placed on the Croatian market.-Establishments:Croatia has been granted a transitional period until 31 December 2015 for establishments in the meat, milk, fish and animal by-products sectors in order to meet structural EU standards (EU standards on hygiene requirements have to be fully respected). Products from such noncompliant establishments have to be identified with a special health mark and can only be placed on Croatian market and on markets of third countries. - Quality of seeds and propagating material:Croatia has been granted a transitional period until 31 December 2014 with regard to the marketing of certain varieties of beets, cereals, oil and fiber plants, fodder plants, vegetables and seed potatoes which have not passed yet the Distinctness, Uniformity and Stability (DUS) examinations. Such plants and seeds may not be marketed in the territory of other Member States.-Special regime for the Neum corridor:Products of animal origin coming from Croatia and transiting through the territory of Bosnia and Herzegovina at Neum (‘Neum corridor’) before re-entering Croatia via Klek or Zaton Doli, may be exempted from the required veterinary checks. Croatia has to have fully equipped and staffed points of entry to the north and south of the corridor in place as well as effective technical surveillance systems to ensure efficient controls. Consignments must not be transported in open

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vehicles via the Neum corridor and the vehicles have to be properly sealed. The transit of live animals with the exception of pet animals through the ‘Neum corridor’ is prohibited.AboutThis chapter covers detailed rules in the area of food safety. The general foodstuffs policy sets hygiene rules for foodstuff production. Furthermore, the acquis provides detailed rules in the veterinary field, which are essential for safeguarding animal health, animal welfare and safety of food of animal origin in the internal market. In the phytosanitary field, EU rules cover issues such as quality of seed, plant protection material, harmful organisms and animal nutrition.

Chapter 13Fisheries policyDerogation/Transitional Period- Croatian fishermen may continue to use bottom trawls in waters on depths less than 50 meters at the minimum distance of 1.5 nautical miles from the coast until 30 June 2014. The vessels must be registered and operate in the Western Istria region determined from the point with geographic coordinates φ=44.52135 and λ=14.29244 with a line due north and a line due west. During the same period and for all vessels of less than 15 meters length overall, bottom trawls may be used in waters over 50 meters deep at a minimum distance of 1 nautical mile from the coast on condition that all other spatial and temporal restrictions Croatia currently applies are maintained.- The specific category of non-commercial fisheries (subsistence fishermen), i.e. the small scale artisanal fishing for personal use needs to be phased out by 31 December 2014.- For investments of all sizes of companies supported from the European Fisheries Funds on the islands Mljet, Vis, Dugi otok and Lastov, a higher co-finance rate (of max. 85%) can be applied.- Based on existing bilateral agreement between Slovenia and Croatia, a limited mutual access to the coastal waters of the other country has been agreed between Croatia and Slovenia. The mutual access rights will apply as of the full implementation of the arbitration award resulting from the Arbitration Agreement between Slovenia and Croatia, signed in Stockholm on 4 November 2009.AboutThe acquis on fisheries consists of regulations, which do not require transposition into national legislation. However, it requires the introduction of measures to prepare the administration and the operators for participation in the Common Fisheries Policy (CFP). The scope, the objectives and the principles of the CFP are laid down in a framework regulation (Council Regulation (EC) N° 2371/2002). The CFP provides rules for the conservation of living aquatic resources, the limitation of the environmental impact of fisheries, conditions of access to waters and resources, structural policy and the management of the fleet capacity, control and enforcement, aquaculture,

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common organization of the market and international relations. The CFP is based on sound scientific advice and provides a framework for data collection.

Chapter 14Transport PolicyDerogation/Transitional Period- For road transport, for the first 2 years following the accession of Croatia, transport companies established in Croatia will be excluded from operating transport services exclusively within the borders of the other Member States (cabotage), and operators established in the other Member States are excluded from providing such services in Croatia. This transitional period can be extended by a maximum of 2 additional years.- In the area of maritime transport and with regard to the freedom to provide services within Member States (maritime cabotage), public service contracts concluded before the date of accession may continue to apply until 31 December 2016.- Furthermore, until the end of 2014 cruise services carried out between Croatian ports by ships smaller than 650 gross tons shall be reserved to ships registered in, or flying the flag of Croatia, which are operated by Croatian shipping companies. In turn, until the same date, the Commission may, upon a substantiated request by a Member State, decide that ships benefiting from this derogation shall not carry out cruise services between ports of certain areas of a Member State other than Croatia in case of serious disturbances of the internal transport market caused by such operations in the areas concerned.AboutEU transport legislation aims at improving the functioning of the internal market by promoting safe, efficient and environmentally sound and user-friendly transport services. The transport acquis covers the sectors of road transport, railways, inland waterways, combined transport, aviation, and maritime transport. It relates to technical and safety standards, security, social standards, state aid control and market liberalization in the context of the internal transport market.

Chapter 16TaxationDerogation/Transitional PeriodCroatia has committed itself to accept and comply with the principles of the Code of Conduct for Business Taxation.Transitional arrangements and two derogations are granted to Croatia in the field of indirect taxation (VAT and excise duties).

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-VAT Croatia is allowed to apply under certain circumstances a lower VAT exemption and registration threshold for taxpayers of the equivalent of € 35,000 in national currency without any time limitation and to continue exempting international transport of passengers from VAT, with the right to input tax deduction. Croatia is granted a transitional period until 31 December 2014 to exempt from VAT the supply of building land, with or without buildings built on it. In consequence, the right of deduction of input tax on goods and services used as inputs in the course of construction of buildings on the building land, will remain unchanged during the transitional period and the current system of full right of input tax deduction applied in Croatia for all the supplies related to the construction of buildings on building land is maintained.-Excise DutiesCroatia has been granted a transitional arrangement to apply, until 31 December 2017, lower excise duties on cigarettes than the minimum level set in the acquis.AboutThe acquis on taxation covers extensively the area of indirect taxation, namely value-added tax (VAT) and excise duties. It lays down the scope, definitions and principles of VAT.Excise duties on tobacco products, alcoholic beverages and energy products are also subject to EU legislation. As concerns direct taxation, the acquis covers some aspects of taxing income from savings of individuals and of corporate taxes. Furthermore, Member States are committed to complying with the principles of the Code of Conduct for Business Taxation, aimed at the elimination of harmful tax measures. Administrative co-operation and mutual assistance between Member States is aimed at ensuring a smooth functioning of the internal market as concerns taxation and provides tools to prevent intra-Community tax evasion and tax avoidance. Member States must ensure that the necessary implementing and enforcement capacities, including links to the relevant EU computerized taxation systems, are in place.

Chapter 22Regional policy and coordination of structural instrumentsDerogation/Transitional PeriodIn order to ensure continuation of the ongoing multiannual operational programs under pre-accession assistance (IPA component III and IV) after accession these programs will be considered as programs adopted under Structural Fund/Cohesion Fund regulations. Negotiations focused on the legislative and institutional framework, administrative capacity, programming, monitoring and evaluation, financial management and control, eligibility and financial issues.Croatia has been granted an extension of the eligibility end date and the deadline for automatic de-commitment to the 31 December of the third year following the year of the annual budget

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commitment under its operational programs adopted under the current Structural Funds Regulation. In line with this, other relevant provisions of the acquis (e.g. on closure of the operational program, submission of reports) and the respective reference dates have been adapted accordingly.-Institutional frameworkCroatia has formally designed institutional structures for the implementation of cohesion policy as established and confirmed by Government Decision on the Strategic Documents and Institutional Framework for the Utilization of the Structural Instruments in October 2010.Croatia’s institutional framework for the implementation of EU cohesion policy builds directly on the existing implementation structures for relevant IPA components. Croatia has adopted Organizational Development Strategies for horizontal bodies and one per each of the operational programs. In view of a smooth transition from IPA to Cohesion Policy, the EU will closely monitor Croatia’s full and timely implementation of the government decisions related to building up and strengthening administrative capacity and Croatia’s progress in bringing the capacity of all the managing authorities, intermediate bodies and other relevant bodies to the required level in good time before accession.-EligibilityAll of Croatia’s 3 level 2 regions shall be eligible for assistance under the Convergence objective. From the date of accession, Croatia will also be eligible for Cohesion Fund assistance.From the date of accession, all level 3 areas along Croatia’s land borders and all level 3 maritime border areas shall be eligible areas for cross-border cooperation under the European territorial cooperation objective. All of Croatia’s statistical regions at level 2 will be included in a joint or in separate groupings of regions for the purpose of transnational cooperation and the whole of Croatia’s territory shall be eligible for interregional cooperation.-Financial issuesBefore any payment by the European Commission (for pre-financing or interim payments) is made, Croatia submits to the Commission a description of the management and control systems. The description of the implementation systems shall be accompanied by a report setting out the results of an assessment of the systems set up and giving an opinion on their compliance with relevant provisions of the acquis. The acceptance by the Commission of this report is a pre-requisite for the pre-financing amount.AboutThe acquis under this chapter consists of framework and implementing regulations, which do not require transposition into national legislation. They define the rules for drawing up, approving and implementing Structural Funds and Cohesion Fund programs reflecting each country’s territorial

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organization. These programs are negotiated and agreed with the Commission, but implementation is the responsibility of the Member States. Member States must respect EU legislation in general, for example in the areas of public procurement, competition and environment, when selecting and implementing projects. Member States must have an institutional framework in place and adequate administrative capacity to ensure programming, implementation, monitoring and evaluation in a sound and cost-effective manner from the point of view of management and financial control.

Chapter 27Environment Derogation/Transitional Period- Horizontal legislation / climate change:- Croatia will join the EU Emission Trading System (EU ETS) not before 1 January 2013,when the third trading period of the EU ETS starts.- Croatia will join the EU ETS for aviation activities as of 1 January 2014.- Linked to the above, Croatia will join the standardized and secured system of registries foreseen under the EU ETS on these dates.- Croatia will have a percentage of 26% added to the annex of the EU ETS Directive, being the increase in the percentage of allowances to be auctioned for the purpose of Community solidarity and growth in order to reduce emissions and adapt to the effect of climate change. These calculations are based on the provision that the community-wide quantity of allowances as a result of the accession of Croatia will only be increased by the quantity of allowances that Croatia shall auction.- Air Quality:- Croatia needs to set an exposure reduction target and an average exposure indicator for the air pollutant PM 2,5. The reference year is the second year after the end of the year of Croatia’s accession. The average exposure indicator for that reference year shall be the average concentration of the year of accession and the first and the second year after accession. The exposure reduction target shall then be calculated in relation to the average exposure indicator in that reference year.- Waste Management:- One transitional period has been granted until 1 January 2019 for Croatia to bring its landfills for waste in compliance with the acquis requirements.- A second derogation was granted until 1 January 2021, with intermediate deadlines of 1 January 2014 and 2017 in order to reduce the amount of biodegradable waste going into landfills.- Water Quality:- Croatia has a transitional period until 1 January 2024, with intermediate deadlines with intermediate

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targets of 1 January 2019 and 1 January 2021, to bring its treatment systems in line with the acquis requirements as regards urban waste water.- A second derogation until 1 January 2019 was granted during which Croatia will have to reach certain parameters for drinking water.- Industrial Pollution and Risk Management:- For integrated pollution prevention and control (IPPC), where installations have to reduce their emissions of pollutants: the latest date to bring about compliance, with intermediate deadlines, is 1 January 2018. A total of 67 installations is concerned.- Eleven large combustion plants have been granted a derogation to reduce their emissions until 1 January 2018.- Emissions of volatile organic compounds need to be reduced for a specified list of installations until 1 January 2016, with several intermediate deadlines. Also, the obligation for the operator to demonstrate to that the best available techniques are being used shall for coating processes in shipbuilding with regard to certain installations in Croatia apply only as from 1 January 2016.The lists of installations for which these derogations hold are put into the treaty.- Chemicals:- For the regulation on registration, evaluation, authorization and restriction of chemicals (REACH), Croatia will have a maximum of six months upon accession to adapt to the registration obligation for non-phase-in substances and to the deadlines for pre-registration of phase-in substances, 12 months upon accession for the registration of pre-registered phase-in substances and at least 6 months upon accession for sending applications for authorizations of substances on the authorization list. AboutEU environment and climate change policies aim to promote sustainable development, shift to a low carbon and resource efficient economy and protection of the environment for present and future generations. Key principles are preventive action, the polluter pays principle, fighting environmental damage at source, shared responsibility and the integration of environmental and climate considerations into other EU policies. The acquis comprises over 200 legal acts covering horizontal legislation (including climate change), water and air quality, waste management, nature protection, industrial pollution control and risk management, chemicals, noise and civil protection. Compliance with the acquis requires significant investment. A strong and well-equipped administration at national and local level is imperative for the application and enforcement of the acquis.

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Chapter 29Customs unionDerogation/Transitional Period- provisions ensuring continued validity after accession of proof of origin issued before accession in the framework of preferential agreements concluded by Croatia with third countries. Such a measure is necessary in order to respect the legitimate expectations of operators;- provisions applicable upon discharge of certain economic regimes (customs warehousing, inward processing, outward processing, processing under customs control and temporary importation).- provisions concerning remission, recovery and repayment of duties. Such provisions are necessary for the proper management of the resources.AboutThe customs union acquis consists almost exclusively of legislation which is directly binding on the Member States. It includes the EU Customs Code and its implementing provisions, the combined nomenclature, common customs tariff and provisions on tariff classification, customs duty relief, duty suspensions and certain tariff quotas, and other provisions such as those on customs control of counterfeit and pirated goods, drugs precursors, export of cultural goods as well as on mutual administrative assistance in customs matters and transit. Member States must ensure that the necessary implementing and enforcement capacities, including links to the relevant EU computerized customs systems, are in place. The customs services must also ensure adequate capacities to implement and enforce special rules laid down in related areas of the acquis such as external trade.

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Annex no. 9 – Government of Romania. Implementation Plan – Environment Chapter

Competent Authorities

Ministry of Environment and Water Management (MEWM) is responsible for:• Establishing the water quality standards and objectives• Regulating the waste water discharges from human agglomerations and agro-food industries,

in accordance with NTPA 001/2002 and NTPA 002/2002 Norms• Monitoring the quality of surface water and of natural receivers in which urban or industrial

waste water is discharged• Controlling the compliance with the legislation in force• Elaboration of an Action Plan for the rehabilitation, modernization and construction of

urban waste water collection and treatment system

Ministry of Administration and Interior (MAI) is responsible for the elaboration of an Action Plan for rehabilitation, modernization and construction of urban waste ater collection and treatment system within agglomerations of more than 2,000 p.e.

Ministry of Transport, Constructions and Tourism (MTCT) is responsible for the promotion of standards and technical regulations concerning the construction and operation of the collection systems and urban wastewater treatment plants.

National Regulatory Authority for Public Services of Communal Management (ANSRC) is responsible for regulating and licensing the public service operators Local Public Administration (LPA) is responsible for carrying out the sewage systems and urban wastewater treatment.

National Environmental Guard (NEG) is responsible for inspection and enforcement of the environmental legislation. Stakeholders and their responsibilities related to the implementation of Directive 91/271/EEC are shown in Table

Stakeholder Responsibilities

MEWM (Ministry of Environment and Water Management)

Establishment of standards and water quality objectivesElaboration of norms for discharging conditions

Establishment of monitoring system of the waste water discharges

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MAI (Ministry of Administration and

Interior)

Elaboration of the Action Plan for rehabilitation, modernization and construction of collection systems within agglomerations of more than

2,000 p.e.

Ministry of Transport, Constructions and

Tourism

Promotion of the standards and technical regulations concerning construction and exploitation of the collection systems and urban

waste water treatment plants

National Environmental Guard

(NEG)Inspection and control of waste water discharges

National Administration

“Romanian Waters” (NARW) and

River Basin Water Directorates (RBWD)

Licensing/permitting of waste water discharge from agglomerations or assimilated agro-food industry, in accordance

with normatives NTPA 001/2002 and NTPA 002/2002 Monitoring the quality of surface water and natural receiving waters, in which

urban and industrial waste water are discharged.

National Authority for Public Services

of Communal Management

(ANSRC)

Licensing the operators for waste water treatment public services

Local Public Administration

Development of the sewage systems and urban waste water treatment

Local Water and Sewage Companies (under municipalauthority or state

ownership)

Operation and maintenance of collecting systems and urban waste water treatment plants Self-monitoring and reporting to the

RBWD Compliance with discharging conditionsSludge management and sludge disposal

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Water management authorisationIn accordance with the provisions of Water Law no. 107/1996 (amended by Law no. 310/2004), the Ministry of Environment and Water Management is authorized to elaborate the national strategy and policy in the field of water management, to establish the regime of the water resources use, regardless the owner, to organize and develop, on hydrographical basins, the unitary, rational and complex activity for water resources management and to ensure the coordination and enforcement of the legal regulations in this field. The present legislation does not refer to sensitive areas, but the water authority may impose stricter limits, if the quality of the receiving waters justifies it. For the rational management of water resources and for water resources protection against exhaustion and pollution, in connection with the water management and sustainable development principles, Water Law no. 107/1996 (amended by Law no. 310/2004) introduces the obligation of water user to request and obtain a “water management permit”, starting with the designing stage. The permit regulates the regime of the works carried out on water or related to water and the social-economical activities, with potential negative effects on the environment. The putting into operation or the operation of these works is made only on the basis of a “water management licence”.

The legal framework for authorisation in water management and water protection is represented by the Water Law no.107/1996 (amended by Law no. 310/2004) and the Ministerial Order no.1141/2002. According to these norms, the National Administration” Romanian Waters” (NARW) and the River Basin Water Directorates (RBWD) are the competent authorities for issuing water management permits and licenses. The water management permits and licenses are granted by NARW through its specialized departments organized for this purpose both at central and local level, on each River Basin Water Directorate (RBWD). The NARW has well trained personnel for this activity.

For waste water discharges from agglomerations of more than 2,000 p.e. and for industrial waste water discharges from industrial sectors into natural receivers (as stipulated within table 4, Annex 1 - Technical Normative NTPA 011/2002) of the GD no 188/2002,) permits/licenses should contain compliance conditions with the requirement of the Annex 1 and Annex 3 of the GD no 188/2002, namely Technical Normative NTPA-011 and NTPA-001/2002.

Waste water discharges from industrial sources are authorised in Romania since 1974. Governmental Decision no.188/2002 - Annex to Technical Norms, Article 9 –Authorization - transposes the provisions of Article 11 of the Directive regarding the discharge of industrial

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wastewater into collecting systems and urban wastewater treatment plants which are subject to water permit/license. In accordance with the regulations in-force, wastewater discharge into the aquatic ecosystems should not lead to the deterioration of the natural receivers. Before being discharged into natural receivers, the urban waste water shall be subject to appropriate treatment - by any process and/or disposal system, which allows the receiving waters to meet the conditions provided by GD no. 188/2002 and by water management permits and licenses in force.

Sludge managementThe water management permits and licences also refer to sludge landfilling or use that should reduce to minimum the negative impact to environment. In addition, sludge discharging into surface waters is banned, as stipulated by Water Law no. 107/1996, amended by Law no. 310/2004.

Currently, in Romania, the sludge from wastewater treatment plant is landfilled in urban waste landfills. Directive 86/278/EEC on the protection of the environment, and in particular of the soil, when sewage sludge is used in agriculture was transposed in Romanian legislation by Ministerial Order no. 49/2004 for the approval of Technical Norms for the protection of environment and, especially, of soils when sewage sludge is used in agriculture.

Public services operators (for urban waste water collecting and treatment) monitor the discharged effluents (self-monitoring) and report the pollutants’ concentrations (load), the discharged waste water quantities and treatment technologies to the Local Water Companies and River Basin Water Directorates (RBWD).

Technical Compliance

Water utilitiesThe total length of the Romanian sewage network in 2002 was 16,812 km. 51.7% of the urban street total length had sewage system installed at the end of 2001. The water treatment efficiency is negatively influenced by the equipment inefficiency and the sewage network losses.

The wastewater treatment plants flow rate in 2001 was 5,151.7 thousand m3/day, (out of which 5,067.78thousandm3/daywithinmunicipalitiesandtowns) with 73.9 thousand m3/day more than in 2000. In Romania, there are 2,609 agglomerations of more than 2,000 population equivalent.

Out of the 2,609 agglomerations, identified according to Annex 5 of the Directive, 320

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agglomerations have sewage systems and 340 agglomerations have wastewater treatment plants. The distribution of the agglomerations on each type of sewage systems and each type of wastewater treatment plant, are presented in tables 7 and 8. Out of these 660, 2 sewage systems. are complying with the requirements of Directive 91/271/EEC and 11 wastewater treatment plants are in compliance only at secondary treatment level.

Wastewater management from agro-food industry31 agro-food units that discharge directly into surface water had been identified with an equivalent organic loading of more than 4,000 population equivalent. Out of these, 5 units do not have wastewater treatment plants and discharge directly into surface water and 26 agro-food units have mechanical or mechanical – biological treatment plants. Out of the total 31 agro-food units, identified according to Article 13 of the Directive, only 3 units comply with the provisions of Directive 91/271/EEC.

The agro-food industry units, which directly discharge into the receiving water and currently do not comply with the provisions of the Directive are authorized from the water management point of view. The water management license, which is a technical document, legally binding, contains a compliance programme referring to the endowment, extension and upgrading works, which also includes the deadlines by which the units must be in compliance. These compliance deadlines do not surpass the date of accession. In case of non-compliance, the water management authority applies penalties and if the problem persist, the water management license of these units will be withdrawn by the date of accession and their activity will be ceased or these units will be shut down.

Monitoring system for urban wastewaterIn Romania, the Water Integrated Monitoring System has an informational structure and a hierarchical type. The local water management authorities (Water Management Systems) are responsible for obtaining, collecting and transmitting the information to the water basin river authority (Water Directorates) and further up to the national water management authority (National Administration “Romanian Waters”) and to the central water management authority (Ministry of Environment and Water Management). The NARW is in charge with the monitoring of pollution sources, which directly discharge wastewater into natural receivers. 100 automatic stations are available for sampling and analysis. These data are sent to the basin centre to be processed together with other data.The local water management authorities monitor the urban wastewater and industrial water

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discharged into urban sewage systems. The local water management authorities have to annually report the data (regarding the waste water collection and treatment) to the NARW (according to GD no. 188/2002, Annex to the Technical Norms, Article 12). Information is validated and stored into a database and written reports.

In Romania, the National Administration “Romanian Waters” is the responsible authority of the Water Integrated Monitoring System and of the specific database. Presently, the informational system of NARW collects, processes, send, stock and disseminates data. The national network for data transmission, in electronic format, in the field of water management is divided on 4 levels (local, county, basin and national level). The data transmission is carried out mainly by radio transmission and also by Internet – Intranet system between the data provider and the upper decisional level.

For the improvement of the network system capacity, starting October 2004, a project will be developed for 12 months within the PHARE 2002 Programme RO 586.04.12.04 – “Establishing an informationalsystemandadatabaseinthefieldof watermanagement,inaccordancewiththerequirementsof Water Framework Directive”. The objectives of this project are: the improvement of the data collection quality and efficiency at different information levels, establishing the necessary works for infrastructure modernization on upper, lower and horizontal level, between the organisational structures of NARW. After completing this project, the conditions for EU reporting, in accordance with the provisions of Article 15 of the Directive, will be ensured. After accession, the central water management authority shall report the data to the European Commission. In order to achieve this, the NARW will update its national monitoring system in 2005. A methodology for collecting, evaluation and reporting of the monitored data will be drawn up starting with 2005, within the PHARE project RO 2001/IB/ST-0107.04 – “Compliance of Romanian statistics with European statistical system”.

Plan for implementation of the requirements1. Decision to designate the whole territory of Romania as a sensitive areaa. Summary of objectives

In accordance with Article 5(8), a Member State does not have to identify the sensitive areas if more severe requirements regarding treatment are applied (laid down in paragraphs 2, 3, 4 of Article 5) on its whole territory.The decision to declare the whole territory of Romania as sensitive area, as well as the results

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of the negotiations will be introduced in a GD, which will amend the GD no.188/2002. This amendment will be made by March 2005.

Urban waste water from the sewage networks must be subject to a more stringent treatment, if they are discharged into sensitive areas and if they come from agglomerations of more than 10,000 p.e., in accordance with Article 5 (2). Discharges from urban waste water treatment plants described in paragraph 2 must satisfy the relevant requirements of Annex I B of the Directive. Article 5 (4) lays down that more stringent treatment requirements are not necessary in sensitive areas, if a minimum percent for the reduction of total pollutant load of 75% for total nitrogen and total phosphor, for each of the two parameters, could be reached. Responsibility: MEWMDeadline: until 03/2005.a Identification of the implementation steps• Identification of relevant necessary data (agglomerations of more than 10,000 p.e., status of

endowing of these agglomerations with collecting systems, conditions for collecting systems and waste water treatment plants to achieve tertiary treatment)

• The agglomerations were identified and classified depending on the population equivalent263 agglomerations of more than 10,000 p.e. needing tertiary treatment were identified. Responsibility: MEWMDeadline: 12/2004 – accomplished

2. To ensure that all agglomerations will be endowed with collecting systems of urban waste water, namely the agglomerations with a population equivalent of more than 10,000 by 31 December 2000 at the latest, and for the agglomerations with a population equivalent of between 2,000 and 10,000 by 31 December 2005 at the latest.

a Summary of objectivesArticle 3 requires Member States to ensure that all agglomerations will be provided with collecting systems of urban waste water, namely the agglomerations of more than 10,000 p.e., by 31 December 2000 at the latest and the agglomerations of between 2,000 and 10,000 p.e., by 31 December 2005 at the latest.

For urban waste water discharging into receiving waters which are identified as sensitive areas, Article 3 further requires to ensure that agglomerations with a population equivalent of more than 10,000 will be provided with collecting systems by 31 December 1998, at the latest.

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The Directive makes possible the use of individual systems or other appropriate systems that achieve the same level of environmental protection, where the establishment of a collecting system is not justified either because would produce no environmental benefit or would involve excessive costs. Collecting systems shall satisfy the requirements of Annex I (A).

b) Identification of the implementation steps• Identification of the relevant necessary data (agglomerations of more than 2,000 p.e., status of

endowing of these agglomerations with collecting systems, condition of collecting systems)• Identification and classification of the agglomerations depending on the population

equivalent. Out of the total of 2609 agglomerations identified according to the Directive, 320 agglomerations have sewage systems (out of which 211 with divided system, 114 with unitary system, 88 with mixed system, and 10 having a combination of these systems), and 340 agglomerations have waste water treatment plants (out of which 112 mechanical, 212 mechanical – biological, 10 mechanic –biological – chemical, 6 mechanical – chemical). Out of these, 2 sewage systems comply with the Directive requirements and 11 waste water treatment plants comply only at secondary treatment level.

A list of agglomerations of more than 2,000 p.e on each county, containing data about the level of endowment with urban waste water treatment facilities and sewage networks, indicating costs and deadlines for compliance with the provisions of the Directive is provided in the Annex 3 to the Implementation Plan. This situation was finalized on the basis of the information provided by the county public administration authorities. For the assessment of the current situation and for planning the necessary investments in the field of urban wastewater collection and treatment, the local authorities, together with the water management authorities, drew up local action plans.

The necessary investments for the sewage systems and treatment plants were selected on the basis of cost/benefit criteria and referred to the agglomerations of more than 2,000 p.e., in accordance with the provisions of the Directive. In this respect, an agglomeration to be endowed with a common treatment system was constituted by connecting either large and medium towns with communes in their proximity or several communes.

The geographical and administrative conditions, as well as the population dispersion in some communes, also lead to the establishment of the agglomeration only by conjunction of several villages, fact that justifies the number of agglomerations: more than 2,000. Responsibility: MEWM, MAI Deadline: 06/2002 – accomplished

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• Collection and evaluation of relevant data Responsibility: MEWM• Deadline: 05/2003 - accomplished• Development of the Action programme for the rehabilitation, upgrading and construction

of collecting systems in agglomerations of more than 2,000 p.e., and of the financial strategy for its achievement

• Responsibility: MEWM, MAI, MPF• Deadline: 06/2004 – accomplished• Implementation of the programme for the rehabilitation, upgrading and construction of

collecting systems in agglomerations of more than 2,000 p.e.• Responsibility: local authorities• Deadline: until 31 December 2018• Periodical reviews of implementation and updating of financing strategy for collecting

systems in agglomerations of more than 2,000 p.e.Responsibility: MEWM, MAI, MPFDeadline: yearly, starting with 2005

3. To ensure that urban waste water entering collecting systems of agglomerations is, before discharging, subject to tertiary treatment or an equivalent treatment, namely for the agglomerations with a population equivalent of more than 10,000 by 31 December 2000 at the latest and the agglomerations with a population equivalent between 2,000 and 10,000 by 31 December 2005 at the latest

a. Summary of objectivesb. Article 4 requires Member States to ensure that urban waste water entering collecting systems

of agglomerations is before discharge subject to the secondary treatment or an equivalent treatment, namely the agglomerations of more than 10,000 p.e. by 31 December 2000 at the latest and the agglomerations of between 2,000 and 10,000 p.e. by 31 December 2005 at the latest.

Discharges from urban wastewater treatment plants must meet the requirements provided in Table 1 of Annex I of the Directive. Discharges from urban waste water treatment plants into sensitive areas subject to eutrophication as identified in Annex IIA must in addition meet the requirements provided in Table 2 of this Annex. More stringent requirements than those shown in Table 1 and/or Table 2 shall be applied where required, in order to ensure that the receiving waters satisfy any other relevant Directives.

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c. Identification of implementation steps

• Identification of relevant necessary data (agglomerations of more than 2,000 p.e., status of endowing of these agglomerations with urban waste water treatment plants, conditions of existing urban waste water treatment plants and treatment performances)

Responsibility: MEWM, MAIDeadline: 06/2002 – accomplished• Collection and evaluation of relevant data

Responsibility: MEWMDeadline: 05/2003 – accomplished• Development of the Action programme for rehabilitation, upgrading and construction of

wastewater treatment plants in agglomerations of more than 2,000 p.e and of the financial strategy for their achievement.

Responsibility: MEWM, MAI, MPFDeadline: 06/2004 – accomplished• Implementation of the programme of rehabilitation, upgrading and construction of

wastewater treatment plants in the agglomerations of more than 2,000 p.e.

Responsibility: local authoritiesDeadline: until 31 December 2018• Periodical reviews of the implementation and updating of financing strategy for wastewaterResponsibility: MEWM, MAI, MPFDeadline: yearly, starting with 2005

4. To ensure that urban waste water entering collecting systems of agglomerations of more than 10,000 p.e. and situated in sensitive areas are, before discharge into sensitive areas, subject to more stringent treatment and the discharges satisfy the relevant emission standards for nitrogen and phosphorus

a. Summary of objectives

Member States shall ensure that all agglomeration of more than 10,000 p.e. are provided with

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collecting systems for urban waste water discharged into receiving waters regarded as sensitive areas by 31 December 1998 at the latest (Article 3). This urban wastewater shall be, before discharge into sensitive areas, subject to more stringent treatment than described in Article 4.

Discharged urban wastewater shall satisfy the relevant requirements of Annex IB and Table 2 as regards total nitrogen and phosphorus parameters. Discharges from urban waste water treatment plants of the agglomerations of more than 10,000 p.e. which are situated in the relevant catchment areas of sensitive areas and which contribute to the pollution of these areas shall also meet the above-mentioned requirements. Member States shall ensure that the identification of sensitive areas is reviewed at intervals of no more than four years. Member States shall ensure that areas identified as sensitive in the later stage following initial identification shall meet the above - mentioned requirements for seven years.

b. Identification of implementation steps• Identification and collection of necessary data (agglomerations of more than 10,000 p.e.,

status of urban waste water treatment plants in these agglomerations, treatment performances)

Responsibility: MEWMDeadline: 05/2003 – completed• Periodical reviews and adjustments of water management permits and licences for discharges

of urban waste water into sensitive areas

Responsibility: MEWMDeadline: starting with 12/2003• Drawing up of an action programme for the rehabilitation, upgrading and construction for

urban waste water treatment plants in the relevant agglomerations and of the financial strategy for the implementation strategy for the implementation of the programme.

Responsibility: MEWM, MAI, MPFDeadline: 06/ 2004 - accomplished• Implementation of the programme for the rehabilitation, upgrading and construction of

urban waste water treatment plants in relevant agglomerations

Responsibility: local authoritiesDeadline: until 31 December 2018

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5. To ensure that those urban waste water entering collecting systems of agglomerations of less than 2,000 p.e. are before discharge subject to appropriate treatment, namely by 31 December 2005 at the latest


Article 7 requires Member States to ensure that urban waste water entering collecting systems of agglomerations of less than 2,000 are before discharge subject to appropriate treatment by 31 December 2005 at the latest.Appropriate treatment means treatment of urban waste water by any process and/or disposal system that after discharge allows the receiving waters to meet the relevant quality objectives and the relevant provisions of the Directive and other Community Directives.

b. Identification of implementation steps• Identification and collection of the necessary data (agglomerations of less than 2,000 p.e.,

collection and waste water treatment situation)

Responsibility: MEWMDeadline: 05/2003 - accomplished• Drawing up an action programme for waste water treatment in the agglomerations of less

than 2,000 p.e.

Responsibility: MEWM, MAIDeadline: 06/2006• Identification of the instruments for the programme implementation support

Responsibility: MEWM, MAI, MPFDeadline: 06/2006• Implementation of the action programme for waste water treatment in the agglomerations

of less than 2,000 p.e.

Responsibility: local authoritiesDeadline: until 31 December 2018• Periodical reviews of the implementation and amendment of the programme

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Responsibility: MEWM, MAIDeadline: yearly, starting with 2005

6 To ensure that where waters within the area of jurisdiction of a Member State are affected by discharges of urban waste water from another Member State, the affected Member State notifies to the other Member State and the Commission the relevant facts.


Article 9 requires Member States to ensure that, where waters within the area of jurisdiction of a Member State are affected by discharges of urban waste water from another Member State, the affected Member State notifies to the other Member State and the Commission the relevant facts.The Member State concerned shall make, where appropriate, with the Commission, concerted effort necessary to identify the discharges in question and the measures to be taken at source to protect the waters that are affected.

b. Identification of the implementation steps• Establishing a co-operation framework for notification in case of pollution with transboundary

effect

Responsibility: MEWM, NARWDeadline: accomplished

• Identification of the discharges with transboundary adverse effect

Responsibility: MEWM, NARWDeadline: accomplished

• Establishing the measures at source for the protection of waters that are affectedResponsibility: MEWM, NARWDeadline: continuously

7. To ensure that urban waste water treatment plants are designed, constructed, operated and maintained to ensure sufficient performance under all normal local climatic conditions and that collecting systems satisfy the requirements laid down by the Directive

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Article 10 requires Member States to ensure, that the urban waste water treatment plants are designed, constructed, operated and maintained to ensure sufficient performance under all normal local climatic conditions.

b. Identification of implementation steps• Analysis of existing water management technical regulations and standards according to the

requirements of the Directive

Responsibility: MEWM, MTCT, MAIDeadline: 10/2004

• Drawing up a programme for updating the technical regulations and standards concerning the construction and operation of collecting systems and urban waste water treatment plants

Responsibility: MEWM, MTCT, MAIDeadline: 12/2004

• Updating the technical regulations and standards concerning construction and operation of collecting systems and urban waste water treatment plants

Responsibility: MTCTDeadline: continuously, starting with 2004

• Issuing of new and updated water management permits and licences for construction and operation of collecting systems and urban waste water treatment plants

Responsibility: MEWMDeadline: continuously

8. To ensure that the discharges of industrial waste water into collecting systems and urban waste water treatment plants, the discharges from urban waste water treatment plants and the disposal of sludge from urban waste water treatment plants are subject to prior regulations and/or specific authorisations by the competent authority

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Articles 11, 12 and, respectively, 14 require Member States to gradually ensure that the discharges of industrial waste water into collecting systems and urban waste water treatment plants, the discharges of waste water from urban waste water treatment plants, discharges of biodegradable industrial waste water and the disposal of sludge from urban waste water treatment plants are subject to prior regulations and/or specific authorisations by the competent authority.Regulations and/or authorisations shall be reviewed and if necessary adapted at regular intervals. Competent authorities or appropriate bodies shall monitor the discharges from urban waste water treatment plants and the amounts and composition of sludge disposed of to surface water.Information collected by competent authorities or appropriate bodies shall be retained by the Member State and made available to the Commission within six months of receipt of a request.Member States shall ensure that every two years the relevant authorities or bodies with publish situation reports on the disposal of urban waste water and sludge in their areas and send them to the Commission.

b. Identification of the implementation steps• Analysis of the existing legislation in the field of water management and waste management

according to the requirements of the Directive

Responsibility: MEWMDeadline: 05/2003 – accomplished

• Update of the existing legislation in the field of water and waste managementResponsibility: MEWM, MAI, ANSRC

Deadline: 12/2004

• Issuing the relevant water management permits and licences for construction and operation of urban waste water treatment plants

Responsibility: MEWMDeadline: continuously• Periodical reviews and adaptation of the relevant legislation

Responsibility: MEWMDeadline: every 5 years

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• Periodical reviews and adaptations of the relevant water management authorizations for construction and operation of urban waste water treatment plants

Responsibility: MEWMDate: every 5 years

8. To ensure that biodegradable industrial waste water from plants belonging to the specified industrial sectors, which do not enter urban waste water treatment plants, before discharge to receiving waters respect before discharge conditions established in prior regulations and/or specific authorisation by the competent authority


Article 13 requires Member States to ensure that by 31 December 2000 biodegradable industrial waste water from plants belonging to the industrial sectors listed in Annex III of the Directive, which does not enter into the urban waste water treatment plants shall respect, before discharge to receiving water, the conditions established in prior regulations and/or specific authorisation by the competent authority or appointed body.

b. Identification the implementation steps• Data collection and analysis of existing situation concerning biodegradable industrial waste

water from plants belonging to the industrial sectors listed in Annex III which discharge in water resources

Responsibility: MEWMDeadline: 05/2003 – accomplished• Issuing of the relevant water management permits and licences according with the

requirements of the legislation in force

The agro-food units are authorized from the water management point of view, according to the legislation in force. Water management licenses impose discharge limits, taking into account the nature of the discharged waste water. For the units that are not under the provisions of Directive 91/271/EEC, compliance plans, included in water management licenses, are set up; these units are

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obliged to comply by carrying out the measures laid down in the plans until the date of accession.Responsibility: MEWMDeadline: until the date of accession

Periodical reviews and adaptation of relevant legislation.Responsibility: MEWMDeadline: every 5 years

10. To ensure the monitoring of discharged waste water, of relevant receiving waters and of sludge disposal procedures concerning sludge arising from urban waste water treatment plants


According to Article 15 of the Directive, the competent authorities shall monitor:• meeting the required emission limits of discharging waste water from urban waste water

treatment plants in order to verify the compliance with the requirements of Annex IB in accordance with the control procedures laid down in Annex ID

• amounts and composition of the sludge from urban waste water treatment plants disposed of to surface waters

• effect of discharging waste water upon relevant receiving waters.

b. Identification of the implementation steps• Analysis of the existing state of the monitoring according to the requirements of the Directive

Responsibility: MEWMDeadline: 03/2003 – accomplished

• Updating of the national monitoring system for water qualityResponsibility: MEWMDeadline: 05/2005

• Drawing of a methodology for collection and evaluation of monitored dataResponsibility: MEWMDeadline: 10/2004

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• Evaluation of the monitored dataResponsibility: MEWMDeadline: continuously

• Periodical monitoring according to the requirements of the DirectiveResponsibility: MEWMDeadline: continuously

• Adaptation of the Methodology for the collection and evaluation of the monitored dataResponsibility: MEWMDeadline: starting with 2005

11. Horizontal requirements

11.1. Designation the competenciesMinistry of Environment and Water Management (MEWM) has the main responsibility for the implementation of the UWWT Directive especially for:• establishing the water quality standards and objectives;• the permitting/licensing of the waste water discharges from human agglomerations or from

food industries, in accordance with NTPA 001/2002 and NTPA 002/2002 Normative;• the monitoring of surface water and of natural receivers in which urban or industrial waste

water is discharged;• the control of the compliance with the actual legislation and reporting to the European

Commission.Ministry of Administration and Interior (MAI) has the responsibility for the evelopment of an Action Plan for the rehabilitation, modernization and construction of collecting systems and waste water treatment plants within agglomerations of more than 2,000 p.e.Ministry of Transport, Constructions and Tourism (MTCT) is responsible for promoting the standards and technical regulations concerning the construction and operation of the collecting systems and urban waste water treatment plants.

As regards the Local Public Authorities, they have the responsibility of building sewage and waste water treatment systems (the implementation of the programme of rehabilitation, upgrading and construction of urban waste water treatment plants in relevant agglomerations; implementation of the action programme for waste water treatment in the agglomerations of less than 2,000 p.e.)

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11.2 and 11.3 Reporting and compliance

According to Article 17, Member States shall establish a programme for the implementation of the Directive and provide the Commission with information on this programme and its updating.The basic information is provided by preparation of this implementation plan.The first report on the status of implementation of the Directive in Romania in accordance with the requirements of Article 17 will be sent to the European Commission.

Responsibility: MEWMDeadline: for reporting - starting with the date of accession for compliance – until the end of 2018

11.4 Representation of Romania in the CommitteeAccording to Article 18, the Commission shall be assisted by a Committee composed of the representatives of the Member States. Romania shall nominate its own representative to this Committee after the date of accession.

COSTSAdministrative costsImplementation of Directive requires administrative resources mainly for the permitting activities at national and river basin directorates and appropriate sampling and monitoring system.

Water Law no. 107/1996 (amended by Law no. 310/2004) gives the National Administration “Romanian Water” the responsibility for these activities under the coordination of the Ministry of Environment and Water Management.It is estimated that EUR 50,000/year for permitting activities and staff will be needed. The increase of the staff of NARW with 87 by 2007 would mean an additional EUR 198,000 for salaries yearly, until 2007.

For the development of the monitoring system, in order to collect data and to transfer it to the Ministry, EUR 30,000 are required for monitoring instruments until 2007. Training would be needed for the staff, which will require EUR 100,000/year.

Technical compliance costsThe major problem is building up sewage networks (collecting system) and urban waste water treatment plants in order to achieve technical compliance with the provisions of the UWWT Directive. Therefore, the major constraints are directly related to the finances available for large investments.

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In order to estimate the implementation costs in agglomerations of more than 2000 p.e., an cost/agglomeration model was created. The model implies the use of a databases on the current situation, comparisons between the current expenditure for wastewater facilities (baseline) and that required by the Directive, according to the assumptions selected (the size of agglomeration, the level of treatment, rural or urban area).

These costs imply the following measures:• Construction of new urban waste water treatment plants;• Up-grading of the existing urban waste water treatment plants;• Up-grading of the existing waste water treatment plants in the agro-food industry;• Rehabilitation of the existing urban sewage collecting systems;• Construction and/or extension of urban sewage collecting systems.

Unit costs for construction of urban waste water treatment plants and rehabilitation /construction of urban sewage collecting systems were assessed according to the population equivalent.

The relationship population equivalent - investment costs was checked against ongoing projects.

Depending on the size of a town and the technology type, units investment costs in urban waste water treatment plant vary between EUR 250 (for agglomerations of more than 10000 p.e. and tertiary treatment), EUR 120 (for agglomerations between 10000 - 5000 p.e. and secondary treatment) and EUR 180 (for agglomerations of less than 5000 p.e. and secondary treatment).The investments also depend on the type of upgrading. When the increase of plant capacity is needed, additional specific assumptions are used (level of treatment, technological endowment).

The costs/p.e. for sewage systems were estimated according to the size of the agglomeration and type of collection networks (gravity system or combined with pump stations). Extensive investigations showed the same cost/p.e. for all categories of collection systems: EUR 160 for agglomerations of more than 5000 p.e. and EUR 75 for agglomerations of less than 5000 p.e..

The estimated costs for the implementation of UWWT Directive are about EUR 9.5 billion for investments, out of which EUR 5.7 billion for waste water treatment plants and EUR 3.8 billion for urban sewage collecting systems. Operating costs, for a transition period of 12 years, are estimated about EUR 3.4 billion.

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Financial ResourcesThe national sustainable development strategy in the field of public services was finalized at the beginning of 2004.

Several measures laid down in this strategy have as purpose to establish the realistic financing request for the works in the field of water services, as well as a credible and stable framework for the investment planning, on the basis of some principles recognized at international level (e.g. subsidiarity, efficiency and “polluter pays”).

The financial resources envisaged are: multilateral grants, loans for public service and infrastructure investments with governmental or local guaranties, stimulation of private funds and public-private partnerships.The pre-accession instruments (ISPA, SAPARD, SAMTID, PHARE) are also used to finance the works in the field of waste water sewage and treatment.

Thus:- 23 investment projects in water infrastructure of large agglomerations (of more than 150,000 p.e.) have already been financed through ISPA in a total amount of over EUR 850 million; the total amount for a project is more than EUR 5 million; the project proposals for other agglomerations will allow their financing by 2010, in a total amount of approx. EUR 600 million;- the SAPARD programme regards the financing of investment projects in the ruralenvironment, for small agglomerations; from the available data, by 2006, projects financed through this financial instrument, in a total amount of EUR 277 million, will be developed (the total amount for a project does not exceed EUR 1 million);• SAMTID Programme will support small and medium towns infrastructure development for

230 small and medium towns (with a population of 6.2 million inhabitants), by using funds of EUR 380 million (out of which 50% are grants) for 10 years, by 2014.

Starting with the date of accession, as Member State, Romania will benefit of cohesion funds for environmental infrastructure. On the basis of the financial assessment, for the environmental sector, during 2007 – 2009, EUR 994 million will be allotted, out of which more than a half would be used for the investments in the field of water. Funds from the state budget, local administration or private investors will be added to the abovementioned funds, so that, during the requested transition period, there would be sufficient financing possibilities for the investment works, for compliance.The support of international financing institutions: BIRD (International Bank for Reconstruction and Development); EIB (European Bank for Investments); EBRD (European Bank for

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Reconstruction and Development) should also be mentioned.The main financing sources are: approx. 40% from EU funds; 30% from national and local budget, 20% credits and public-private partnerships, 3% Environment Fund, 7% population.

Summary and conclusionsAt present, the estimated costs for the implementation of UWWT Directive are about EUR 9.5 billion for investments, EUR 5.7 billion for waste water treatment plants and EUR 3.8 billion for urban sewage collecting systems.For succeeding in the implementation of the UWWT Directive, important financial efforts are needed. A progressive, annual financial schedule, and a contribution of between EUR 550 million/year and EUR 800 million/year, for 12 years after the accession date, is needed. Taking into account the present financial situation of Romania and the costs generated by the implementation of the UWWT Directive, the proposed annual financial schedule conclude that:

• the direct environmental effects are more significant on the short term if the actions are focused on large agglomerations, where important quantities of waste water are concentrated;

• financial capacities can be more easily mobilized in the large agglomerations than the smaller ones;• larger investments in treatment are needed for small agglomerations, due to the particular

solutions requested;• from the technical point of view, it is easier and more rapid to extend or to rehabilitate the

sewage system or a waste water treatment plant than to build a new facility; Having in mind the negative effects of waste water on environment from different classes of agglomerations, it may be considered that an integrated and unitary approach is needed in the conditions of a prudential and rational use of water resources. This means an important, constant financial effort of Romania, together with the external support, mainly from the E

Source: IMPLEMENTATION PLAN for Council Directive 91/271/EEC concerning urban waste water treatment, as amended by Directive 98/15/EC, internet source [www.rowater.ro/.../Implementation%20Plan...]

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Vasile Puşcaş is professor at the Babeş-Bolyai University in Cluj-Napoca (Romania), teaching courses in International Relations and Negotiations, European Studies and European Negotiations, Central and Eastern Europe in the XXth Century International Relations and International Business Relations and Conflict Management. Since 2000 he has been teaching at the International University Institute of European Studies (IUIES) in Gorizia/Trieste (Italy). He is a Board member of several professional organizations such as the Institute for Cultural Diplomacy in Berlin, European University Institute in Florence, the Institute for International Sociology in Gorizia, Foreign Policy (Romania) and “Central European Review”(Budapest).

Between 1991 and 1994 he worked as a diplomat (in New York and Washington, D.C.). From December 2000 until the end of the accession negotiations with the European Union (December 2004), he was the Chief-Negotiator of Romania and also a member of the Romanian Government. Between 2000 and 2008 he acted as a member of the Romanian Parliament.

He also acts as a consultant for several local and international companies offering expert advices on European and international affairs.

Author: Dr. Petru Groza – pentru o „lume nouă”, ( 1985), Alma Mater Napocensis – Idealul universităţii moderne (1994), Al Doilea Război Mondial. Transilvania şi aranjamentele europene. 1940-1944 (1995), Căderea României în Balcani (2000), Central Europe Since 1989 (2000), Pulsul istoriei în Europa Centrală (1998), Relaţii internaţionale contemporane (2003), Speranţă şi disperare - Negocieri româno-aliate, 1943-1944 (2003), Universitate-Societate-Modernizare (2003), Negociind cu Uniunea Europeană, 6 volumes, (2003-2005), Relaţii internaţionale/transnaţionale (2005), “Sticks and Carrots”. Regranting the Most-Favored-Nation Status for Romania (US Congress, 1990-1996) / “Bastoane şi Morcovi”, Reacordarea clauzei naţiunii celei mai favorizate (Congresul SUA, 1990-1996) (2006), European Negotiations. A Case Study: The Romania’s Accession to EU (2006), România şi iar România. Note pentru o istorie a prezentului (2007), Relatii Internationale/Transnationale (2007), România spre Uniunea Europeană. Negocierile de aderare (2000-2004) (2007), România: de la preaderare la postaderare (2008), Teme europene (2008), Teme europene (2008), Euro-Topics (2009), International /Transnational Relations (2009), Managing Global Interdependencies (2010), Europa în Criză (2011), Uniunea Europeană. State-Pieţe-Cetăţeni (2011), Spiritul european, azi (2012).