EU enlargement and admission into the Schengen Zone: once a fait accompli, now a moving target.

AuthorKeister, Liane Malcos

    Transnational economic and political integration has long served as a bellwether of global influence and power. (1) The European Union (EU) has employed its enlargement policy to include new member states, expand its transnational borders, and thrive as an economic and political integrator. (2) Bearing witness to the benefits of EU membership, Romania and Bulgaria initiated the enlargement policy's accession process toward full membership. (3) Yet, these countries faced stricter accession requirements than any other country before. (4) Despite these challenges, Romania and Bulgaria met the criteria for admission to the EU's Schengen passport-free zone, a major hurdle in the process toward enjoying the full benefits of EU membership. (5) The EU nevertheless has repeatedly delayed the vote for entry. (6) The disparate treatment experienced by Romania and Bulgaria exposes the EU's failure to adopt a cohesive foreign policy strategy, and in turn belies the global influence of the EU edifice and threatens to diminish its credibility as a geopolitical leader. (7)

    This Note explores the consequences to EU legitimacy of denying admission to the Schengen zone to Romania and Bulgaria, both of which risk fragmentation and instability, and the need for internal cohesion and commitment to transnational relations. (8) First, Part II traces the accession process and examines the foundational principles underlying the EU and Schengen Zone. (9) Part III explores the origins and motivation of the accession process as an instrument of domestic change, and examines the specifically enumerated areas of reform concerning the EU with respect to Bulgaria and Romania; namely, judicial reform, criminal affairs, and border security. (10) Finally, Part IV urges the EU to adopt clear, consistently applied accession methodologies reflecting sound policy, rather than reactionary fervor. (11)


    1. Origins of the European Union

      The European Union has its origins in the 1951 Treaty of Paris, which created the European Coal and Steel Community. (12) In the wake of World War II, its member nations united, "pooling their resources to preserve and strengthen peace and liberty," and augering economic prosperity and political stability in the region. (13) To achieve these aims, Article 2 of the Treaty established a common market and sought to coordinate economic policy. (14) The common market organized around four fundamental freedoms: the free movement of capital, the freedom to provide services, the free movement of goods, and the free movement of people. (15) Integral to accomplishing these objectives, the Community contemplated the inclusion of new member nations through a process called "enlargement." (16) To promote long-term stability and success, enlargement is based in a commonality of values in democracy and the rule of law, peace and freedom, and tolerance and solidarity. (17) By expanding its borders and gaining new membership, the Community pursued new economic opportunities and prospered. (18) The EU ascribes to the same integration philosophy today. (19)

      The European market transformed with the signing of the Maastricht Treaty in 1992, by which its signatories officially created the European Union and guaranteed citizenship to the people of its member states. (20) With the establishment of the EU as a supranational body capable of conferring citizenship rights to its members, the Maastricht Treaty also created a single market, "without internal borders." (21) A market free from internal borders, which guaranteed the free movement of its citizens, therefore truly embodied the four fundamental freedoms underlying the origins of the European Union. (22) The deepening of political and cultural bonds across national borders and to people who shared a common citizenship and sense of belonging was a bond of deep symbolic and psychological importance. (23) It allowed ordinary Europeans to experience for themselves the benefits of European integration. (24) To its citizens, freedom of movement throughout the EU was a right borne out of experience, not rhetoric. (25) The Maastricht Treaty thus represented a central moment towards deeper European integration. (26)

    2. Accession

      The Maastricht treaty solidified the criteria for enlargement through a formal process called "accession," by which a candidate country gains membership to the EU. (27) To initiate the process, a candidate country must submit an application to the European Council. (28) If the European Council unanimously agrees to proceed with the accession application, the candidate country then begins formal negotiations with all member states. (29) The negotiation stage triggers a substantial evaluative process by which the candidate country must demonstrate three formal accession criteria, and the capacity to implement and exercise EU rules and procedures. (30) First, as a political criterion, the EU requires an applicant country to have stable political systems guaranteeing the rule of law, human rights, and protection of minorities. (31) Second, as an economic criterion, the EU requires a functioning market economy, capable of remaining competitive within the EU market. (32) Third, as a legal criterion, the applicants must be able to assume EU membership responsibilities, and live up to the EU's political and economic aims. (33) These criteria meant to clarify enlargement obligations to ensure successful integration. (34)

      The European Commission serves as the monitoring body during the negotiation stage, setting certain pre-accession conditions, or "benchmarks," for each candidate country. (35) The European Commission monitors the fulfillment of these conditions and informs the European Council and European Parliament about the progress of each candidate through regular reports and strategy papers. (36) Each candidate country moves through the process at a pace set by the candidate's pace of reforms and alignment with EU laws. (37) These benchmarks are meant to smooth the path toward a successful accession. (38) Once the European Commission, European Council, and European Parliament are satisfied with the candidate's level of reform, an Accession Treaty is signed, granting the candidate country membership to the EU. (39)

      When a country signs an Accession Treaty, it commits itself to transposing a body of EU laws, called the acquis communitaire, into its own domestic legal framework. (40) In so doing, the applicant country adopts and promotes certain values fundamental to the EU. (41) This adoption is not limited to integrating EU legislation however; indeed, the EU emphasizes the importance of implementation and enforcement of these rules and regulations to give full effect to the laws. (42) The EU views this commitment as an expression of mutual trust vital to a successful enlargement and membership rapport. (43) Enlargement represents one of the EU's most established and successful policies. (44)

    3. Schengen Zone

      The Schengen Zone was established in 1985 to guarantee the free movement of persons across a transnational territory. (45) The agreement grew out of a debate among EU member states in the 1980s over the meaning of the fundamental free movement concept. (46) Some EU member states wanted to guarantee free movement only to EU citizens, preserving internal border checks to distinguish between EU and non-EU citizens. (47) Other member states favored free movement for everyone within the EU perimeter and the cessation of internal border checks. (48) In the end, the member states could not reach a consensus. (49) Belgium, Germany, France, Luxembourg, and the Netherlands signed the original agreement granting free movement to everyone residing within the borders of the signatory states, and gradually every EU member joined the Schengen Zone. (50) When the agreement took effect in 1995, its signatories dismantled internal border checks to provide a single, external EU border. (51)

      Common rules concerning visas, asylum rights, and external border checks were adopted to give effect to this expanded transnational relationship. (52) The dismantling of internal borders necessarily demanded a strengthening of the external border that circumnavigates the EU perimeter. (53) Police forces, customs officials, and the judiciary must coordinate effectively to enforce these provisions. (54) Ultimately, the integrity of this border and the success of the zone depend on the member states whose national borders lie at this periphery. (55)

      In 1997, the EU incorporated the Schengen Agreement into its framework as part of the acquis communitaire. (56) The body of legislation, which provides the rules and regulations for the Schengen Zone is known as the "Schengen acquis." (57) When new nations apply for accession to the EU, as part of implementing the acquis communitaire, they also must implement the Schengen acquis into their national legislation. (58) Once the Accession Treaty is signed, however, and EU membership is gained, membership status neither guarantees admittance into the Schengen Zone, nor does the new member state automatically enjoy the benefits and privileges associated with the free movement of the zone. (59) This result appears at odds with the free movement of persons, a concept that is consonant with the aims of the Schengen Zone. (60) Nevertheless, as with the signing of the Accession Treaty, the European Council, Parliament, and Commission must vote unanimously in favor in favor of admitting the applicant country into the Schengen zone. (61)

    4. Enlargement Illustrates EU Legitimacy Compact

      EU enlargement, which includes Schengen Zone admission, provides a mechanism for the EU to manifest its legitimacy as a geopolitical leader. (62) A successful enlargement strategy must balance three elements: economic integration, political integration, and autonomous nation-states. (63) Economic and political...

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