This publication was elaborated within the framework of the EU Phare supported project RO-2002/000-586.03.01.04.02 – “Initial Training in European Affairs for Civil Servants from the Central Public Administration in Romania”, implemented by the European Institute of Romania in collaboration with EUROMED – Euro Mediterranean Networks from Belgium in September 2005.

©2005, Institutul European din Romania

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PREFACE
In front of you, you will find the “handbook on EU Affairs”, which is a tangible outcome of project RO-2002/000-586.03.01.04.02, “Initial Training in European Affairs for Civil Servants from the Central Public Administration In Romania”. The project’s main aim was to familiarise a group of maximum 400 civil servants operating at central administrative level with both the general and more specific aspects of the European integration process basically to prepare Romania and its administration adequately for the future integration into the EU. Throughout the project implementation period, which took place from December 2004 up to October 2005, over 40 trainers from both EU Member States and Romania facilitated 32 training sessions. Each session was facilitated by three different trainers. One academic trainer from an old EU Member State was assisted by a Romanian trainer. A new aspect in the current project was the fact that representatives from administrations of the new EU Member States were prepared to share their preaccession experiences with their Romanian colleagues. In this way, first hand accession related information was forwarded to the trainees. In order to make the outcome of the project sustainable and the training material accessible to a much wider audience, it was decided to produce a “handbook on EU Affairs” under the project. Authors of the different papers included in this publication were all involved in activities implemented during project implementation and served as trainer/facilitator under the project. The function of the “handbook” is that it can serve as a reference guide to all civil servants who are currently active in the Romanian administration (both at central and de-centralised level) and who are directly or indirectly involved in the accession process that will culminate in full membership for Romania. Without the professional and enthusiastic support of all those who helped us by contributing to this publication, it would have never been possible to finalise the document in time and print it successfully. We are especially grateful to one of our consortium partners, the “Katholieke Universiteit of Leuven” (Belgium), who managed to attract some extremely professional academic experts on a number of topic areas. Also the dedicated way in which some of the Romanian trainers have been involved in this exercise must be mentioned here. In addition, we owe a word of thanks to those civil servants from the new EU Members States who were willing to contribute to this publication and whose contributions turned out to be extremely valuable. A final word of thanks goes to both the European Institute of Romania (EIR) and the Delegation of the European Union in Romania. Both institutions gave us the chance to implement the project following a fixed approach that has resulted among others into this publication. Bucharest, August 2005, On behalf of the EUROMED project team, Rolf Hunink, team-leader

ABBREVIATIONS
ACP AFSJ CAP CEFTA CFSP EAFRD EAGF EC ECB ECHO ECJ ECOFIN ECSC EDF EEA EEC EFTA EMS EMU EP EPA ERM ESCB ESDP EU EURATOM EURODAC GATS GATT GDP GNP GSP IACS ISPA JHA NATO NIS OCT OECD OMC PHARE - African, Caribbean and Pacific Countries - Area of Freedom, Security and Justice - Common Agricultural Policy - Central European Free Trade Agreement - Common Foreign and Security Policy - European Agricultural Fund for Rural Development - European Agricultural Guarantee Fund - European Community - European Central Bank - Humanitarian Aid Office of the European Commission - European Court of Justice - Council formation coordinating economic and financial affairs - European Coal and Steel Community - European Development Fund - European Economic Area - European Economic Community - European Free Trade Association - European Monetary System - Economic and Monetary Union - European Parliament - Economic Partnership Agreements - Exchange Rate Mechanism - European System of Central Banks - European Security and Defence Policy - European Union - European Atomic Energy Community - Computerised central database for comparing the fingerprints of asylum applicants in the EU - General Agreement on Trade in Services - General Agreement on Tariffs and Trade - Gross Domestic Product - Gross National Product - Generalised System of Preferences - Integrated Administration and Control System - Instrument for Structural Policies for Pre-accession - Justice and Home Affairs - North Atlantic Treaty Organisation - Newly Independent States - Oversea Countries and Territories - Organisation for Economic Co-operation and Development - Open Method of Coordination - Poland and Hungary Assistance for the Restructuring of the Economy; (currently the EU’s main financial instrument for accession of the Central and Eastern European countries) - Qualified Majority Vote - Special Accession Programme for Agriculture and Rural Development - Stability and Growth Pact - Treaty on the European Community - Treaty on the European Union - Trade-Related Aspects of Intellectual Property Rights - United Nations Organisation - Western European Union - World Trade Organisation

QMV SAPARD SGP TEC TEU TRIPS UNO WEU WTO

TABLE OF CONTENTS
SECTION 1: GENERAL EU AFFAIRS Chapter 1: History of EU Integration and the EU Institutional Framework Frank Delmartino, Rudolf Hrbek Chapter 2: European Union’s Policies Laurent Van Depoele, Ana Maria Dobre Chapter 3: Transposition and Implementation of EC Directives and EC Control of Correct Implementation of EC Law - Experiences of France François Brillanceau SECTION 2: INTERNAL MARKET Chapter 4: The Functioning of the Internal Market Robert Hine Chapter 5: Transposition and Implementation of the Internal Market Acquis - Experiences of Poland Grzegorz Lang Chapter 6: EU Telecommunciations Policy Jukka Kanervisto Chapter 7: Adopting the Acquis Communautaire in the field of Information Society - Experiences of Poland Arkadiusz Plucinski Chapter 8: EU Transport and Infrastructure Policy and Experiences of the Slovak Republic in Implementation Roman Horvath Chapter 9: EU Energy Policy and its Transposition and Implementation in Romania Lavinia Ileana Andrei SECTION 3: EU COMMON AGRICULTURAL POLICY Chapter 10: The EU Common Agricultural Policy Laurent Van Depoele Chapter 11: Implementation of the Common Agricultural Policy in Poland Katarzyna Okon Chapter 12: The Transposition of the Romanian Agriculture and Rurality to the EU Common Agricultural Policy Cosmin Sãlãºan `

9 27

51

67

77 89

107

117

131

143 151

167

SECTION 4: EU REGIONAL DEVELOPMENT AND COHESION POLICY Chapter 13: EU Regional Development and Cohesion Policy Charalampos Koutalakis 175 Chapter 14: Implementation of Regional Development Policy - Experiences of the Slovak Republic Silvia Matúšová 187 Chapter 15: Regional Development Policy in Romania - Institutional Transformations and Future Challenges Daniela Luminiþa Constantin 197

SECTION 5: EU ENVIRONMENTAL POLICY Chapter 16: EU Environmental Policy Hans Bruyninckx Chapter 17: Adapting the Romanian System for the Protection of the Environment to EU Standards - Outcomes and Future Challanges Cristina Maria Arion SECTION 6: EU ECONOMIC POLICY AND EMU Chapter 18: Economic and Monetary Union Kenneth Dyson Chapter 19: Implementing the EMU Acquis - Experiences of Slovenia Matej More SECTION 7: EU SOCIAL AND EMPLOYMENT POLICY Chapter 20: EU Social Policy, Employment Policy, Higher Education and Research Policy Erol Kulahci Chapter 21: Transposition and Implementation of EU Social and Employment Policy - Experiences of the Slovak Republic Valéria Kubalová SECTION 8: EU JUSTICE AND HOME AFFAIRS Chapter 22: EU Justice and Home Affairs Jörg Monar Chapter 23: Implementation of EU Justice and Home Affairs in Poland Adam Dudzic Chapter 24: Implementation of EU Justice and Home Affairs in Romania Sebastian Laurenþiu Lãzãroiu SECTION 9: EU TRADE AND DEVELOPMENT POLICY Chapter 25: EU External Trade and Development Policy Bart Kerremans, Jan Orbie Chapter 26: Implementation of the EU Trade and Development Policy Experiences of Poland Sebastian Barkowski Chapter 27: Transposition and Implementation of the EU Trade and Development Policy - Costs and Benefits for Romania Florin Bonciu SECTION 10: EU COMMON FOREIGN AND SECURITY POLICY Chapter 28: EU Common Foreign, Security and Defence Policy Fulvio Attinà Chapter 21: Romania’s Security and Defence Policy from the Perspective of the Common Foreign and Security Policy and the European Security and Defence Policy Liviu Mureºan 353 327 293 309 319 245 255 213

225

269

283

341

347

363

SECTION 1 GENERAL EU AFFAIRS History of EU Integration EU Institutional Framework EU Policies Transposition and Implementation of the Acquis Communautaire .

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finally. Belgium. Bruges. worldwide.Chapter 1 CHAPTER 1 HISTORY OF EUROPEAN INTEGRATION AND THE EU INSTITUTIONAL FRAMEWORK Frank Delmartino. stressing the rule of (international) law and the end of excessive state-centrism. Belgium and Visiting Professor at the College of Europe. Rudolf Hrbek holds a Chair for Political Science at the University of Tübingen.1. the ongoing operation of enlargement and the process of ‘constitutionalisation’ will be approached as complementary dimensions of the ‘widening’ and the ‘deepening’ of the Union. Bruges. A new world order was ready for emerging from the debacle. Their devastating effect was not only physical. Belgium. The two European wars (1914-1918 and 1939-1945) gradually expanded into world wars. Rudolf Hrbek* 1.and decisionmaking process? and. Finally. INTRODUCTION A handbook that mainly deals with European policies clearly needs an introductory chapter on the European construction as a whole. Crucial questions should be addressed. given the current operation of enlargement and the drafting of a constitutional treaty? In line with the questions mentioned above. * Frank Delmartino is Jean Monnet Professor at the Catholic University of Leuven. such as: Who initiated the European integration process and which phases in the process can be distinguished? Which are the main institutions and actors in the EU’s policy. Where are we going from here. but moral as well. 2. first the European integration process will be presented in a historical perspective. He is also Visiting Professor at the College of Europe. followed by an overview of the main EU institutions and decision-making processes. The context The general history of the European continent in the first half of the twentieth century is well known. 9 . a Jean Monnet Chair and is Responsible for the Jean Monnet Centre of Excellence at University of Tübingen. as it has indeed affected the entire world. material and economic. THE EUROPEAN INTEGRATION PROCESS IN A HISTORICAL PERSPECTIVE 2. Germany.

a Community was to be established. this agreement marks a new era in European intergovernmental cooperation. its sovereign regulating powers in the crucial strategic fields of coal and steel. Apart from the German Chancellor Adenauer. trade-unionists.Chapter 1 The framework for a worldwide new legal order was provided by the United Nations Charter (1945). Unanimity among many states is hard to achieve. and the American Marshall plan was much welcomed as a decisive boost. were not too enthusiast. Robert Schuman. They did not welcome any threat to the sovereign decision-making power of the Parliament in Westminster. stipulating the fundamental freedoms and the preconditions for the rule of law. envisaging a supra-national authority with effective powers for guaranteeing a peaceful and stable political and economic order. Undeniably. having the legitimacy and the moral authority for setting a new standard. Moreover. the French move was a surprise to all European governments. as they strongly supported closer cooperation between the European partners. A court. exercising supra-national competences. Europe’s economy was in a very poor condition indeed. some politicians. a particular formula had to be found for guaranteeing peaceful relations and overall social and economic development. was established for supervising their correct application. the so-called ‘European Movement’ was mainly rooted in civil society. A Council of Europe was established in 1949. 10 . with a ‘High Authority’ as decisive actor. to forge a fundamentally new type of transnational integration. The outcome of the first assembly of the ‘federalists’ (1948) was not warmly welcomed by the governments. Nevertheless the opportunity was not seized for setting up a systematic transnational cooperation. only the West-European countries were effectively benefiting from the transatlantic input. On the other hand. intergovernmentalism does not reach beyond the willingness and commitment of the least devoted partner. In line with the wording in French language “mise en commun” (‘pooling’). The British. As a result of the inceptive Cold War. encompassing a Parliamentary Assembly and a Conference of Ministers (of Foreign Affairs). However. Given the state-centrism of most governments. especially with regard to crucial political and economic issues. Academics. A Convention was agreed upon and formally enacted. on the other hand. Such an initiative had to come from a key actor. as they are understood in the constitutional tradition of the Western liberal democracies. with its outspoken antagonisms. France proposed to share with Germany and with other interested countries. based in Strasbourg. Only the USA were informed on beforehand. on the European continent. but the only major breakthrough was realised in the field of human rights. their relation with Europe was ambiguous: for sure they were with Europe. was indeed breaking new ground. One could indeed not expect from the Council of Europe with its Assembly–based method of decision-making. in one word: activists of all kind advocated a federal type institutional order for the old continent. The proposal made on a press conference on 9 May 1950 by the French Minister of Foreign Affairs. who agreed in advance.

The Coal. the external threat of the Cold War and the support of the USA. once appointed.2. combining legislative 11 . The foundations Once the six founding countries had agreed on the principle of sharing their sovereign rights in the particular field of coal and steel.Chapter 1 but were they in Europe? Finally the reaction of Britain and the Scandinavians was negative. taking the succession of the High Authority. in the more encompassing Treaty of Rome (1957). Having highlighted the unique position of the High Authority. and the proper decisionmaking assigned to the Council of Ministers. and more decisively since Maastricht (1992). have restored the balance between supra-nationalism and intergovernmentalism. their political assent had to be formulated in legally solid and consistent institutions and procedures. And here Jean Monnet came to the fore as a skilful negotiator. In Monnet’s eyes.and Steel Community was thus bestowed with the most elaborate form of technocratic power. In its first years of existence. The Treaty of Paris (1951) has given birth to the first truly supra-national institution on the European continent. the ‘Haute Autorité’ (High Authority) of technocrats should be given all responsibilities for regulating the sector in an authoritative way. when the energy and steel sectors had been determining factors in preparing and conducting the wars. These ‘Eurocrats’ should be nominated by the member states and approved by the Council of Ministers. the treaty making powers. Although the High Authority. the year 1950 was gathering all preconditions for a unique juncture. Schuman’s initial plan was not concrete at all. given to the European Commission. The Treaty of Paris was far going indeed in transferring regulatory powers to the supra-national High Authority. In the light of history. the full transfer of state powers to an appointed transnational body was never repeated. opening the path towards integration: the intelligence and courage of the leaders. was a cynical but not unfounded British remark at that time. not for supervising the High Authority. Remarkably enough. “The French have a plan to have a plan”. however. The golden years of the Monnet-method have been short. the supra-national character of the European integration process was reaching its highest peak. A Council of Ministers was foreseen. A few years later. was highly performing. a division of tasks will be introduced between the functions of policy initiation and – implementation on the one hand. had still to be shaped in operational terms. led by Monnet. on the other. as it was seen as a way of bypassing the disastrous state policies of the past. in other words the heavy industry of the early fifties. they would no longer accept any instruction from their governments and only serve the European interest. The institutional formula. 2. in fact the governments of the Member States. but for dealing with the implications of the coal and steel policies on the overall economic development. the strong motivation of the European movement. this transfer of authority was widely accepted throughout society at that time. However. In Rome. whereas Italy and the Benelux countries were prepared to start negotiations.

Moreover.Chapter 1 with executive powers. the French Prime Minister René Pléven wanted to establish a genuinely European defence capacity based on systematic cooperation in the field of foreign policy. the French Parliament rejected the project (1954). The deception was so general that many doubted about the future of the integration project. Meeting in Messina (Sicily) in 1955. by interpreting the treaties in a consistent pro-integrationist way. In this respect the opportunities of the mid-fifties were twofold: on the one 12 . in other words: economic integration. These delegates of the national parliaments of the six Member States were asked for advice on all legislative proposals. A tremendous opportunity was lost for complementing the technocratic Coal and Steel Community with a political superstructure. Although directly elected since 1979 and empowered by all treaty revisions since 1986. an agreement among the ‘Six’ was reached. European initiatives should indeed be consistent with national policies. From ‘high politics’ to economic integration A painful illustration of the limits of European integration was given by the aborted treaty on a European Defence Community. Despite the major changes these four actors have been going through in the last fifty years. the Treaty on the European Defence Community (1952) was never ratified. However. Right from the beginning a Parliamentary Assembly was foreseen as an important consultative body. the Ministers of Foreign Affairs agreed on concentrating their attention once more on ‘low politics’. In these moments of crisis the Benelux countries were taking over the initiative. and vice-versa. they still form the institutional backbone of the Union. There is a striking continuity in this respect. This significant though not decisive role in the early years of the European Community has marked the perception of the European Parliament (EP) by the general public. the Court of Justice has been a crucial actor right from the beginning of the integration process. it has contributed to the creation of a solid body of European law. The failure of setting up a common foreign and defence policy was very deeply resented.3. has never been questioned. Shifting away from its government’s view. One should not underestimate the stabilising effect of legal standards and procedures – the so called ‘acquis communautaire’ – on a Community/Union frequently shaken by political turmoil. the EP is still lacking the central place in political life it occupies in national democracies. applying in essence the Monnet-formula to the domain of ‘high politics’. the members of Parliament were seen as part of a network of mutual information. On the other hand. albeit in a ‘technical’ policy field. In the ‘europhoric’ early fifties. although membership has increased dramatically and the competences are covering nowadays nearly the full spectrum of public policy. one should not forget about a third and a fourth actor. 2. consultation and (limited) involvement in the decision-making process. Next to the Council of Ministers. Its authority in solving legal disputes. quite often involving Member States. Given the external threat of the East-West confrontation.

the Treaty of Rome has been a cornerstone for European institutions and policies. over the years. albeit highly effective. looking for constitutional status. The integration process will follow this path throughout the sixties. the overall picture will be rebalanced. foremost in the field of agriculture. an Atomic Energy Community (commonly called Euratom) was established. Fiscal harmonisation between the Member States. as the EEC was commonly named at that time. the EEC has been a success story. the treaty makes clear in its preamble that the Member States are “determined to lay the foundations of an ever closer union among the peoples of Europe”. Initiated as a successful Customs Union in the late fifties and early sixties. focusing on its profile as a successful transnational economic organisation. The economic and monetary union (EMU). whose concluding point has not been reached yet. A lot has still to be achieved for fully guaranteeing the ‘four freedoms’: the free circulation of persons and goods. dealing with regulatory issues. initiated in the nineties (Maastricht. for example.1 of the Treaty on European Union (1992) as a crucial mission statement. is still in an embryonic phase. seventies and eighties: a strategy of pragmatism.Chapter 1 hand the availability of nuclear technology for civil purpose. So. Whereas most of the coal mines have been closed in the meantime and the use of nuclear energy is controversial nowadays. In any case. It illustrates the open end-character of the Treaty of Rome: a series of concrete arrangements are made and commitments are taken. endeavours. including a single currency for most of the Member States. giving a boost to this emerging industrial sector. it gradually evolved into a Common Market in the sixties and seventies. Quite some pragmatic nations will be attracted by this ‘Common Market’. the Delors Commission was seeing its achievement as its first priority. is in fact not entirely new. the present-day politicaleconomic Union. 13 . In one word. by leaving out for some time ‘high politics’ and embarking on less symbolic. Only after a dramatic shift in the international order (1989-1991). Consequently. 1992). capital and services. but this is to be considered as a step in an ongoing process. albeit in a fundamentally different context. was to become the flagship of the integration process. the European leaders were taking a historical decision with far reaching consequences. In our view the aims of the founding period are back on the agenda. This wording has been kept in all updated versions and has been taken over in art. including safety measures. is the latest step. Transnational research centres were founded. but a stepping stone towards future development as well. The second Community to be founded was the European Economic Community (EEC) that. In the late eighties. as well as with research and development. and on the other the growing awareness that lowering the customs tariffs between the Six would stimulate their trade relations and ultimately their overall economic development. especially as a source of energy.

Pierre Werner. Denmark and Norway (1973). exactly as they would do twenty years later (1994). Widening the Community was another decision of the summit in The Hague. and was delivering in 1970 a recommendation on closer monetary cooperation. the so called Plan Fouchet (1961). it should deepen its profile by taking on board new policy fields and. almost thirty years after Werner’s recommendation. till the moment would come for more outspoken statements.4. however. it should widen its horizon by being open to new membership. regarding political cooperation. Only in Maastricht (1992). The Norwegian voters.and Security Policy (CFSP) was to be (re)introduced in Maastricht. but rather challenging the British and transatlantic ‘allies’. In this perspective quite some initiatives were taken unilaterally. the Treaty on European Union was formally introducing the EMU and the single currency became finally operational in 1999. the committee suggested to leave the systematic political cooperation to the ‘professionals’. The committee dealing with political cooperation did not want to be trapped in the old debate on sharing sovereignty in high politics. in this case the directors of political affairs in the six Ministries of Foreign Affairs. Common Foreign. It was a deliberate choice for a low profile in political cooperation. It is important to note that each and every operation of enlargement has its effects in 14 . Pierre Davignon. The one on the EMU was chaired by the Prime Minister of Luxembourg. The partners. did not follow their government and rejected the accession treaty in a referendum. Chaired by a Belgian diplomat. Completion. Therefore. when the British government repeatedly showed an interest in joining the Community (1963. Moreover. but was based on many years of diplomatic consultations in the political committee. First of all with Britain and other members of the European Free Trade Association (EFTA): Ireland. He insisted on the intergovernmental character of the integration project. The European Community was seen as a ‘zone of influence’ where France could exercise its political leadership. disliking supranational guidance from ‘Brussels’. For both topics a committee of experts was appointed. Deepening. As soon as de Gaulle left office in 1969. As far as deepening was concerned.g. At a historical summit meeting of the Six in The Hague (December 1969). Georges Pompidou. finally.Chapter 1 2. did not deceive his partners. aiming at establishing a Political Community. the general was openly opposed. however. 1967). Exactly as for the EMU. two fields were taken into consideration: economic and monetary union on the one hand and political cooperation on the other. However. Behind closed doors they would meet regularly and try to coordinate their positions. It was argued that the Community first of all should complete the internal market decided upon in the Treaty of Rome. new hopes raised of deepening and widening the integration process. the monetary system suffered from the turmoil in the seventies and eighties. the new French president. were suspicious as they had the feeling that the discourse was not genuinely oriented towards greater internal consistency. e. Widening The impact of General de Gaulle as a dominant leader in the European arena (19581969) has not benefited to the dynamic expansion of the young European Community.

Between the Franco-German axis.Chapter 1 terms of added economic-political value and. The only major institutional changes of that period regarded the European executive branch (1965) and the European Parliament (1979). So. Jacques Delors advocated a ‘voluntarist’ approach: a policy not only aiming at regulating but at changing society. Under his leadership the Commission took the lead in upgrading the various policies of the Community. however. in most cases supported by the Beneluxcountries and Italy. new dimensions of economic integration could not be incorporated into the legal charter. in good and bad days. As the Treaty of Rome was considered sacrosanct during the sixties and seventies. more and more approaching the profile of a welfare state. to be achieved by 1992. Welcoming Greece (1981). by increasing the disparities between the better off countries and those lagging behind. but one should keep in mind that most of the newcomers joined the Economic Community rather than the Political Union. in some case. less dogmatic and more pragmatic. with some commitment to each other. etc.. On the content. In any case. The newest enlargement (2004) with ten. this pragmatic style can be observed in the way the Community has been dealing with new policy fields. the new awareness of the environmental dimension. With the start of the enlargement exercise. the need for regional development policies. More recently (1995). in other words the ‘Founding Fathers’. no new treaty provisions were made until 1985-1986 with the enactment of the so-called Single European Act. Spain and Portugal (1986) was significant in this respect. For almost a quarter of a century (1950-1973) the Six were building up a ‘family tradition’. mainly Central. was establishing funds and programmes that significantly contributed to a diversification of the policy spectrum. the Community was given legislative capacity. The EEC was more than a regulator. but. However. The euroscepticism of some British is well known. there is quite often a fundamental difference in perception of the European project. has challenged. an updated institutional framework – a new treaty – was missing. 15 . Sweden – once again the attractiveness of the Single Market vis-à-vis the more loose EFTA-formula was demonstrated. Finland. with the accession of three countries with a high GDP – Austria. it was proactive in many respects. Next to its commitment to the Single Market. and the new Member States. As a result of the events of 1989. an unexpected opportunity was offered for a brand new Treaty on European Union. for a consistent research strategy. Apart from this economic dimension. more than ever before. quite evidently. i. The three Communities were given a single management structure: one Commission and one Council of Ministers. at least economically.and Eastern European countries. a ‘Europe of the second generation’ has emerged. the assimilation capacity of the Union. whereas the Parliamentary Assembly became a directly elected Parliament. Especially the Commission-Delors contributed to this image.e. every new member has its political sensitivity and agenda.

although ambitious enough. were not prepared to qualify the emerging polity as a fully-fledged federation. the follow-up Treaty of Amsterdam (1997) would reinforce the operational capabilities of the CFSP. The mainly economic orientation of the Communities was enlarged with two new dimensions: foreign policy. From Community to Union The implosion of the Communist regimes in Central. security and justice. Having enshrined in the new Treaty their commitment to an Economic and Monetary Union. and internal security. they insisted on having an intergovernmental conference for shaping a European Union on a broad new basis. Especially the British Conservatives. the heads of state and government were upgrading their low profile political cooperation to the status of a Common Policy and adding a new branch to the tree: cooperation in the fields of Justice and Home Affairs. Initially.5.Chapter 1 2. lead by John Major. the original Six. which might lead to a common defence”. But even apart from the financial-economic dimension. but at least it was a new name. “including the progressive framing of a common defence policy. More important. despite the aim of creating an area of freedom.and Eastern Europe (1989). For the then 12 Member States of the EEC.and Security Policy (CFSP) was mainly of a declaratory nature. followed by the dissolution of the Soviet-Union in 1991. The German reunification had learned how complex and costly the ‘integration’ of a former communist society and economy could be. the Common Foreign. Considering the external challenge to be an unexpected opportunity. than ‘the name of the game’. after having been confronted with the disastrous events in Bosnia. including international security. Gradually. was the significant extension of the policy horizon of the newly created Union. Should the aims and strategies of the Communities not fundamentally be reformulated in view of the oncoming enlargement? This was at least the opinion of the founding fathers. were taking Western Europe by surprise. but of high symbolic significance. exactly as the Ministries of the Interior and 16 . indeed. An enlargement with ‘the other half of Europe’ would be going far beyond the reach of previous experiences such as the accession of Spain and Portugal. ‘Maastricht’ has to be seen as a starting point of an evolution that has been decisive for the all round-character of the Union as a polity. the EU’s backyard. dealing with politics and a wide range of policies. the institutions had not been designed for encompassing pan-European organisation. Calling it a Union was not very much contributing to more clarity. the challenge was immense. It could be expected that not everybody around the table in Maastricht (1991-1992) was as enthusiastic as the Germans and the French in giving the EEC a straightforward political profile. the beginnings were modest too.and police organisation. The judicial. symbolically highlighting the innovative character and the momentum of the Treaty. In the fields of Justice and Home Affairs. including a central bank and a single currency.

we will first highlight the particular position of the European Commission. Finally. i. Despite these appearances. Therefore. a staff of highly qualified civil servants is supporting this College of Commissioners. professional experts. but exclusively serving European interests. but the size of the organisation has been dramatically changed as a result of the enlargement of the Union. before stressing the role of the other core ‘players’: the Parliament. the Council and the Court of Justice. This original philosophy is still valid. Its role is focused on the functions of preparing and proposing policies.e. nominated by their respective governments. Moreover. the Commission (originally the High Authority) is given the task of policy initiation and -implementation. THE MAIN INSTITUTIONS AND ACTORS IN THE EU’S POLICY AND DECISION-MAKING PROCESS The policy-making process in the European Union is extremely complex. In the eyes of the founding fathers. as well as on 17 . but keeping a critical distance to those who appointed them. The EU is not a classical state indeed. However. the number of Member States involved and the specific character of trans-national decision-making. confronted as they were in the nineties with an ‘explosion’ of migratory movements and increasing cross-border criminality. the Commission consisted of a limited group of ‘technocrats’. where policies are decided upon in the dialogue between government and parliament. the institutional framework and the decision-making process were fundamentally reviewed. 3. One could compare these Commissioners to the governor(s) of Central Banks. such as Europol and Eurojust. Every of the 25 (soon 27) Member States is represented in the Commission. The European Commission The profile of the Commission has evolved over the years. the diversity of interests. new arrangements were made and new organisations set up. However.Chapter 1 Justice.Amsterdam (1997) and Nice (2000) . such as the principle of subsidiarity and the notion of citizenship. Divided into directorates-general (DG’s). Since the very beginnings of the European integration process. 3. the decision-making is a collective endeavour. some crucial concepts and principles were introduced. appointed by their governments.are included in the third part of this contribution. their legitimacy arises from the quality of their decisionmaking and from the policies they deliver.1. given the wide variety of policies. were indeed regarded as one of the few bastions still untouched by the europeanisation process. Moreover. a crucial third partner. However. Although not elected. the Commission is not a government in the traditional sense. this bureaucracy is the operational task force of the EU. these achievements of Maastricht and its follow-up treaties .

its powers have been increased at every Treaty reform since the Single European 18 . Next to the regular. In the meantime. Council of Ministers and European Council In contrast to the Commission. The ‘general affairs’ council. as they want to discuss strategic issues and the overall development of the Union. 3. wants to limit the expenditure. the Member States are considered to promote national interests. but can put other accents and. Council meetings at all levels are chaired by a rotating presidency. however. 3. Some ‘specialised’ meetings are equally important: for example the Ministers of Economy and Finance (ECOFIN). the Ministers of Agriculture and Fisheries. on the other hand. formal meetings. he Constitutional Treaty stresses its role and has introduced a permanent presidency for the European Council. the Member States’ governments and the European Parliament are the ultimate decision-makers. Therefore. albeit a crucial one. a Parliamentary Assembly has been functioning right from the beginning of the European integration process. since all basic arrangements are founded on their consensus.3. devoted to ‘European’ interests. responsible for the European Common Foreign and Security Policy. the Council with its numerous working committees and its group of permanent representatives of the Member States (COREPER) is a counterweight to the technocratic power of the Commission. the Council is not per definition the opponent of the Commission or the Parliament. as their meeting is called. mostly in interaction with the European Parliament. In daily practice of policy-making. deals with the general issues. In other words. composed by the Ministers of Foreign Affairs. whereas. In any case. A double ‘emancipation’ took place since the late seventies. the ‘European Council’.Chapter 1 implementing them. Their ‘summit meetings’ have gradually been formalised. if the dynamics of policymaking belong to the profile of the Commission. a kind of supreme decision-making body. Very correctly. Since 1974 the heads of state and government are meeting as well on a regular basis (4 times a year). they are one out of the three major actors. The Ministers are meeting in different settings. The proper decision-making lies with the Member States. the Ministers of Foreign Affairs. The European Parliament As we have seen in the historical overview. The Council of Ministers and the overarching European Council are indeed the supreme representatives of the States the Union is built on. national interests and European interest are in most cases convergent. On the one hand the direct election of the Parliament (1979) contributed to its democratic legitimacy. Actually. informal gatherings are exploring the consensus building regarding the main issues at stake. they are called ‘the masters of the treaties’. especially.2. As a result. becomes an institution of its own.

The European Court of Justice Based in Luxembourg. One should not forget. Budgetary power: the budget of the EU has to be established by the Council and the Parliament. Once a month. in order to leave more room to the ECJ for debating the most significant cases. As in all parliaments. the EP is an equal partner with the Council of Ministers on deciding on a wide range of matters and policies.Chapter 1 Act. a whole ‘jurisprudence’ has developed: a consistent body of European law that complements the Treaties. Ultimately. but as well in interpreting European law in an authoritative way. implying its resignation. ‘national’ judges quite frequently consult the ECJ before delivering their verdict. especially in the social and economic fields. and appointments. two weeks a month. Although the members of European Parliament (MEP’s) are elected via national (or sub-national) constituencies and via a proportional system for a mandate of five years. that the application of the law on a day-to-day basis is primarily a responsibility of national courts and agencies. over cooperation to co-decision). albeit via different procedures according to the matter (from consultation. They encompass the functions of: Control: political discussion and budgetary supervision. the detailed scrutiny of policy proposals and legislative texts are of utmost importance. The competences of the EP can be compared to the ones of all parliaments in democratic political systems. Assent: crucial agreements. whereas commissions. 3.and fraction meetings are being held in Brussels. indeed. The 19 . As a result of the cases brought before the Court in Luxembourg and the interpretation given on the request of national courts. confidence in the European Commission can be withdrawn. such as the acceptance of new Member States. have to be agreed upon by the EP. but its scope of application is gradually enlarging. the political fractions are not nation-based but rather ideology-oriented. such as the president and the members of the European Commission. Today. Procedures were developed for involving the EP significantly in the decisionmaking process. So. Next to the Court of Justice. The best-known example of the impact of the ECJ on the self-understanding of the Union is the principle that European law has precedence (supremacy) over national law. plenary sessions take place in Strasbourg. they don’t primarily represent national interests but the European interest as a whole. Legislation: the EP is involved in elaborating European legislation. This ruling of the Court has finally been integrated as a core principle in the Constitutional Treaty. the ECJ has built up over the years a solid reputation not only in setting legal disputes. Therefore.4. The co-decision procedure has been introduced in Maastricht (1992). a Court of First Instance has been established since 1989.

Quite some executive tasks of the Union have been ‘decentralised’ to agencies or offices. 4. by providing scientific advice. that either have been given a regulatory assignment. Therefore. As we have seen in the historical overview. employers. They are rather focused on the territorial cohesion of policies and on the application of the principle of subsidiarity. in both courts every Member State is represented with a judge. Other institutions and bodies Given the limited scope of this contribution. The Environment Agency in Copenhagen. The Committee of the Regions is more recent (Treaty of Maastricht) and consists of representatives of territorial units: regions and municipalities. Summarising. Therefore. in policy formulation. The European Central Bank. The judgments are delivered by ‘Chambers’. The Scientific Centre in Ispra. based in Frankfurt.5. i. trade unions and professional organisations. the changes of regime in Central. based in Alicante. 3. It’s a crucial actor as well. 20 . we will only briefly mention some other institutions and bodies: The European Court of Auditors. the ECJ is not just formally an institution of the EU. given its constant vigilance in applying the rule of law and its contribution to the formation of a consistent legal framework. commonly called the Treaty of Maastricht (1992) paved the way to both a fundamental revision of the Treaties and the oncoming enlargement of the Union. In this third part of our contribution. Just a couple of examples: The Office for the Harmonisation of the Internal Market. we will mainly highlight those new concepts and principles and link them to the ongoing constitutional debate. some crucial innovations had to be introduced. has full authority over the monetary policy regarding the single currency: the Euro.and Eastern-Europe clearly indicated that the Union would encompass in a foreseeable future the major part of the European continent. controls the expenditure of the EU and reports to the European Parliament. mostly with 3 to 5 judges. Council and Parliament with recommendations regarding most social and economic policies: The Economic and Social Committee (ECOSOC) has a long tradition (Treaty of Rome) of involving the ‘social partners’. Two advisory bodies have been established for providing the Commission. DEEPENING AND WIDENING: THE PROCESS OF CONSTITUTIONALISATION AND ENLARGEMENT The Treaty on the European Union (TEU). or rather a supportive one.Chapter 1 workload is indeed heavy. based in Luxembourg.e.

1. It is obvious that the political principles were formulated in view of the oncoming enlargement. Council and Parliament with a guiding principle for embarking (or not) on new policies. Clearly enough. principles which are in common to the Member States” (art. A transnational community is effectively taking shape. All nationals of the Member States have been given this additional political identity and the rights related to it: the right of moving and residing freely within the Union. democracy. 5). Thus. 7 therefore sanctions any “serious and persistent breach” of this principles. in case the own State is not represented in a third country. A second principle. by reason of the scale or effects of the proposed action. but rather to a common policy space. but in the compliance expected from the (candidate) Member States with the political foundations of the Union. Their application is one of the main conditions for accession. is related to the division of tasks between the Union and its Member States (art. the Community should take action “only if and insofar as the objectives of the proposed action cannot be sufficiently achieved by the Member States and can therefore. 7. The Union is gradually shifting away from technocratic decision-making towards a decisive impact of the directly elected representatives of the citizens. based on definite rights and freedoms. the principle of subsidiarity. 21 . As the Danish public opinion was not too pleased with this double identity. for instance by excluding a state from the decision-making process.Chapter 1 4. although not (yet) in application of the procedure of art. One of the most striking innovations is the introduction of European citizenship (art. However. respect for human rights and fundamental freedoms. In essence. the Treaty has provided the Commission. the so-called Copenhagen Criteria (1993). the right to vote and to be elected at municipal and European level (elections for the European Parliament) in the country of actual residence. 6 and 7 of the TEU Treaty). Such flexibility in interpretation does not refer to a traditional treaty between states. In other words. The last element clearly shows that the innovative character of this provision does not lie in the enumeration of the principles. an ‘opt out’ clause was negotiated and the Amsterdam Treaty (1997) made clear that “citizenship of the Union shall complement and not replace national citizenship”. Innovations since Maastricht We mainly think of five innovations: The political principles are for the first time explicitly mentioned in the treaties: “The Union is founded on the principles of liberty. the EU is seen as a political democracy applying the rule of law and protecting individual and collective rights and freedoms. being a citizen of the EU has more than a symbolic value. The co-decision powers given to the European Parliament in Maastricht can be seen as another breakthrough of political legitimacy. and the rule of law. the right to call for diplomatic and consular protection from any Member State of the Union. rather than by imposing a strictly legal delimitation of the area of involvement of the Union. 17-22). Art. be better achieved by the Community”. in recent years current Member States have been as well under scrutiny.

however. Such scenario thinking. to be continued in 2007 and beyond.2. the provisions on closer cooperation make clear that a scenario has been prepared for the case the integration process gets differentiated (art. one should stress the incapacity of the Member States in defining the essence of their undertaking. Maastricht and its follow-up Treaties – Amsterdam (1997) and Nice (2000) – have indeed laid down the foundations for the constitutionalisation process that characterises the present-day debate. including sooner or later Turkey or even Ukraine. can be determining for the overall image a country gets vis-à-vis the integration process. the still unresolved question of the ‘finalité politique’. Finally. Not because there were any doubts on the democratic character or the economic performance of the United Kingdom. The constitutional debate Fifty years after the Schuman declaration. whereas the others are free to join in a later stage. 43-45). for instance. Governments are changing over time. but affect the historical self-understanding of the project as well. 22 . the accession of the first wave of candidate countries. The debate was more fundamental: is this country prepared to take a loyal and active part in developing the existing project with its integrative dynamics? Or is it mainly interested in joining a successful common market. As we mentioned earlier. goes beyond the aims of this article. a new wave of accessions in 2004. Let’s rather look at the present-day reality in retrospect: which crucial questions that in the past were never given an adequate response. First. 4. An inner circle of countries could take the lead in a particular policy field. and even within those governments individual ministers can have different views and attitudes. A Union with. the position taken by civil society and by the citizens/voters in general. at the beginning of the 21st century. its insertion in the Treaty reveals the political will not to slow down the integration process to the pace of the least committed Member States. are now back on the agenda? We mainly see two of these issues.e. 30 Member States. was highly controversial. of course. No unequivocal mission statement was presented to the candidates before 1993 and the then formulated ‘Copenhagen criteria’ are very much open for interpretation.Chapter 1 Finally. the challenge of enlargement. and. the debate on the very nature of the integration process. and especially of Britain. the Union is confronted with two major challenges: on the one hand. rather than focusing on the questionable loyalty of the newcomers. However. Both issues. with all the economic benefits it expects from an enlarged free trade zone? The question can be raised for most of the subsequent accessions and the answer is not easy at all. are interrelated. would not only fundamentally change the demographic balance. Although this procedure has not been used yet. i. on the other hand.

highlighting the unresolved questions: the delimitation of powers between Union and Member States. the role of national parliaments. open to external competition. the weighting of the votes for decision-making in the Council of Ministers. the interest of the public in EU affairs is decreasing. The European Council expected ‘some suggestions’ from this extraordinary assembly. due to the leadership of the presidium of three ‘wise men’. on which the Member States confer competences to attain objectives they have in common”… Apart from the solemn wording in a treaty qualified as ‘constitutional’. at the European Council meeting of Laeken (Brussels) in December 2001. after a couple of days and nights. For all candidate countries. In fact. including Turkey. an ad hoc assembly of representatives of all political actors involved: the governments. the constitutionalisation of the Treaties can be seen as a historical breakthrough. A reflection round was announced and a more in depth analysis was to be presented one year later. The 13 candidate countries. remarkably enough. i. Some parts of the document. etc. former Italian Prime Minister Amato and former Belgian Prime Minister Dehaene. after some months a convergence of views was emerging and the final result in July 2003 was a draft for a Constitutional Treaty. a declaration was added to the Nice Treaty. especially the second part that incorporates the Charter of fundamental rights and freedoms.e. It is a striking paradox indeed: despite a significant increase of powers for the European Parliament. Undoubtedly. not prematurely conclude that by agreeing on a constitutional treaty the EU has come to full clarification on its state character. 105 participants in total. Full acceptance of the ‘acquis communautaire’. including Bulgaria and Romania whose accessions are foreseen in 2007. were invited to take part as observers. illustrating once more the inconsistency of views among European leaders. in general. not too much 23 . came with more questions than answers. including minority rights. Despite the apparent success of the meeting.Chapter 1 Mainly three conditions have been put forward: Stability of the democratic institutions. the increasing ‘democratic deficit’. etc. former French president Giscard d’Estaing. A functioning market economy. the European parliament. the participation of the electorate and. the Commission. At the Nice Summit (December 2000). application of the fundamental political principles. Therefore they were taking the initiative of transferring this difficult dossier to a Convention. however. all details were agreed upon: the number of seats in Parliament. The Belgian presidency. this Constitution establishes the European Union. Art. however. Disagreement on the existence of a political character of the Union seems no longer possible. 1 of the Constitution on the ‘Establishment of the Union’ is formulated as follows: “Reflecting the will of the citizens and States of Europe to build a common future. and. more in general. The legitimacy of the Union can be seen as the second present-day challenge. an agreement was reached on the figures. are stressing the classical constitutional status of this basic charter.. not on the content of the functioning of an enlarged EU. the national parliaments. One should.

without wanting to underestimate the serious consequences of this rejection of the Constitutional Treaty for the day-to-day function of the European Union. Two weeks after the failed referenda on the EU Constitution in France and the Netherlands. Those countries were the UK. and finally. Spain. social partners. a number of countries initially indicated that they would hold a referendum on the constitution. Latvia. Poland Czech Republic. Luxembourg voters approved the treaty in a consultative referendum on 28 June 2005 with a ‘yes’ vote of 56. it would be exaggerated to consider this event as a political implosion of the Union. Besides that. it would be inappropriate to interpret the French and Dutch rejection of the Constitutional Treaty as an overall rejection of the European Union. There is a long way to go before all Member States will fully share their understanding of “an ever closer Union”. Spanish voters approved the treaty in a consultative referendum on 20 February 2005. Luxembourg. Lithuania. Italy.6%. with 61. It has never been a steady road in the direction of an “ever closer union”. French voters rejected the terms of the treaty with a ‘no’ vote of 55. national parliaments and political parties. Slovenia and Spain. This Constitutional Treaty has been under the scrutiny of an Intergovernmental Conference. The decision was put to a Parliamentary vote and passed by Parliament on 19 May.5%. Hungary. the EU summit on 16 and 17 June 2005 decided to put the document’s ratification process on hold. Portugal.8% of the turnout voting against the treaty. To date. civil society. Cyprus. As this historical overview aimed to prove. Slovakia. Luxembourg. Greece. 24 . Ireland. In principle. the Member States have two years to ratify the treaty with the ratification process differing from Member State to Member State depending upon whether direct democracy (via a popular referendum) or parliamentary democracy is favoured. A period of reflection and consultation was launched. Denmark. involving citizens. Dutch voters followed suit in a consultative vote on 1 June. The Constitution can take effect only if all 25 Member States ratify it either in a parliamentary vote or by referendum. While most countries announced that the ratification of the treaty would come through a parliamentary process.Chapter 1 progress has been made in terms of self-definition. During this period an intensified and broadened debate should take place in each of the Member States. France and the Netherlands. However. Germany. the process of European integration has always been a process of ups and downs. was signed on 29 October 2004. Malta. The French and Dutch “no” caused a wave of euro-pessimism inside the Union. thirteen nations have ratified the document: Austria. In a referendum held on 29 May.

int/comm/enlargement/ – History of European Integration (Leiden University.int – Enafree.enafree.htm – Institutions of the European Union: http://europa.eu. DG Enlargement: http://europa.lu/en/ 25 .int/eur-lex/lex/en/treaties/index.eu.htm – The Future of the European Union – debate: http://europa. Netherlands): http://www.htm – European Commission.int/institutions/index_en.nl/ – European Convention: http://european-convention.eu-history.eu.eu.leidenuniv.int/constitution/futurum/index_en.eu.Chapter 1 Relevant official documents and information can be found at the following websites: – Main treaties of the European Union (Eur-lex): http://europa. Multimedia Documents on the process of European integration: http://www.

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Faculty of Social Sciences. These communities became known as the European Community (EC) and were associated with the ‘first pillar’.D. Secondly. the European Atomic Energy Community (EURATOM) and the European Economic Community (EEC). even though the general goal is to reach agreement in negotiations. interests and ideas that characterise the evolution of the European integration. but within a single European institutional framework. when the EU has been set up by the Treaty on European Union (TEU) in 1992. Belgium. In these domains most decisions are made by qualified majority voting (QMV) within the Council.Chapter 2 CHAPTER 2 EUROPEAN UNION’S POLICIES Laurent Van Depoele* Ana Maria Dobre* 1. Faculty of Social Sciences. Institute for International and European Policy. EURATOM. The ‘Community method’. The EU is constructed out of three originally disconnected Communities: the European Coal and Steel Community (ECSC). Department of Political Science. Department of Political Science. 27 . Candidate. another important aspect is that the EU has been active in a series of policy fields which have produced several ‘working methods’ such as the ‘Community method’. From the outset some aspects need to be clear. First. Cooperation under the ‘second’ and ‘third pillars’ is ‘intergovernmental’. INTRODUCTION An overview of the EU policies represents an attempt to display the most important historical trends. The first pillar implies supranational cooperation and consists of the sets of rules of the original forms of economic cooperation (the former European Communities (EEC. which means that cooperation between Member States is taking place according to classic international law. The pillar structure is eliminated in the Treaty establishing a Constitution for Europe. The ‘first pillar’ is complemented by other pillars of organised cooperation: The Common Foreign and Security Policy (the ‘Second Pillar’) and Justice and Home Affairs (the ‘Third Pillar’). Institute for International and European Policy. which is still in the process of ratification. the ‘intergovernmental method’ and the ‘open-method of coordination’ (OMC). Belgium. * Ph. University of Leuven. and ECSC)) including an Economic and Monetary Union (EMU). University of Leuven. which is a reaction to the intergovernmental diplomacy in * Professor.

In this context. Currently. One example is the Convention for the drafting of the Treaty establishing the EU Constitution. a unique kind of polity which proposes a multi-level approach to governance. The ‘open-method of coordination’ (OMC) has no constraining legal aspects like the ‘Community method’. Thirdly. social inclusion. The translation of the guidelines into national and regional policies. which has the exclusive right of initiative. In addition. education/training and youth policy. which has the power to fine Member States in breach of their legal obligations under the EU law and which assures that EU law is observed in a uniform manner in the interpretation of the Treaties.Chapter 2 Europe before and immediately after World War II and is based on the following institutional structure: The Council of the EU takes decisions on the basis of proposals from the Commission. numerous national. Furthermore EU law has precedence over national law and cannot be undone by national legislation. regional or local actors from the Member States developed their activity in the EU arena. In a growing number of cases. the EU is one of the most interesting modern projects of state cooperation. the consultation process was opened to all representatives 28 . eradication of poverty and improvement of the employment situation. This method. which may be referred to as ‘soft law’. involving not only nation-states. for example in the context of the Lisbon Strategy (2000). evaluation and peer review at EU level. which evolved over time into more than just a simple arena of intergovernmental negotiations. The EU today is known as a sui generis type of international organisation. The periodic monitoring. The supranational institutions such as the EP or the ECJ have a considerably reduced role within the ‘intergovernmental method’. the OMC is used in policy fields such as: employment. involves the following steps: The fixing of guidelines for the EU. It is a voluntary process where all Member States decide by consensus to define a number of policy objectives. but also supranational and sub-national authorities. The OMC is not based on legal instruments and introduced legislation. pensions. by a Community Action Programme (2002-2006) aimed to encourage cooperation in areas such as fighting social exclusion. The ‘intergovernmental method’ implies that cooperation takes place outside the ‘Community method’ and on the basis of collaboration between individual member countries. the Council decides in codecision with the EP. They are consulted by the EU institutions in the process of decision-making and also in the process of reflection on the EU development. after discussion within the European Parliament (EP) and other bodies. it is supported. Member States keep entirely the attributes of their national sovereignty and therefore keep their veto power since all decisions are taken by unanimity. under the ‘Community method’ decisions are taken in the Council by QMV. Even though unanimity is still present. The establishment of quantitative and qualitative indicators and benchmarks. health care. Another important institution within the ‘Community method’ is the European Court of Justice (ECJ). which means that a decision can enter into force without the support of all Member States.

Social and Employment Policy. the following policy areas are to be mentioned: Internal market. Common Agriculture Policy. Environment. security and justice. In the case of shared EU/Member States’ competences. We have to point out that EU competences may be different from one policy area to another. Energy. Fisheries conservation policy. I-12 to I–18). Competition rules. according to the Treaty establishing the EU Constitution the EU may legislate and adopt legally binding acts. Common commercial policy. 1980s and 1990s. Monetary policy in Euroland. Freedom. The Treaty establishing the EU Constitution gives a classification of EU competences (Art. according to the Treaty establishing the EU Constitution. Environmental Policy. this classification has already been established in the past by ECJ judgements in the 1970s.Chapter 2 of organised civil society or other type of aggregated interests such as industry and labour associations. Justice and Home Affairs. while focussing on the impressive diversity and intricacy of the policy fields under study: Internal market. No harmonisation measures can be adopted in these fields. Common Foreign and Security Policy and External Trade and Development Policy. In these areas. Tourism. Culture. Finally. Cohesion and Regional Development Policy. the following policy areas are to be mentioned: Customs union. coordinating or complementary actions in areas such as: Industry. Social policy. Education etc. we will portray to what extent the EU policies reflect coherent paths of development. the EU has the competence to carry out supporting. Agriculture and fisheries. Transport. Economic and Monetary Union. 29 . In the case of exclusive EU competences. In the following lines.

Contributions based on value added tax (VAT). GNP= The total market value of goods and services produced during a given period by labor and capital supplied by residents of a country. The expenditure of the budget is divided into two categories. GDP is divided into four categories: (1) consumer spending. The second is called “non-compulsory expenditure” and concerns expenses covering structural funds or administrative costs.1. is a source of both. The aim was to increase the Community’s financial independence from Member States’ transfers. Revenue and expenditure must be in equilibrium. 30 . Tensions were clearly illustrated again during the European Council of 16 and 17 June 2005 in Brussels when dealing with the financial perspectives 2007-2013. The Composition of the Budget: Expenditures From 1958 to 1970 the Community budget was financed exclusively by contributions from the Member States. The financing of the EU. Other revenue is derived from surpluses from previous budget years and contributions from European Economic Area (EEA) countries. which are based on a forecast of each Member State’s GNP1.Chapter 2 2. regardless of where the labor and capital are located. solidarity and tensions between the Member States. (2) business and real estate investment. which are calculated on the VAT base of each Member State. 1 GDP: the total market values of goods and services produced inside an economy during a given period of time. consists of four elements: Agricultural levies charged on the import of agricultural products from third countries. which is the direct result of EU regulations for example and contributions to the Common Agricultural Policy. Unforeseen expenditure which appears during the budget year must be financed by an additional or amending budget. and Gross national product (GNP)-related contributions. Customs duties. GNP differs from GDP primarily by including the capital income that residents earn from investments abroad and excluding the capital income that nonresidents earn from domestic investment. THE BUDGET OF THE EU The budget. which are levied on products from third countries. which means that no budget deficit is allowed. 2. The first is “compulsory expenditure”. the Luxembourg European Council launched for the first time a system of own resources for the general budget of the Community.e. (3) government spending and (4) trade deficit. which started functioning in 1971. without which the EU would be unable to function. i. its ”own resources”. In 1970.

2. one for the first pillar which is called the European Agricultural Guarantee Fund (EAGF) and one for the second pillar which is called the European Agricultural Fund for Rural Development (EAFRD). the environment. which means that all the EU’s revenue and expenditure must be brought together in a single document. education. sparsely populated areas or measures to fight unemployment. Thirdly. The payment appropriations cover expenditure. translations. Are also financed export subsidies for agricultural products to countries outside the EU and measures for developing rural areas. the internal market. the principle of equilibrium requires that expenditure must not exceed revenue estimated for a financial year. The third heading is internal policies such as investments in research and technical development. Expenditures under this heading finance on the one hand the market related measures such as the domestic support. The second expenditure heading is related to various types of structural operations. Appropriations of the Administration of the EU institutions represent the fifth heading. up to the amount entered in the budget. industry and trans-European networks.Chapter 2 2. No funds may be borrowed to cover a budget deficit. supporting for example the underdeveloped regions of Europe. The Principles of the EU Budget The EU budget is governed by several principles such as the principle of unity. information society. energy.2. the principle of annuality implies that budget operations relate to a given budget year. The agricultural Council of 30 May 2005 reached an agreement on the establishment of two funds. These include salary and pension contributions for employees. social issues. Commitment appropriations refer to the total cost in the financial year of operations to be performed. Secondly. culture. 31 .3. as well as developing countries in Latin America. and the direct payments to farmers (the first pillar of the CAP) at 100% and on the other hand the measures related to rural development (second pillar of the CAP) on the basis of co-financing. areas affected by industrial decline. The money is also used for humanitarian aid and initiatives in support of democratic development and respect for human rights. resulting from the commitments entered into during the financial year and/or previous financial years. the export subsidies. consumer protection. The fourth expenditure heading is destined to external action including cooperation with countries around the Mediterranean sea. construction and maintenance of buildings and costs for external and internal EU offices. in Central and Eastern Europe. The Expenditures Headings – The Budget Items The EU budget is divided into seven expenditure headings: The Common Agricultural Policy (CAP) is the largest budget item (approximately 45 % of the total budget). Africa and the Middle East. Asia.

In 2003 the GNI per capita in the UK stood at 111. France and the United Kingdom. arguing for budget austerity and changes to the system of burden-sharing.24% of the GNI of the EU (without taking into account the European Development Fund). agriculture then accounted for more than 70% of the outlays while the agricultural sector in the UK was much less extensive than on the continent. Political Implications of the EU Budget Budgetary politics in the EU is marked not only by constant negotiations between the institutions. is according to Commission. as well as to most other Member States.Chapter 2 The sixth heading is related to the reserves which may only be used in special contexts and for special needs for example. the European Council agreed in 1988 to fix a financial perspective which is a long term spending plan which sets the frame in which the annual budget has to be integrated. The issue of fair and just treatment of Member States in the EU budget is not new. but also between Member States. known as the ‘rebate system’. In order to reduce disputes over each annual budget. The clear cleavage over time is the one between net contributors and net beneficiaries. 1993-1999 and 2000-2006. The question of budget negotiations for establishing the budgetary frameworks is therefore very important in understanding how the EU functions and how the Member States position themselves in this supranational arena. Under the EU budget. They usually ask for the reduction of budgetary imbalances. no longer justifiable. if left uncorrected. as from 1981. Pre-accession aid represents the seventh expenditure heading and consists amongst others of agricultural and structural support for applicant states (costs for the PHARE programme. Another argument was related to the agriculture issue. Former UK Prime Minister Thatcher started already in the early 80’s to claim “her money back”. Such future increase in the rebate. Reaching therefore unanimous agreement amongst the Member States about the budget is a laborious process. The principle underlying this mechanism consisted in reimbursing to the UK 66% of its net VAT contribution to the EU budget. 2. the main beneficiaries of the EU budget are particularly the Mediterranean states and Ireland. in case of disaster assistance. Sweden. and. Such financial perspectives have been fixed by the European Council for the periods 1988-1992.1 billion euros per year in 2007-2013 compared with 4. SAPARD). Net contributor means that a country is sending more to the EU budget than it is getting back through the process of redistribution.2% of the EU average. the UK also had the largest share in the harmonised VAT base.7 billion in 1997-2003. of Greece. the UK rebate would reach substantial amounts in the years ahead: 7. ISPA. She succeeded to convince the European Council in Fontainebleau in June 1984 to introduce a ‘correction mechanism’. For the latter period the maximum possible expenditures of the EU budget was fixed at 1. Austria. Among the net contributors we can count Germany. In the enlarged EU. the Netherlands. with the exception of Ireland.4. The arguments in favour at that time were that the UK had the lowest income per capita amongst the then Member States. On the other side. In February 2004 the European 32 .

The Council of Ministers reviews the budget proposal and then submits it to the EP. The figures of the proposal are planned on the basis of calculations or estimates of the needs of the EU and the common institutions as well as anticipated revenues and economic projections for the future years to come. During the latest European Council meeting in Brussels (16/17 June 2005) no agreement was reached on these financial perspectives. The customs union and the free movement of goods.5. The EU budget is managed by the Commission which has to follow the rules laid down in the financial regulations. on a yearly basis. the Commission proposed a ceiling at a very modest level of 1.06%. The ceiling was not the only point of discontent but equally the UK rebate and the CAP expenditures. In a common market national markets could function without any borders and impediments to economic expansion. 2. The common market in the early days of the EEC covered the following areas: the free 33 . the Commission took note of the position of the six above-mentioned net contributors to the budget according to which they were not prepared to go beyond 1% of the GNI of the EU. The signatories of the Treaty aimed at the elimination of trade barriers between the 6 Member States at that time in order to enhance economic prosperity and further advance towards ”an ever closer union among the peoples of Europe”. the European Commission presents a draft budget for the following year to the Council of Ministers. 3. The Budget Procedure As for the budget procedure.Chapter 2 Commission proposed the financial perspectives for the period 2007-2013 taking into account all expenditures for the EU of 27 Member States. It can decide on changes to certain types of expenditure (the “non-compulsory” expenditures) and propose changes to the Council of Ministers on the “compulsory” expenditures. Accordingly. The EP has different ways of responding. The EP may also reject the entire budget proposal and demand that the Commission presents a new proposal. The European Court of Auditors has the task of monitoring how the EU’s funds are used. THE COMMON MARKET When the EC was created. which are those following treaty obligations. The annual report of the Court of Auditors as well as the accounts and financial statements are examined by the European Parliament before giving discharge to the Commission. persons and capital between the Member States stayed therefore at the basis of the EU common market. one of its main objectives was to support economic development and guarantee prosperity in Europe. The common market was established through the European Economic Community (EEC) Treaty which came into force in 1958. It is the EP which finally decides and adopts the budget in its entirety.14%. In this context. services. although the Luxemburg Presidency presented a compromise proposal at 1. both within the EU institutions and in Member States. This failure illustrates once again the complexity of the budgetary discussions.

despite these achievements. the restricting features that needed to be changed in order to allow the single market to function properly were of three types: Physical barriers at the borders between Member States such as customs and police controls. In practical terms. However. The Single European Act. a Common Agricultural and Fisheries Policies and a Common Transport Policy. after enlargement. The elimination of delivery times and reduction of costs due to the absence of border bureaucracy and to the existence of the mutual recognition principle. the challenge will be to ensure the effective operation of the Internal Market and to remove existing barriers and prevent the emergence of new barriers in a EU of 25 and soon 27 Member States. According to the original plan. which meant that it finally became easier to carry out the programme of proposals presented in the White Paper and thus enabled the EEC to accomplish the single market according to the fixed time schedule. the deadline for establishing a common market was set up by the end of 1969.htm 34 . Nevertheless. Cheaper prices for goods. Technical barriers such as national rules for products and standards on goods. and Fiscal barriers between Member States such as taxation in the form of excise duties and value-added tax on goods and services. The second challenge is to meet the 2 See document on: http://europa. According to the evaluation of the Commission. under the charismatic guidance of Jacques Delors. a Common Competition Policy. Lower telecommunications tariffs. to draw up in 1985 a White Paper outlining concrete action for the completion of the “Internal Market”. a customs union and a Common Commercial Policy.int/comm/internal_market/10years/workingdoc_en. The White Paper contained a detailed programme of almost 300 legislative proposals aimed at removing all remaining border barriers between the Member States. services.Chapter 2 movement of goods.eighteen months ahead of schedule. in May 2004. the partially attained goal in this area led the European Commission. The Commission highlighted different categories of achievements and benefits: Creation of about 2. A wider choice of high quality goods and services.5 million jobs in the EU since 1992. The customs duties and tariffs were abolished within the EEC in July 1968 . which came into force on 1 July 1987 introduced changes to the decision-making process and introduced the usage of QMV in the Council. after ten years of functioning the Internal Market has reached important achievements but is facing still numerous challenges2. According to the White Paper. the Internal Market is not ‘completed’ and has to cope with the latest developments and challenges ahead. persons and capital. It was agreed that all legislative proposals of the White Paper should be implemented by the end of 1992 so that the Internal Market could be ‘completed’ by 1 January 1993.eu.

Environmental damage: price support encouraged intensification with high use of chemical inputs and destruction of wildlife habitats. consumer food safety (mad cow disease). the result of decisions taken in the field of the CAP reflects the work of three main EU institutions: the Council of the European Union. which became the symbol of intensified European integration and transfer of national prerogatives to the supranational European level. at the beginning of the EEC. one can mention the Mansholt Plan. the EU created an ample system of price guarantees and other subsidies to farmers. In this 35 . wine lakes etc). In general. the 1980s Reforms. The high costs and problems of overproduction have called for reforms of the CAP.Chapter 2 Lisbon target of becoming the “most competitive and dynamic knowledge-based economy in the world by 2010”. Stabilise prices. the CAP was and is still now constrained by trade rules and by the pressures to cut EU price support and export subsidies) and also linked to the enlargement to the Central and Eastern European countries. Initially. Taxpayer burden. Among the successive reforms. Guarantee regular supplies. the GATT trade negotiations such as the Uruguay Round from 1986-1995. The need to make adjustments slowly. Internal trade relations. 4.g. In order to achieve these objectives. Some farm incomes unsatisfactory. the European Parliament and the European Commission. COMMON AGRICULTURAL POLICY The Common Agricultural Policy (CAP) generated the so-called ‘community method of policy-making’. Ensure reasonable supplies to consumers. The pressures for further reform were equally of external nature (e. The proper functioning of the institutional triangle and the will and interests of the Member States are at the origin of the development of this policy field. The problems of the (unreformed) CAP became obvious over time: Surpluses (butter mountains. with an important role for supranational institutions such as the European Commission. the aims of the CAP were to: Increase agriculture productivity. Ensure thereby a fair standard of living for the agricultural population. The CAP was built to take account of: The special character of agriculture. the Agenda 2000 and the Fischler Reform3.: The importance of agriculture in the economy. the 1992 MacSharry Reform.

On 26 June 2003. Partnership: This principle assures the involvement of the regions. Promoting good practice in regional development. independent from production. Other aspects are the increase of funding for the rural development policy.Chapter 2 context of internal and external contestations of the CAP system.htm 36 . This payment is linked to the respect of the environment. see http://europa. Give farmers compensation for loss of income (direct income support). animal and plant health and animal welfare standards. REGIONAL POLICY 5.2. food safety. not just national governments in formulating and implementing structural policy. 5.1. the reduction in direct payments. Supporting/compensating for other EU policies. and important revisions to the market policy of the CAP through price cuts in different sectors. The aims of EU regional policy are: Reducing regional disparities. Promoting good governance. Programming: The accent is put on planning and continuity rather than on ad hoc activities. 3 For an overview of reforms. The Aims ‘Economic and social cohesion’ was first introduced in the treaties with the Single European Act in 1986. Convergence between Member States. The Principles The 1988 Reforms are important for the evolution of this policy field because it is at that time that the core policy principles were introduced: Additionality: Structural Funds must add to. not substitute Member States’ public expenditures. The key elements refer to a single farm payment for EU farmers. the introduction of a mechanism for financial discipline to ensure that the farm budget fixed until 2013 is not exceeded.int/scadplus/leg/en/s04002. the Fischler Reforms proposed to: Cut further the intervention prices.eu. EU farm ministers adopted the Fischler CAP reform. 5. Concentration: The EU financial resources in structural funds concentrate on a few major priority Objectives.

which were laid down in its draft Regulation for Structural Funds Policy 2007-2013. However. The Cohesion Fund. Another category is represented by the Pre-accession instruments.4. Third objective: European Territorial co-operation (interregional co-operation. Second objective: Regional competitiveness and employment (current objectives 2. statistical effect regions: less than 75% of EU 15 GDP/head but more than 75% of EU 25). it might be difficult to prepare such documents without knowing the financial envelope for cohesion policy which is of course part of the financial perspectives 2007-2013. external cross-border co-operation). 37 . as follows: First objective: Convergence and competitiveness (including regions less than 75% of EU 25 average GDP/head. 3). Ireland and Portugal). Objective 3 assists in adapting and modernising education and training systems. there were 6 main Objectives. Greece. The Objectives Until 1999.Chapter 2 5.3. but they were reduced to three: Objective 1 redevelops regions with GDP of less than 75% of the EU average. The European Agricultural Guidance and Guarantee Fund and the Financial Instrument for Fisheries Guidance. They consist of three funds: The Instrument for Structural Policies for Pre-Accession (ISPA). This proposal should in principle be adopted around mid 2005 in order to leave sufficient time to the Member States to prepare the programming documents during 2006 so that they could be implemented as from 1 January 2007. The Cohesion fund is a special solidarity fund which helps to finance projects for the environment and transport networks in those countries in which the GDP is below 90% of the EU average (as regards the former EU-15 this concerned: Spain. which are aimed at helping the future Member States to prepare for membership. Objective 2 assists regions affected by industrial decline and the redevelopment of rural areas. The European Commission’s Third Cohesion Report of February 2004 proposed a new reformulation of the Objectives for the period 2007-2013. The European Social Fund. The Instruments: The Structural Funds The instruments of the Community in the sphere of economic and social cohesion are represented by: The European Regional Development Fund. 5.

And the Treaty of Amsterdam in 1997 extended QMV and introduced the co-decision procedure enlarging considerably the scope of the EU in the decision-making of environmental issues. The Treaty of Maastricht in 1992 introduced QMV in the Council of Ministers and the cooperation procedure (with the EP). The Instruments As regards the instruments. In the Single European Act in 1986.2. through the Treaty of Amsterdam. PHARE.Chapter 2 The Special Accession Programme for Agricultural and Rural Development (SAPARD). The main steps of this evolution and recognition of the importance of environmental policy at the EU level came about with the occasion of a series of treaty changes. 6. 38 . 5. on a proposal of the European Commission. from 1 January 2007. Denmark and the Netherlands. Additionally. We remark therefore the gradual ‘communitarisation’ (extension of the ‘Community method’) to environmental policy. compared to the economic and market oriented policies. The Treaty of Nice changed this decision-making procedure. with the remark that QMV is not the rule of game.5. In terms of decision making (art.1. 6. this preoccupation has emerged rather late. ENVIRONMENTAL POLICY 6. the Council will act by QMV in matters relating to the Structural Funds and the Cohesion Fund. the protection of environment became one of the principles of the EU as stated in Article 2 TEC and in a general horizontal clause in Article 6 TEC. Accordingly. but. which was at the beginning a purely intergovernmental type of cooperation between the Member States. the cooperation on environmental issues was not a Community concern and the advancements in the field were due to the important leadership role of the ‘green’ states: Germany. the environmental policy was finally given a legal basis. the Council acts by unanimity after obtaining the assent of the EP in order to determine the functioning aspects relating to both the Structural Funds and the Cohesion fund. In the 1950s and 1960s. which refers to the legislative framework on environmental protection (EU directives and regulations in the field of environment). we can quote: The so-called ‘Control and Command Approach’. 161 TEC). The Actors and Decision-Making The ‘Community method’ applies in this policy field. History and Decision-Making The protection of the environment is now a major concern at EU level.

the Sixth Action Programme for the Environment sets out the priorities for the European Community up to 2010. voluntary agreements and variants of ecotaxes4. “Environmental Policy: Economic Constraints and External Pressures”. 39 . 6. For illustration. in Helen Wallace and William Wallace (eds. Europe’s environment: the third assessment. In this field the EU is working essentially with framework directives which have to be translated into national legislation by the Member States.htm 6 See for instance European Environment Agency. 5 LIFE website: http://europa. They only set up frameworks and priorities for future actions in the Member States in the field of environment. in Copenhagen. which consists of nine leading environmental non-governmental organisations (NGOs) active at EU level: BirdLife International. pp. Oxford: Oxford University Press. EPHA Environment Network (EEN). environment and health and the management of natural resources and waste. which is a key player at the level of policy-formulation. European Federation for Transport 4 See more explanations in Alberta Sbragia. Copenhagen 2003. The Götheborg European Council (June 2001) approved the European Strategy for sustainable development which refers to coordinated development of common policies and a set of headline objectives to limit climate change and increase clean energy.int.eea. Another important actor is the European Environmental Agency.3. the EP’s Environment Committee and the ECJ.Chapter 2 The ‘symbolic and informal policy instruments’: The Community Action Programmes on the Environment.). eco-audits (environmental management system). The new instruments and modes of policy-making: eco-labels. Policy-Making in the European Union (fourth Edition). Luxembourg: Office for Official Publications of the European Communities. which is an instrument financing projects designed to promote the development and implementation of the EU’s environmental policy5. These action programmes have a less restraining legal value. The traditional legally binding method through the adoption of EU regulations and directives proved to be inefficient in the area of environment. European Environment Bureau (EEB). nature and biodiversity. http://www.eu. Another instrument has to be mentioned: LIFE. And finally. the actors’ arena is completed by the presence of very active environmental groups. These groups form ‘the Green 9’. Four areas are emphasised: climate change. 2000. which was set up to gather and disseminate comparable environmental data from the Member States. Other actors are the Council. This means that the Commission has the right of initiative and can thus propose legislation. Its role is advisory but its work conclusions helped in the adoption of new measures and for assessing the impact of these decisions6. 293-316. These Action Programmes started to be introduced in 1990s as a solution for the numerous blockages in the field. Climate Action Network Europe (CAN-Europe).int/comm/environment/life/news/index. The Actors One of the main actors in this field at the EU level is the European Commission.eu. but not lastly.

8 The Timetable for the EMU: March 1998: The Commission decided which countries fulfil the Maastricht criteria (Greece did not but joined in 2001. which pushed for further convergence between European economies. which provides for measures and commitments to reduce greenhouse gas emissions. ECONOMIC AND MONETARY POLICY 7. its Montreal Protocol on Substances which Deplete the Ozone Layer [Official Journal L 297.5% above average of the best 3.1988]. Long-term interest rate: not more than 2% points above average of best 3. Exchange rate: no devaluation within the Exchange Rate Mechanism (ERM) for two or more years. January 2002: National notes and coins are replaced with Euros.25% and 6%). the Community has also signed the Kyoto Protocol. Greenpeace. In the Maastricht Treaty several criteria are mentioned which a Member State has to fulfil in order to qualify for the EMU (the so-called ‘Maastricht convergence criteria’): Inflation rate: not more than 1. 7 Among the global Conventions are the Vienna Convention for the Protection of the Ozone Layer [Official Journal L 297. and more recently. Friends of the Earth Europe (FoEE). the system proved to have numerous weak points aggravated by the instability of the US dollar. Nevertheless. This plan was later enshrined in the Maastricht Treaty signed in February 1992. at the Madrid European Council. 31. 7. May 1998: The Council confirms 11 initial members of the EMU. International Friends of Nature (IFN) and World Wide Fund European Policy Office (WWF-EPO).1988]. The necessity to have a stable monetary area in the context of the completion of the single market was reflected in the successive treaty reforms such as the Single European Act.10. January 1999: The Euro is introduced for accounting. 40 . Historical Evolution The idea of convergence between the economies and currencies of the Member States came more and more under discussion since the creation of the EEC and in 1970 the Werner Report concretely proposed a scheme. one of the objectives of EU policy on the environment is to promote measures at international level to deal with regional or global environmental problems.Chapter 2 and Environment (T&E). according to the EU Treaty. 31.10. 7. Commission President Jacques Delors presented a plan and a timetable for the creation of an Economic and Monetary Union (EMU)8.2.1994] and the Aarhus Convention on Access to Information and Justice. The Community has been a party to international conventions on environmental conservation since the 1970s7. Sweden expressed reserves. in June 1989. Following the same line of evolution. which led to the set up of the European Monetary System (EMS) in March 1979. In terms of international cooperation.1. The EMS was intended to decrease the disparities in the exchange rates between the currencies of the Member States (the system allowed fluctuation margins between 2. Denmark and the UK exercise opt-outs). the UN Conventions on Biological Diversity and on Climate Change [Official Journal L 33.

known as the Stability and Growth Pact (SGP).Chapter 2 Annual budget deficit: less than 3% GDP. they are. In 2004. Public debt not more than 60% GDP. Case C-27/04. the Commission took the Council to the ECJ on procedural grounds after the latter failed to take measures against France and Germany for constant defiance of the pact’s rules9. when a new resolution was adopted on coordinating economic policies. a joint control of money supply and joint control of the exchange rate. As regards the new Member States. in June 1997 was an important moment. Currently. A unified monetary policy with a single interest rate. EU finance ministers found a compromise on reforms to the SGP at an extraordinary meeting before the EU summit of heads of state and government on 22 and 23 March 2005. Coordinated tax policies. attempting to join the Euro zone and are making huge efforts to meet the rules of the SGP. the SGP is emerging from an important crisis. The second resolution on economic growth emphasised the preoccupations of the heads of state and government for the improvement of the employment situation in the EU. the reform consists in the fact that France and Germany have won concessions making the rules of pact more ‘flexible’. These steps reflect the determination at the level of the EU and its Member States to push beyond a monetary union and to include a closer cooperation in additional aspects related to budgetary. Free movement of capital. The creation of a common institutional frame such as the European Central Bank. 41 . social and fiscal policies. In this context of tension over the rules of the pact. at the present. the European Council of Amsterdam. The same trend was seen during the Luxembourg European Council in December 1997. In terms of historical evolution. The EMU involves: A single currency (the Euro) which replaces national currencies and fixes a single exchange rate with other currencies for instance the US dollar. In essence. is a political agreement laying down the rules for the budgetary behaviour of the Member States (no excessive budget deficits). Two important resolutions were adopted: The first. 9 ECJ Judgment of 13 July 2004.

The fact that Member States keep having a veto power able to block the adoption of legislative measures explains the slow development of Social Policy at EU level. Unanimity within the Council is however required for the adoption of legislative measures in the following areas: Social security and social protection.1. The recognition of the importance of social affairs came with the successive treaty revisions. Modernisation of social protection systems. The integration of persons excluded from the labour market. Protection of workers when their contract is terminated.2. Historical Evolution of Social Policy Social policy was not one of the major preoccupations of the founding Member States. codecision with the EP and consultation with the Economic and Social Committee and the Committee of the Regions. In this context. Conditions of employment of third-country citizens. The general principle of decision-making in the area of Social Policy is QMV in the Council.Articles 39 to 42 EC Treaty). a ‘passerelle-clause’ was introduced by the Treaty of Nice in an attempt to make progress in this field (article 137. SOCIAL AND EMPLOYMENT POLICIES 8. Protection of workers when their contract is terminated. Conditions of employment for third-country nationals.Chapter 2 8. the Council can decide by unanimity that in the future decisions on Social Policy issues will 42 . Equality between men and women with regard to labour market opportunities and treatment at work. Representation and collective defence of the interests of workers. Social security and social protection of workers. The Protocol was fully incorporated into the Treaty with the Treaty of Amsterdam in 1997. especially with the Treaty of Maastricht. The information and consultation of workers. Actors and Decision-Making of Social Policy Social Policy has elements of both ‘Community’ and ‘intergovernmental’ methods. Working conditions. Combating of social exclusions. the EC can act to reach the objectives of social policy in the following fields: Workers’ health and safety. The Treaty of Rome from 1957 only contained a few articles on issues linked to social policy (especially the free movement of workers . Accordingly. which strengthened the legal basis of social policy and the adoption of the Protocol on Social Policy annexed to the Treaty. 8. Representation and collective defence of the interests of the workers. According to this clause. paragraph 2 TEC).

3.int/growthandjobs/group/index_en. it has an independent stand. the provisions on the Social Policy remain practically unchanged. In the 1990s the ‘Open method of Coordination’ (OMC) was put forward as an answer to slow progresses achieved as regards Social Policy developments. the OMC was called into question by the Lisbon Strategy Review10. country-specific recommendations on the basis of proposals from the Commission. which initiated the European Employment Strategy (EES). The next step was the organisation of the Luxembourg Jobs Summit (November 1997).htm 43 . The most important criticism was related to its low effectiveness in obtaining common European objectives through Member States implementation of agreed commitments. capable of sustainable economic growth with more and better jobs and greater social cohesion”. Recommendations: The Council may issue. In spite of all these high expectations in this domain.Chapter 2 be taken by QMV (except for the field of social protection and social security). The EES is organised around the following components: The Employment Guidelines: the European Council agrees on an yearly basis on a series of guidelines setting out common priorities for Member States’ employment policies following a proposal from the Commission. which set a new strategic goal for the EU for the next decade: “to become the most competitive and dynamic knowledge-based economy in the world. 10 11See See details on the review of the Commission: http://europa. the provisions on the EU’s employment policy remain practically unchanged in the Treaty establishing a Constitution for Europe. by QMV. Joint Employment Report: The Commission and the Council examine each National Action Plan and present a Joint Employment Report. A new employment title has been introduced in the EC Treaty with the adoption of the Amsterdam Treaty in 1997. Another important step of the evolution of this policy field was the Lisbon European Council (March 2000). 8. Nevertheless. The National Action Plans (NAP): every Member State draws up an annual National Action Plan which describes how these Guidelines are implemented domestically. The OMC was seen as a solution given the existence of too many national blockages at the EU level and the difficulty to further broaden social competences with the classical ‘Community method’ (including the adoption of legally binding measures). The objective is to increase the overall EU employment rate to 70% and to increase the number of women in employment to more than 60% by 2010. The Stockholm Council (March 2001) and the Barcelona Council (March 2002) emphasised that full employment is the main goal of the EU and reiterated its importance in the context of the enlarged EU. No progress has been made with the occasion of the drafting of the Constitution.htm all details on the Kok Report: http://europa.int/growthandjobs/reports/index_en.eu. considered that benchmarking and peer review were too weak as incentives for Member States policy delivery11. Historical Evolution of Employment Policy Even though the EU Employment Policy is supposed to be part of Social Policy. The Kok Report from November 2004.eu.

for a long period of time. This implies the general application of codecision (ordinary legislative procedure) and QMV.2. the central role of the Commission for proposing legislation and checking the implementation. 44 . which allows important power of manoeuvre for the Member States since unanimity is the rule of the game. immigration. decisions are taken according to the ‘Community method’ (i. The current provisions are found in a single chapter (Part III. EP. free movement of persons. a ‘passerelle clause’ allows the Council. in particular the abolition of the ‘third pillar’ and the extension of the ‘Community method’ to almost all aspects of this field. decisions are taken according to the ‘intergovernmental method’. too a certain extent. the adoption of policies by the institutional triangle: Council. asylum. the role of the ECJ in case of violation of Community law). the area of JHA has been integrated into the Treaties since the Treaty of Maastricht in 1993. the possibility of QMV decision-making in the Council. 9. This would imply more power for the EP. in a strictly intergovernmental manner. articles 61-69 of the EC Treaty). Article 29-32 of the EU Treaty). and judicial cooperation in civil matters (Title IV. acting unanimously. The Treaty establishing a Constitution for Europe pushes the evolution in the field of JHA towards full ‘communitarisation’ and introduces significant steps forward. Under the ‘third pillar’. Historical Evolution The historical evolution of Justice and Home Affairs (JHA) shows that these issues have been dealt with. the area of JHA shall remain shared competence. to move actions in areas of the police and judicial cooperation in criminal matters from the third to first pillar (full ‘communitarisation’ can only be possible through unanimity). ambiguous given that JHA is ruled by two working methods: Under the ‘first pillar’. Gradually however. security and justice gives a clear picture of how the EU works in general in the system of the ‘three pillars’. Commission. there was a clear progress with the partial ‘communitarisation’ of JHA related areas. the binding character of adopted Community law. Title III. six of the nine areas of JHA affairs were moved from the ‘third’ to the ‘first pillar’ through the Treaty of Amsterdam.e. Starting from 1999. The areas under the ‘third pillar’ are the following: judicial cooperation and police cooperation in criminal matters and harmonisation of criminal law (Title VI. Chapter IV). judicial control for the ECJ and legislative initiative for the Commission. Accordingly. JUSTICE AND HOME AFFAIRS 9. the functioning and decision-making in this policy field became rather complex and. Decision-Making Decision-making in the area of freedom. On the one hand. which created a dual situation. The areas under the ‘first pillar’ are the following: Visa. According to the Treaty establishing a Constitution for Europe.Chapter 2 9.1. On the other hand.

PSC or COPS. especially as regards trade policy and development cooperation. where any Member State can block any decision.1. the heads of state and government reaffirmed the need for “an autonomous capacity to take decisions and. Secondly. it has to be said that the abolition of the pillar structure does not mean the elimination of the ‘intergovernmental’ nature of CFSP. COMMON FOREIGN AND SECURITY POLICY 10. the Commission shall no longer be able 45 . The goal of the CFSP is that the EU shall ”assert its identity on the international scene. According to the Treaty establishing a Constitution for Europe. the text introduces the post of the President of the European Council who shall guarantee the external representation of the EU on CFSP related issues. The same is valid for the Common Defence Policy.000 persons capable of the full-range of Petersberg tasks”. Decisions are taken prevalent by unanimity. it creates the post of a Minister for Foreign Affairs (who is also one of the Vice-Presidents of the European Commission). With the occasion of the Helsinki Summit. which might lead to a common defence”. who will conduct and implement the CFSP on behalf of the European Council. Confronted with the failures and the experience of the wars in the Balkans in the mid 1990s. In addition (seen as a regress in the EU evolution). the decision-making of CFSP does not change.Chapter 2 10. He/she will be responsible for managing external relations and for coordinating other aspects of the Union’s external action. A series of new institutions were equally set in place such as the Political and Security Committee. the Member States agreed to further strengthen the CFSP. As regards the changes in the Treaty establishing a Constitution for Europe. This trend became obvious with the Franco-British St Malo Declaration in favour of a strong and independent CFSP in December 1998. to launch and conduct EU-led military operations in response to international crises“. To this end. “Member States must be able. by 2003. where NATO as a whole is not engaged. in December 1999. At the institutional level. to deploy within 60 days and sustain for 1 year military forces of up to 50. the text of the Treaty establishing a Constitution for Europe introduces two significant elements: First. the EU Military Committee (EUMC) and the EU Military Staff (EUMS). The common foreign policy covers all foreign policy issues of general interest with the exception of the areas of the ‘first pillar’.000 – 60. Historical Evolution The EU’s Common Foreign and Security Policy (CFSP) was formulated in the Treaty on European Union (1993). The common security policy refers to the Member States’ relationships with states outside the EU as well as coordination within international organisations. in particular through the implementation of a common foreign and security policy including the progressive framing of a common defence policy.

The Secretary-General of the Council of Ministers is also the EU’s High Representative for the CFSP. refer to the Council any question relating to CFSP and may submit proposals to the Council . the measures it can take include the following aspects.2. The EP receives regular information about developments and may make recommendations. The Council of Ministers (in this case the Ministers for Foreign Affairs of the Member States) implements the adopted strategies by deciding on joint actions and by adopting common positions.Chapter 2 to make proposals concerning the CFSP. The Objectives According to the EU Treaty. Another actor in the context of the CFSP is the ‘Troika’. 46 . Actors and Decision-Making Since the CFSP is an ‘intergovernmental’ policy approach.3. Another interesting element is introduced: a ‘solidarity’ clause whereby the other Member States will provide assistance (including the military resources made available by the Member States) if a Member State is the victim of a terrorist attack or a natural or man-made disaster. 10. The Commission may. as any Member State. support an initiative of the Minister for Foreign Affairs. when the EU decides to act (by unanimity). the objectives of the CFSP are to ”preserve peace and strengthen international security”. a consultation group representing the Union in international contexts. It may. however. He/she assists the Member State holding the presidency in the formulation and implementation of CFSP decisions. Peace-keeping operations: guarding a crisis area with military troops or police after a cease-fire.although it does not have the sole right to do so as in Community matters. 10. The High Representative. As for the defence aspects of the CFSP. it means the most important players are the European Council and the Council of Ministers. The Minister for Foreign Affairs of the incoming holder of the EU presidency. commonly known as the ‘Petersberg tasks’: Humanitarian actions and rescue operations. International crisis management by military means. It is formed of: The Minister for Foreign Affairs of the Member State holding the EU presidency. The European Council (the heads of state and government of the EU Member States) sets out principles and general guidelines for the CFSP and adopts common strategies to be implemented by the EU in areas where the Member States have important interests in common.

notably in the field of trade in agricultural products. The Doha Round was initiated by the EU in 1999 and had a very ambitious agenda going from market liberalisation in agricultural and industrial goods to intellectual property rights and above all measures necessary to integrate developing countries into the world trading system. Accordingly. The interaction between the the EU was forced to give some important concessions. 13 During the Uruguay Round of WTO negotiations (1986-1993). the decision-making process follows a quite strict and well-defined structure14. investment rules. Environment among others) of the Council precedes the formulation of the mandate. a different decision-making process prevails. to a certain extent based on the ‘Community method’ of decision-making.2. . the EC Treaty states in article 133: “The Common Commercial Policy shall be based on uniform principles.Chapter 2 11. Actors and Decision-Making In international trade negotiations. this international trade agenda enlarged substantially to cover issues such as trade in services. the Council. 11. the Treaty grants powers to the Community to conclude trade agreements with third countries on behalf of all Member States in order to achieve greater coherence in the elaboration and the implementation of all trade agreements with third countries. export policy and measures to protect trade such as those to be taken in case of dumping or subsidies”. the most important actor is the Commission (mostly DG Trade in cooperation with other DG’s following inter-service consultations) which elaborates a proposal that is submitted to the Council in order to obtain a negotiating mandate. there are 3 different stages in the policy-making process: In the first stage. As stated in article 133 EC Treaty. which resulted in successive reforms of the Common Agriculture Policy. In historical terms. 47 12 Eurostat. The EU’s exports rose from EUR 350 billion in the early 1990s to almost EUR 2000 billion in 200312. the conclusion of tariff and trade agreements. with a more important role attributed to the Commission. For autonomous trade measures. According to this article. usually in the foreign ministers formation. external trade and development policy of the EU is related to the establishment of a Common Commercial Policy. 14 We will look here at the decision-making process for the negotiation of trade agreements. An additional article (art. such as anti-dumping procedures or the implementation of safeguard-measures. “Panorama of European Union Trade”. particularly in regard to changes in tariff rates. 300 EC Treaty) has also been introduced for setting the framework for external trade policy-making. intellectual property rights and environmental clauses. A lot of preparation work in relevant working groups (on Agriculture.1. June 2003. the achievement of uniformity in measures of liberalisation. which is by far the most important part of the EU’s external trade policy. formally determines the EU’s negotiating ‘mandate’ in the second stage and authorises the Commission to start negotiations. Based on this proposal. EXTERNAL TRADE AND DEVELOPMENT POLICY 11. Historical Evolution of External Trade Policy The EU is one of the most important players in international trade. With the successive GATT and WTO-negotiation rounds13.

g. In this case the EP has to give its assent to these agreements before they can enter into force. Some agreements go clearly beyond trade (association agreements) and others just aim to grant unilateral preferences to countries with specific needs (e. some of them liberalising trade (Free Trade Areas). The role of the EP in trade policy-making is quite limited. The EP is informed about the course of negotiations of international agreements but its opinion is only important when association-agreements with third countries have to be adopted (art. 310 EC Treaty) or when agreements are negotiated which have institutional or budgetary implications.. This results of course in a wide range of agreements.g. with guidelines on how to conduct the negotiations and is an effective control mechanism of the actions of the Commission. The Instruments Another important aspect that needs to be mentioned is the distinction between the EU’s autonomous trade measures and the EU’s bilateral and multilateral agreements. and others limiting themselves to economic cooperation. This very influential Committee (the so-called ‘Article 133 Committee’) consists of high representatives of national Ministries of Trade. safeguard measures and other trade remedies that are applied unilaterally in order to defend EU industries against ‘unfair’ trade practice of the EU’s trading partners. ASEAN). During the negotiations the Commission is obliged to consult a specific committee installed by the Council on a regular basis. countervailing duties. 15 16 For the implementation of anti-dumping procedures and safeguard measures only a normal majority is needed Examples of the EU’s bilateral agreements are with individual trading partners (e. The EU’s bilateral agreements pursue a wide range of objectives: economic benefits. This Committee provides the Commission. In recent years the EU has been very active in the negotiation of bilateral agreements and on multi-lateral agreements within the WTO. Unanimity is needed for the so-called “mixed” agreements on issues covered by shared competence of the EC and the Member States15.Chapter 2 Commission and the Council continues after the mandate is adopted. For the adoption of a trade agreement. QMV in the Council is needed for agreements where an exclusive community competence exists. during the whole negotiation process. there are to be mentioned the EU’s bilateral and multilateral trade agreements16. 48 . 11. The Treaty establishing a Constitution for Europe tries to compensate this lack of ‘democratic legitimacy’ and accountability by proposing that the EP has to give its formal assent for all trade agreements and not only for association agreements. foreign policy objectives. Secondly.3. objectives of development aid.g. the Generalised System of Preferences). The autonomous trade measures represent instruments of commercial defence and consist of antidumping-duties. South Africa) or with regional groupings of countries (e.

The Actors One actor is the Commission’s DG Development. as for instance the Economic Partnership Agreements in the framework of the Cotonou Agreement with the ACP-countries (Africa. efficiency and efficacy. ISPA and SAPARD) or with humanitarian activities18. another actor is the Humanitarian Aid Office of the European Commission (ECHO) that played recently an important role in the EU’s reaction to the recent Tsunami disaster in South East Asia19. Development Policy is an ‘additional’ policy: the EU’s action in development aid must complete (and not replace) the Member States development aid policies in order to achieve greater coherence. by pursuing specific objectives and developing its own expertise of development aid: trade capacity building. Secondly. Its mission is to implement the external aid instruments of the European Commission which are funded by the European Community budget and the EDF. the EU tries to differentiate itself from the individual Member States in its development policy.eu.int/comm/europeaid/index_en. Another actor is the EuropeAid Co-operation Office. regional integration.htm 49 . Finally.Chapter 2 11. January 2002 18 Europeaid website: http://europa. one should note that the EU (and its Member States) is the world’s biggest provider in official development aid. Others are financed by the European Development Fund (EDF): an autonomous European fund for development aid consisting of proportional contributions from individual Member States. Historical Evolution of Development Policy The EU’s role as a strong actor in the international scene is not limited to its position in international trade. integration of developing countries in international trade and poverty reduction. Caribbean and Pacific). 11. The Instruments Some of these objectives are partially pursued through bilateral trade agreements.5.htm 19 ECHO website: http://europa.4. and support for sustainable access to social service. 11. First of all.int/comm/echo/index_en. the Treaty articles set out 3 equally important objectives for the EU’s Development Policy: harmonious social and economic development. transport infrastructure. food security and institutional capacity building17. 17 The European Union’s development policy. Apart from the fact that the EU is a strong economic power. In the projects financed by the EDF. The concept of Development Policy has been integrated in articles 177-181 of the EC Treaty and determines the most important characteristics of the EU’s Development Policy.6. It does not deal with pre-accession aid programmes (PHARE. statement by the Council and the European Commission.eu. which manages and monitors the programming of aid in the ACP countries and the Overseas Countries and Territories (OCT).

Today peace and security inside the EU are taken for granted. according to the referenda results. an internal market afterwards and a monetary union at last. The European Union remains the most successful voluntary integration process of the 20th century. security and stability. Referring to the negative results of the referenda on the Constitution we may say that Europe is changing and showing signs of a temporary blockage period in the history of the EU. In the near future. The paradox is. the European integration process had political aims. It was the idea to reach these political goals through economic means by the creation of welfare and prosperity through the establishment of a customs union first. it is internationally perceived as unstable and internally as not fully democratic. the EU became an economic giant. for a certain period. which will lead to new negotiations and new reflection on the next steps to be taken on the path of European integration. but remained quite often divided in the field of international politics and international security (see the internal crisis provoked by the Iraqi war) and therefore clearly demonstrated that it was at the same time a political dwarf and a military butterfly. Along the path of this integration process. However. expectations and ideas and external actors and institutional configurations. peace. 50 . The accession of new Member States adds to the complexity of this European policy process. New Member States need to get accustomed to the internal functioning of the EU in order to understand the nature of the decision-making process.Chapter 2 12. the EU’s internal institutional deepening (institutional reforms) and further widening (enlargement). CONCLUSIONS The overview of these policies shows that the EU policy process has different modes of operating and reacts and evolves according to both internal Member-States’ interests’. we will witness a period of mutual learning and accommodation. At the beginning. which will slow down. that public opinion is afraid of globalisation and enlargement while deepening and widening of the EU are the only valid answers to the risks of globalisation.

Social Affairs. Inter-Environnement Wallonie ASBL contre Région wallonne.htm 2 See Case C 29/84.int/en/content/juris/index. 1 See Case 129/96. the ECJ has developed two principles. according to ECJ case law. Commission/Belgium and Case C 239/95 .Commission/Belgium 5 See Case 26/62. France. which rule the relation between EC law and national law of the Member States: the principles of “direct effect” and of “supremacy”.htm or on Celex http://europa. Van Gend en Loos / Administratie der Belastingen. consequently. The national measures must take the form of a legally binding instrument and. which may seriously compromise the result prescribed by the Directive1. the EC Treaty and the European Court of Justice (ECJ) case law: Deadline A Directive has to be transposed by the EU Member States within the deadline set by the Directive itself. Labour and Employment. The Court Cases mentioned can be found on the Court of Justice Website http://curia. Commission/the Netherlands. which. has set up a “new legal order” of international law to which Member States and their nationals are subjects. However. Paris. without taking account of several basic principles of EU legislation. Quality of transposition When Member States have to transpose a Directive. Commission/Germany. they must refrain from taking any measure.EXPERIENCES OF FRANCE François Brillanceau* 1. the choice of the form and methods is left to the national authorities (see wording of Article 249 of the EC Treaty).Chapter 3 CHAPTER 3 TRANSPOSITION AND IMPLEMENTATION OF EC DIRECTIVES AND EC CONTROL OF CORRECT IMPLEMENTATION OF EC LAW . These two principles derive from the very nature of the EC Treaty. the transposing measures need to be sufficiently precise and clear3. the existence of general principles of constitutional or administrative law may render the implementation by specific legislation superfluous.eu. THE BASIC PRINCIPLES OF EU LEGISLATION The transposition process of EU Directives cannot be dealt with. 3 See Case C 291/84. 4 See Case C 102/79. Those basic principles derive from both. otherwise leading to an infringement procedure launched against the Member State. Member States are not obliged to adopt transposing measures before the deadline but. 51 . Principles of “supremacy” and “direct effect” In the early 1960ies. according to the ECJ5.int/celex/htm/celex_en. * Legal Adviser in European Law at the Ministries of Health. Provided that certain conditions are met. mere administrative practises are prohibited4.eu.

In order for the individuals to benefit from the “direct effect” of provision of EC legislation. the national judge has the duty to ensure effectively those rights. the adoption of a national legal transposition measure) as they are already part of the Member States legal order. “Consistent interpretation” principle (“principe d’interprétation conforme”) In case of doubt concerning the interpretation of a national legislation. Costa/E. this means a measure which is “directly applicable” does not need to be transposed. there must be a guarantee that the national court will give priority to EC law rather than to national law. The idea behind the principle of “direct effect” is first of all to protect individual rights. According to the ECJ case law. 6 The principle of “direct effect” should not be mixed up with the principle of “direct applicability”. according to the wording of the EC Treaty. Van Colson et Kamann / Land Nordrhein-Westfalen. secondary legislation (mainly directives. This obligation applies in cases national provisions in question were adopted before or after the EC Directive and when the legal proceedings before the national Court are “vertical” or “horizontal”13. Marleasing/ Comercial Internacional de Alimentación. EC law prevails over all national law. regional and local norms and also over the Member States’ Constitutions. It also guarantees an effective implementation of EC law in the national legal orders through national courts and individuals. This obligation is clearly established for “regulations” which are. Marshall/ Southampton and South-West Hampshire Area Health Authority. and shall refrain from. international agreements and general principles of EC law. 10 See Case C-152/84. Van Gend en Loos/ Administratie der Belastingen. EC law also binds every level of national authorities: the judge must not give effect to a national measure contrary to EC law and the administration must not apply national measures contrary to EC law.under certain conditions .E. it applies also even if the national measure only applies during a transitory period or if the interpretation concerns national case law. Ratti.L. 8 See Case 26/62. 7 See Case 26/62.Chapter 3 According to the principle of “direct effect“6. “Direct applicability” in the framework of EC law means that the Member States do not need. “directly applicable”. An EC provision may produce a “direct effect” only if it is clear and unconditional8. a provision of the EC Treaty or a secondary legislative act (regulation. regulations and decisions). The legislature will have to repeal such measures.N. 12 See Case C 14/83. Regulations become applicable ”without further enactment” (e. The principle of supremacy refers to all EC law irrespective of its nature: Treaty provisions. 13 See Case C-106/89. which are eager to have their rights respected. The latter case however does not apply to provisions of Directives10.directly be invoked by those individuals before their national courts7. a national court is required to interpret its national law in the light of the wording of a relevant EC Directive12. 11 See Case 6/64. they still need of course to be implemented. Van Gend en Loos / Administratie der Belastingen. it will have precedence over domestic laws11. directive or decision) which confers rights on individuals can . whenever EC legislation is adopted. intervening to give legal effect to the legislation. 52 . Despite the fact that regulations shall not be transposed.g. According to the principle of “supremacy”. 9 See for instance Case C 148/78. The “direct effect” may be raised by individuals before a national court against a Member State (so-called “vertical direct effect”)9 or against another citizen (so-called “horizontal direct effect”).

This task. Three main consequences arise from this clear need of continuity between the negotiation and the transposition stages: The civil servants in charge of drafting the transposing measures must be involved as early as possible in the negotiation step. the transposition must be prepared. the outcome of the negotiation of a Directive will greatly influence the task of transposing this Directive. Both aspects have to be dealt with in parallel in order to avoid unrealistic provisions from a technical or a legal point of view. Consequently. attend the Council of Ministers’ meetings. A global vision of the technical and legal consequences of a set of provisions is necessary. especially when ‘technical’ Directives are negotiated. which is the Prime Minister department in charge of co-ordinating the French position on EU policies. Usually. THE TRANSPOSITION PROCESS OF EC DIRECTIVES IN FRANCE The adoption of national measures in order to transpose EC Directives is necessarily linked to the negotiation of EC Directives.1. which will be in charge of the transposition. the Prime Minister’s Cabinet organises a meeting in order to decide about the French position. An appropriate coordination between the different positions defended at national level is also very important. as a Directive that has not been properly negotiated by a Member States may lead to great difficulties when this Member States has to transpose it. This means that the French position defended at EU level will be previously examined internally during inter-ministerial meetings organised by the SGCI. A constant co-ordination between scientific/technical and legal specialists is thus crucial. in parallel with the negotiation. In case of difficulties in reaching an agreement on the French position. the potential political difficulties that may arise in the course of the transposition process.Chapter 3 2. Continuity between negotiation and transposition in practice Continuity from an organisational point of view In France. Indeed. which will determine the negotiation positions. the ministerial departments. it is necessary to ensure at least that the civil servant in charge of 53 . This requires that the competent ministerial departments concerned by the matters covered by a proposal for a Directive are defined as soon as the proposal is adopted by the Commission. 2. which will then be defended at EU level by the French Permanent Representation in Brussels. The reason is obvious. It is important to identify as earlier as possible. the negotiation positions of the different ministerial departments are previously discussed at an internal level by the SGCI. In case continuity between the negotiation stage and the transposition stage appears to be difficult to realise. implies that an assessment of the impact of the proposed directive with the Member State is done.

Chapter 3 the transposition is able to identify the negotiator of the directive.uk/regulation/ria/index. The United Kingdom Administration has developed a very comprehensive tool in order to measure the likely impacts of a policy change and the range of options for implementing it14. This tool is called the “Regulatory Impact Assessment” (RIA) and is currently used for any type of new legislation. The proposal’s contribution to the existing national legislation.cabinetoffice. This impact assessment will be useful not only in the context of the negotiation itself. Impact assessment of a proposal Once a proposal for a directive is adopted by the Commission. there is a clear need to identify the potential impact of the proposed directive from a political and legal and other point of views. economical and environmental point of view will depend on the content of the Directive proposal: o In case where the content of the Directive proposal complies with already existing 14 See Website of the UK Cabinet Office and especially the following link: http://www. the potential difficulties that may arise during the transposition process. It will be forwarded to the SGCI and then to the competent committees of the Parliament. In case of doubt concerning the exact meaning of a directive provision.gov. the negotiation positions that can be taken by the United Kingdom Government. In practice. The national regulations that would need to be modified if the Directive proposal is adopted.asp 54 . The existing national legislation in the matters covered by the Directive proposal. reasons why the proposal is made. the need to identify the potential impact from a legal point of view (which national regulations need to be amended) is rather easy to do. This “simplified impact assessment fiche” has to be filled in by the competent ministerial departments. but also in order to identify well in advance. etc). As the proposal may change in the course of the negotiation process. an impact assessment is usually done within three months following the publication of a proposal for a directive by the Commission. a RIA aims at defining the potential impact of a Directive proposal and. the “impact assessment fiche” has to be updated regularly. The assessment of the potential consequences of the proposal from a social. The acceptable and unacceptable aspects of the proposal. In France. he/she will be then able to obtain necessary clarifications. The fiche should provide the following information: The context in which the Directive is proposed (overview of the existing EU legislation. including EU Directive proposals. consequently. In the particular case of EU Directives.

The type of instrument needed will greatly influence the foreseen schedule of adoption of the transposing measures.). legislation linked to consumer protection. The transposition process and its monitoring at national level The technical work of transposition should start as soon as the Directive has been definitely adopted. According to this principle.2. Those tools are either of an organisational nature or of a technical nature (support documents). – Administrative difficulties concern problems to anticipate possible conflicts between different ministerial departments. For instance. the assessment will raise no difficulties. 2. In theory. The ongoing negotiations concerning the “services in the internal market” directive15 have shown the need to analyse the impact on the national authorisation systems as well as the potential impact of the proposed “country of origin” principle. o Such an assessment becomes difficult when a proposal obliges Member States to review their national legislation in several fields. The proposal promotes a new principle in order to facilitate cross-border provision of services. which aims at achieving the internal market of services. is meant to facilitate the provision of services. 55 . task-sharing problems between different ministerial departments may arise during the transposition process. The task of transposing a Directive requires relying on specific tools in order to be able to cope with potential difficulties (legal or administrative). Member States frequently have problems in identifying and solving the legal and administrative difficulties in order to deliver the transposing measures on time: – Legal difficulties concern the need to define what type of legal instruments (law or decree for instance) is required in order to transpose a Directive. those difficulties should be identified and solved during the negotiation process. Sometimes however. In such a situation. Difficulties met during the transposition process and possible tools that can be used When transposing EC Directives. In particular. etc. this proposal imposes on the Member States the obligation to review their national legislation concerning prior authorisations (prohibition of unjustified authorisations required for establishing oneself in another Member State). 15 This proposal. which is ‘hosting’ the provider (including labour legislation. a common position defined at national level and successfully supported before the Council during the negotiation process may be ambiguous because it is the result of internal compromises. the “country of origin” principle. in order to deliver the transposing measures on time. heavy discussions at the national level will probably start again when transposing the directive. the service provider’s national legislation prevails over the legislation of the Member State.Chapter 3 national legislation or does not provide for stricter obligations than those contained in the relevant national legislation.

The three above-mentioned documents have to be delivered to the SGCI not later than three months after the adoption of the Directive.Chapter 3 In order to cope with those difficulties.int/comm/internal_market/score/index_en.eu. several tools are used in France16: – The table of correspondence: Once the directive is adopted. the provisions that need to be transposed.fr/WAspad/UnTexteDeJorf?numjo=PRMX0407654C 56 . A meeting is then organised in order to determine the responsibilities of the different ministerial departments involved in the transposition. The current system relies on the need to ensure a greater involvement of the different actors at political. the competent ministerial departments shall be able to define the broad lines of the transposition measures that are needed. It will also help to determine which provisions do not need to be transposed. and the French legislation requiring to be amended. administrative and parliamentary levels. the competent ministerial departments involved in the transposition shall provide the SGCI with a table of correspondence. solutions have to be found at the SGCI level (meetings) or else at the Prime Minister’s Cabinet level.gouv.htm 18 http://www. the French monitoring system was modified in September 2004 by a circular letter18. 17 Comprehensive information can be found under the following links : http://europa. Consequently. – Political level: According to the circular letter each Minister has a responsibility in the transposing process. which is regularly updated and published. Each ministerial department designates a member of Cabinet responsible for the follow up of the transposition process.legifrance. In case of conflicts between ministerial departments. 16 As far as the transposition process is concerned. – Draft schedule of adoption: each ministerial department shall be able to describe the foreseen calendar of adoption of the transposing measures. clearly shows the Member States which are fulfilling their obligations and those which are late17. The need for a monitoring of the transposition process at a national level The monitoring of the transposition processes at national level proves to be necessary. not only in order to avoid being late in delivering the transposing measures but also because the internal market scoreboard of the Commission. the competence of several ministerial departments tend to complicate the drafting and the adoption of transposing measures.eu. In order to improve bad results in transposing directives on time. the frequent adoption of stricter rules than the provisions of the Directive. the Council of Ministers periodically examines the list of the Directives which are not transposed in due time. which describes both. – The draft transposing measures: as far as practicable. all Member States are more or less confronted with a lack of political willingness and/or a slow and inadequate legislative process. http ://europa.int/comm/secretariat_general/sgb/droit_com/index_en. Several other difficulties are currently pointed out in France: compulsory consultations of specialised committees when drafting the transposing measures which slow down the process.

57 . every three months at two levels: o The SGCI meetings involve the high ranked civil servants who are designated or their assistants. Regular follow-up meetings are organised. o The possibility to organise simplified procedures for adopting transposing measures is under assessment (however. the Commission recommends to the Member States to take account of several priorities.eu. in order to review all the ongoing transpositions. 3. which has failed to fulfil its obligations under the EC Treaty. 19http://europa. – The correct and timeliness transposition of Directives into national law is also of great concern for the Commission. During these meetings all difficulties met in the context of the transposition process have to be discusses. this requires a modification of the Constitution). and if.pdf 20 See in particular the Commission Communication of 16/05/2003 on Better monitoring of the application of Community law (COM (2002) 725 final). if such co-operation fails to reach its objectives. o Every three months. Parliamentary level: The new circular letter provides three types of solutions in order to speed up the adoption process before the Parliament: o One afternoon per month is now dedicated to the adoption of legislation required for transposing EC Directives. In its recently published Recommendation of 12 July 2004 on the transposition into national law of Directives affecting the internal market19. the Commission can initiate an infringement procedure under Articles 226 and 228 of the EC Treaty against a Member State. o The General Secretariat of the Government (SGG) meetings involve the high rank civil servants and the members of Cabinet designated for the follow up of the transposition process. possible.Chapter 3 – Administrative level: A high ranked civil servant is designated in each ministry in order to ensure the follow up of both the negotiation stage and the transposing process for all directives falling under the responsibility of the concerned ministry. However. a law containing transposing provisions is submitted to the Parliament. solved. at least. which mainly focus on the directives for which there is a delay in adopting the transposition measures. The Commission and the Member States have to commit themselves to co-operate together in order to fulfil their respective competences and obligations20. are useful in order to lift remaining technical and administrative difficulties.int/eurlex/lex/LexUriServ/site/en/oj/2005/l_098/l_09820050416en00470052. HANDLING INFRINGEMENT PROCEDURES PROVIDED BY ARTICLES 226 AND 228 OF THE EC TREATY In its role of Guardian of the Treaties. These meetings. the Commission has to ensure that EU legislation is correctly transposed and applied by the Member States.

The ‘bad-application’ case: This concerns the case where a Directive is correctly transposed but not correctly applied (implemented). It is initiated by the Commission against a Member State. If the State concerned does not comply with the opinion within the period laid down by the Commission. 58 21 Article . there are different types of failure to fulfil obligations deriving from EU legislation: The ‘non-communication case’: This concerns the failure of a Member State to communicate the transposing measures. which is initiated by the Commission and which may end in a judgement by the ECJ. An infringement case may be opened at the Commission’s services own initiative (e. Before the pre-litigation phase. the Commission may bring the matter before the ECJ. This ‘inquiry step’ which is optional will help the Commission to determine whether the case concerns or not an infringement of EC law and consequently if the Commission has competence to deal with it and. the latter may bring the matter before the Court of Justice”. The main features and actors of the infringement procedure under Article 226 and Article 228 of the EC Treaty The Article 22621 infringement procedure is an important tool to ensure the correct application of EC law.1. As regards the obligation of transposition of EC Directives. it shall deliver a reasoned opinion on the matter after giving the State concerned the opportunity to submit its observations.Chapter 3 3. which has failed to fulfil an obligation deriving from EC law (EC Treaty and secondary legislation). 226: “If the Commission considers that a Member State has failed to fulfil an obligation under this Treaty. In the two latter cases an assessment is made by the Commission. The ‘non-conformity case’: This concerns the case where a Directive is not correctly transposed for instance. the Member State and the European Court of Justice) and goes along two major formalised steps: A pre-litigation phase. The infringement procedure under Article 226 EC Treaty involves three actors (the Commission. which will decide about further actions and the opening of the 226 procedure.g. eventually. whether the infringement – according to the Commission – actually exists or not. A litigation phase. an inquiry has revealed a possible breach). during which a dialogue is engaged between the Member State and the Commission in order to solve the breach. an informal dialogue by means of an exchange of letters may be engaged between the Commission and the Member State. In case the Member State concerned fails to comply with the Commission’s opinion defining the Member States infringement and the measures the Member State has to take in order to stop the infringement. on the basis of a complaint lodged by an individual before the Commission or before the petition committee of the European Parliament.

by formally stating the infringement of the Treaty with which the Member State concerned is charged.Chapter 3 3. Additionally. The sending of a reasoned opinion by the Commission in case the explanations given by the Member State in the reply to the letter of formal notice are not considered satisfactory by the Commission24. Commission/France. The Commission will then decide to lodge an application before the ECJ. It involves two formalised steps: The sending of a letter of formal notice by the Commission. to decide on the authorisation of contacts. on the size of the Court. the need to decide to postpone the case. 24 For the ECJ’s definition of the reasoned opinion (Case 74/82. which is invited to submit its observations. 3. 59 22 23 . the Commission formally sets out its position with regard to the legal position of the Member State concerned. See the Court’s definition of the letter of formal notice (Case C 230/99. the conflict between the Commission and a Member State may persist.3. paragraph 13): “(…) In issuing a reasoned opinion. The Commission has discretionary power to continue or to put an end to the procedure at any time during the pre-litigation phase. The pre-litigation phase The main purpose of the pre-litigation phase is to give the Member State the opportunity to comply with its obligations under EC law or to avail itself of the right to defend against the complaints made by the Commission22. This phase ensures that essential guarantees required by the EC Treaty in order to protect the rights of the Member State concerned are preserved.g. on the closure of the case etc). every single decision taken during the pre-litigation phase requires a Commission decision (principle of collegiality of the decision making process). to delimit the subject-matter of the dispute and to indicate to the Member State. first. the reasoned opinion concludes the pre-litigation procedure (…)”. to enable the Member State to comply before proceedings are brought before the Court”. second. It is worth noting that other decisions may need to be taken during the procedure (e. The objective is to have clearly stated by the ECJ the Member State’s See for instance Case C-1/00. the factors enabling it to prepare its defence and. The litigation phase Following the reply to the reasoned opinion. Commission/France): “(…) it follows from the function assigned to the pre-litigation stage of proceedings for failure of a State to fulfil its obligations that the purpose of the letter of formal notice is. Commission v Ireland [1984] ECR 317. it also helps to define the exact subject matter of the litigation phase. This letter aims at defining the alleged infringement and gives the opportunity to the Member State concerned to submit its observations concerning the issue at stake in the infringement procedure23. Eventually.2. Moreover. it will have to issue a complementary letter of formal notice or a complementary reasoned opinion. if the Commission finds out new grounds during the infringement procedure.

on the other hand. which has failed to fulfil the ECJ judgement. In so doing it shall specify the amount of the lump sum or penalty payment to be paid by the Member State concerned which it considers appropriate in the circumstances. That is why three 25 As in any national courts. This is in compliance with the judicial competence of the ECJ. the ECJ may impose financial penalties on the Member State. As soon as an ECJ Decision declares that a Member State has failed to fulfil its obligations. the pre-litigation phase under Article 226 and. litigation phase). –Litigation phase under Article 226 procedure and the pre-litigation phase under Article 228 procedure: The different stakes require different procedures. 3. the Commission automatically launches an action under the Article 228 procedure26.) “ 60 . the procedure before the ECJ starts by a written stage followed by an oral stage. The SGCI co-ordinates the replies if necessary and sends the French position to the French Permanent Representation. Since the issue becomes important for potential legal or financial reasons. the State shall be required to take the necessary measures to comply with the judgment of the Court of Justice. the litigation phase of the Article 226 procedure and the pre-litigation phase of the Article 228 procedure: – Pre-litigation phase under Article 226 of the Treaty: The drafting of the replies to the Commission involves the ministerial department(s) concerned by the infringement. Handling infringement procedures in France In order to cope with infringement procedures from an organisational point of view. the latter may bring the case before the Court of Justice. the Member State has to fulfil its obligations. on the one hand. The reply is then communicated to the Commission.Chapter 3 failure to fulfil its obligations25. an important difference has to be made between. The Article 228 infringement procedure is similar to the pre-litigation phase under Article 226 of the EC Treaty (letter of formal notice. If the Court of Justice finds that the Member State concerned has not complied with its judgment it may impose a lump sum or penalty payment on it (…. If the Commission considers that the Member State concerned has not taken such measures it shall. which has to ensure that EC law is not interpreted and applied differently from one Member State to another and that the EC legal system remains a Community system that is always identical for all circumstances.4. This action is based on the ground that. reasoned opinion. the content of the reply and the strategy must be carefully checked. after giving that State the opportunity to submit its observations. the Member State concerned fails to comply with the ECJ decision. by failing to take the necessary measures to put an end to the breach declared by the Court. If the Member State concerned fails to take the necessary measures to comply with the Court’s judgment within the time limit laid down by the Commission. Upon request of the Commission. 26 Article 228: “If the Court of Justice finds that a Member State has failed to fulfil an obligation under this Treaty. If the ECJ considers that EC legislation has been infringed. issue a reasoned opinion specifying the points on which the Member State concerned has not complied with the judgment of the Court of Justice.

companies. its rules of procedure guarantee the rights of defence and its decisions are binding. which national courts must protect (principle of “direct effect”). which may play a role in the context of the Article 234 procedure: the national courts.1. 27 Article 234: “The Court of Justice shall have jurisdiction to give preliminary rulings concerning: (a) the interpretation of this Treaty. where those statutes so provide. if it considers that a decision on the question is necessary to enable it to give judgment. national courts may. Where any such question is raised in a case pending before a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law. the Commission and the Parties (individuals. ECJ case law defines the concept of a national court: it is created and organised by a national legislation in order to exercise judicial competences. that court or tribunal shall bring the matter before the Court of Justice” 61 . the Member State(s).Chapter 3 actors are involved: the legal service of the SGCI (co-ordination). turn to the ECJ and ask for clarifications concerning the interpretation of Community law. However. (c) the interpretation of the statutes of bodies established by an act of the Council. directives and decisions) since those provisions may directly confer individual rights on nationals of Member States. The national courts: In the context of legal proceedings which is pending before a national court. etc. National courts are also concerned by secondary legislation (regulations. THE REFERENCE FOR A PRELIMINARY RULING – ARTICLE 234 OF THE EC TREATY27 The ECJ is the supreme guardian of Community legality. and sometimes must.) who are involved in the dispute. In order to ensure the effective and uniform application of Community legislation and to prevent divergent interpretations. Where such a question is raised before any court or tribunal of a Member State. The extent of the obligation of a national court to refer a preliminary ruling depends on whether or not there is a possible remedy against the national court’s decisions. that court or tribunal may. a national court is entitled to ask the ECJ any question related to the interpretation of EC law. the ECJ. (b) the validity and interpretation of acts of the institutions of the Community and of the ECB. the competent departments of the ministries concerned (technical expertise) and the legal department of the ministry for foreign affairs (EU legislation specialists). Two consequences arise from this situation: National Courts are by their nature the first guarantors of Community law. Actors and main features of the procedure There are several actors. request the Court of Justice to give a ruling thereon. 4. 4. it is not the only judicial body empowered to review the application of EC law. it is independent and impartial.

EC law does not apply to the content of the dispute which is pending before the national court). At national level in France. The Member States may decide not to intervene. The ECJ is bound to the wording of the questions put forward by national courts. the French authorities may decide to intervene before the ECJ. the competent institutions are obliged to take the necessary measures in order to modify it. The other actors: all parties involved i. which have been raised by another Member State Court. three actors are involved: the legal service of the SGCI (co-ordination). If an EC secondary legislative provision (directive. decision) is declared invalid by the ECJ because it does not comply with EU legislation. the ECJ is not taking the final decision in the procedure pending before the national court.e. Handling the Article 234 procedure in France In France. 4. the parties in the proceedings pending before national courts and the Commission may take part in proceedings before the ECJ in order to take the opportunity to defend their own interpretation of the EC law provision.Chapter 3 The ECJ: The ECJ considers that it is obliged to examine the question(s) raised. or if the reply will have no impact on the solution of the dispute (e.2. Such behaviour is however not recommended because a number of important principles of EC law have been laid down in preliminary rulings. The reference for preliminary ruling contains the background of the case and the question(s) raised. which is being examined before the ECJ. In case the ECJ considers that the question(s) raised has (have) already given rise to a preliminary ruling. an intervention before the ECJ within a procedure under Article 234 is always decided if a French national Court makes the reference to a preliminary ruling. Main characteristics of the procedure: The Article 234 procedure is based on judiciary co-operation: the national judge has the exclusive right to launch the procedure for preliminary ruling. regulation. When the questions. the competent departments of the ministries concerned (technical 62 . The judge is obliged to solve the dispute along the conclusions of the ECJ. or the question does not concern the interpretation or examination of the validity of a Community provision. The ECJ makes an interpretation of EC law and is not acting as an appeal court. except if the dispute does not clearly exist. The parties involved in the dispute can only give their opinion before the ECJ. the Member States.g. concern a national legislation similar to the French legislation. The ECJ’s judgement also binds other national courts where a problem of the same nature is raised. it will issue a “Reasoned Order”. The national court to which the interpretation of EC law is addressed is bound by the interpretation given by the ECJ.

63 . The application is prepared by the Ministry for foreign affairs and reviewed by the competent ministerial department and the legal service of the SGCI.Chapter 3 expertise) and the legal department of the Ministry for foreign affairs (EU legislation specialist). the competent ministerial department sends a note giving the reasons why an intervention is needed and the broad lines of the reasoning which may be followed (either during the written stage or during the oral stage before the ECJ). the procedure is as follow: The reference for a preliminary ruling is forwarded by the SGCI to the ministerial departments which may be concerned. If it wishes to intervene. A meeting is organised by the SGCI in order to check whether an application should be prepared and what should be the content of the application. In practice. It is then sent to the ECJ.

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SECTION 2 INTERNAL MARKET .

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INTRODUCTION: THE MARKET SYSTEM IN THE EU The Lisbon summit in 2000 declared the ambition to create in the EU the world’s most dynamic knowledge-based economy by 2010. services and capital is ensured”. properly regulated. Cross-border transactions became easier * Reader. For the EU this means a complicated balancing act between national and European level regulation. Belgium. 67 . the latter being more efficient where there are significant cross-border ‘spillover effects’ from national legislation. The market system is acknowledged as the most effective way to organise a modern. environmental and other concerns. 2. This provides a home market big enough to exploit fully economies of scale in industries where size is important. With the accession of Romania and Bulgaria in 2007. particularly where industries are highly concentrated. University of Nottingham. This allows much faster progress on rule making. Visiting Professor at the College of Europe.Chapter 4 CHAPTER 4 THE FUNCTIONING OF THE INTERNAL MARKET Robert Hine* 1. The Single European Act provided a firm basis for completing the internal market by requiring more qualified majority voting (QMV) in all areas except taxation and some aspects of social policy. Leverhulme Centre for Research on Globalisation and Economic Policy. However. it is appreciated that an unregulated market has major failings. Bruges. The belief is that. The platform for this agenda is the Internal Market. Therefore governments enact rules to deal with a wide range of consumer. dynamic economy. THE EU’S REGULATORY STRATEGY FOR THE INTERNAL MARKET The aim of the Internal Market is to create an “area without internal frontiers in which the free movement of goods. United Kingdom. the EU will have a population of 450 million mostly affluent and middle-income consumers. Market integration was to be achieved via three routes: Liberalisation: The Internal Market necessitated the removal of internal frontier controls between the Member States. persons. to provide scope for specialisation into a wide range of market niches and competition to drive innovation and cost-reduction. this will create the best possibility for the citizens of the EU to enjoy a high and increasing standard of living.

Approximation: National laws have to be adapted in such a way and to such an extent that cross-border trade is no longer hindered directly or indirectly.The EEC Customs Union The foundations for the Internal Market were laid with the creation of the customs union between the original six Member States over the ten years to 1968. Beyond this. or European Court of Justice (ECJ) rulings or EC regulations/ directives). Any further elaboration of national rules would be subject to regulatory competition. Then approximation should no longer be necessary and free movement can prevail. safety. environment and consumer protection. Instead approximation means a sufficient harmonisation. even when Art 30 derogations are invoked. safety. in the customs union all goods entered into free circulation regardless of origin. Unlike a free trade area. health. actually or potentially. THE INTERNAL MARKET FOR GOODS 3. Measures that make intra-EC imports more expensive than the sales of domestic products are not allowed. Empirical evidence suggests that the original EU customs union gave a significant boost to trade between the member countries and thereby stimulated 68 . This ruling therefore undermined the regulatory autonomy of the Member States with respect to intra-EC imports and made much approximation of rules unnecessary. Art 28 (old 30) banned measures with equivalent effect to quantitative restrictions. encouraging more trade and investment. Mutual recognition: In general Member States have equivalent regulatory objectives in safety. This does not mean a complete centralisation of rules where all national rules are replaced by EU measures. Mutual recognition was introduced by the ECJ’s Cassis de Dijon ruling in 1979: importing country regulations do not apply to intra-EC imports as long as the national regulatory objectives are equivalent. free movement is a legal requirement and hence Member States are prevented from intervening in crossborder trade by direct or indirect means (the legal basis is the Treaty.g. including a common external tariff. environmental. or consumer protection grounds). This involved the removal of all tariffs and quotas on trade between the member countries and the establishment of a common trade policy. national quotas on third country trade were no longer viable). Creating an Integrated European Market . Hence EU measures should only deal with essential health. directly or indirectly. The ECJ interpreted this as “all trading rules enacted by Member States which are capable of hindering. This also has major implications for the efficacy of some national regulations (e. 3. National discretion only exists where there is an explicit derogation in the Treaty (on health. environmental or consumer protection. This implies a right to enter national markets.1. intra-Community trade”. the important starting point is an agreement on the goals of the legislation.Chapter 4 and faster.

provisions already existed in the Rome Treaty. services. persons and capital). and to the persistence of a wide range of non-tariff barriers which continued to protect weak industries and firms. especially in services. Efficient suppliers in all countries were thereby penalised.3. The Commission proposed 300 practical measures to establish the Internal Market by the end of 1992 when intra-EU border controls were to be ended. Technical barriers: different national technical standards and regulations raised costs sometimes requiring where separate product specifications for separate markets. ‘Buy national’ measures: discriminatory public purchasing. It aimed to revitalise the EC market in order to stimulate growth and employment and to improve European competitiveness by creating “an area without internal frontiers” via the four freedoms of movement (goods. but needed to be properly implemented. The Commission’s White Paper Completing the Internal Market from 1985 identified a range of impediments to intra-EU trade. to the similarity of the original members’ economies with relatively small cost differences. Tax barriers: the system allowed exports to be free of Value Added Tax (VAT) and excise duties (goods were taxed on entering the importing country) which required tax checks at borders. after 25 years the EU market was described as ‘non-Europe’. In many cases.Chapter 4 competition and a reduction in price-cost margins. 69 . This can be attributed to the low unemployment rates allowing those who lost jobs to be quickly reemployed. There were surprisingly few problems with the ending of tariff and quota restrictions on intra-EU trade. These included: Physical barriers: it was estimated that frontier controls added 2% to trade costs in form-filling and delays. 3. The Internal Market Programme The Internal Market programme was launched in 1985. in order to protect local firms and jobs. They focused on three key areas: technical standards. governments generally bought locally even where costs were much higher. The legislative programme was largely successful: 90% of the measures were incorporated into national law by the end of 1993.2. public procurement and tax collection. It was found that. ‘Non-Europe’ – The Fragmented Market in the Mid-1980s Even though the customs union ended tariffs and quotas. 3.

The new approach on technical harmonisation is complemented with a ‘Global Approach to conformity assessment’. progress with each was very slow because of the need for compromises among member countries with very different national traditions. These new approaches try to strike a balance between: Ensuring the free movement of goods through technical harmonisation for entire product sectors. necessary to ensure that cross-border trade is not obstructed either directly or indirectly. the importing country recognises the regulatory regime of the exporting country – hence ‘mutual recognition’. 70 . To set technical standards in the European standardisation bodies. Setting up appropriate conformity assessment procedures. the machinery directive (98/37/EC). Introducing CE marking. which offer one route to compliance. In this way. applied since 1985. The key innovations are: Limiting mandatory requirements to essential health and safety aspects for groups of products. The general procedure is: To stipulate essential health and safety requirements for groups of products. which reduce information costs for business and technical designers. This should mean that replacing national with harmonised EU measures is unnecessary – free movement of goods should be allowed even if the details of domestic regulation differ from those in the country of origin. but business and industry are given a wide choice of how to meet their obligations.5. The European standardisation bodies draw up technical specifications.4. and Guaranteeing a high level of protection of public interest objectives (Article 95 EC Treaty). 3.g. environment and consumer protection. and as far as.Chapter 4 3. does not require a centralisation of rules but agreement on goals and an approximation of measures – national laws must be adjusted where. 25 Directives have been enacted under the new approach (e. Dealing with Technical Barriers: Approximation The ‘old approach’ to technical standards involved very detailed EU measures for individual products. Later to specify common but voluntary standards. The new approach. Dealing with technical Barriers: Mutual Recognition Technical regulations in the EU Member States are motivated by broadly similar objectives regarding safety. health. Since 1987.

such remedies must include. the setting aside of unlawful decisions and discriminatory specifications (technical. which are in breach of the law. Public Procurement Public procurement is a major activity (equivalent to16% of EU GDP). and the compensation of injured parties. health and safety protection.Chapter 4 This principle developed from case law. First. A country cannot apply detailed national regulations if the objective or effect of the relevant law in the other MS is equivalent to that in the importing country. In all Member States. it helps to deter over-regulation by Member States since this could disadvantage their own producers. To combat discrimination against suppliers in other EU countries. the public procurement directives have established mandatory requirements on: Publicity: invitations to tender and contract award notices above a certain value (ranging from approximately € 150 000 for supplies and services to nearly € 6 000 000 for works) must be published in the EU Official Journal (OJ). Mutual recognition has a number of important advantages. in particular. it introduces an element of regulatory competition through cross-border trade and thereby draws attention to best practice. Art 95 EC (ex Art 100a EC) then allows approximation with qualified majority voting in the Council. because of high information. Although it can be justly called ‘a remarkable innovation’. The good news is that the Commission has observed a large increase in published procurement invitations and a reduction and convergence in prices paid by public authorities for supplies. it covers at most 30 per cent of intra-EU trade. must be subject to effective and rapid remedies through courts and/or administrative bodies. Remedies: The current Remedies Directives require Member States to ensure that review procedures are available at least to any person having or having had an interest in obtaining a given public contract and having been or likely to be injured by an alleged infringement. the proportion is much lower. then free movement can be prevented. Thirdly. economic and financial) in the invitation to tender. In practice. The bad news is that still only 16% of estimated public procurement is published in the OJ. the possibility of taking interim measures (such as suspension of the award procedure in question). the Internal goods Market can be achieved more rapidly. Decisions of the contracting authorities. the 1979 Cassis de Dijon ruling where it was established that: A product lawfully produced and marketed in another MS must be allowed into its own market.6. Secondly.g. transaction and compliance costs. If the regulatory objective or effect is not equivalent. 71 . unless banning this is justified by mandatory requirements e. works and services. 3.

However. Suppliers may enter another member country temporarily or permanently. services were neglected in the EC Treaty and little action was taken until the1980s.8.8% in 2003 compared with 12. 72 .1. there is still a long way to go towards this goal in the EU where average price differences remain 30% across countries (compared with 5% within countries) . In theory goods sold to private customers in other EU countries are taxed under the VAT system of the supplier.3% in 1998. suppliers. integrating European services markets requires the cross-border movement of users or. 4. Fiscal Frontiers The current system of indirect taxation is a VAT based on taxation in the Member State of consumption. Services tend to be highly regulated.5 from 14. Distance sellers must register for VAT in customer’s country when their sales are above a certain threshold. but cars are treated exceptionally – they are taxed in the country of consumption. The importer providing evidence of tax payment to the exporter. more controversially. This raises important issues especially regarding the mutual recognition of professional qualifications (see below) and establishment. Professional Services Many services require face-to-face contact between supplier and user. The ‘interim’ arrangement involves: Zero-rating of exports to other MS (‘intra-community supply’). Price Convergence In a truly integrated market – the ultimate aim of the Internal Market programme prices would differ by no more than costs of transport. especially because of problems of information. Indeed.4). Collecting VAT on imports from other MS (‘intra-community acquisition’) with the importer paying VAT at the home country rate.7. 3.especially marked for branded products. EU15 rose to 15. However. Hence opening up the market to European competition often requires finding regulatory solutions before free movement can be achieved. THE INTERNAL MARKET FOR SERVICES Market services alone accounted for almost half the EU economy by 1990 and the business services sector plays a key role in European integration. 4. in the Euro zone prices have been diverging since 1999 (standard deviation was 13.Chapter 4 3. This presents some obvious problems in an Internal Market without border controls between the Member States. Hence.

National regulators can prohibit or condition cross-border services under the ‘general good’ clause. 73 . Supporters claim that implementation of the new Directive would cut prices in the regulated professions by 7. Country of origin principle: companies have the right to provide services in all Member States as long as they follow the laws of the home Member State. not on the details of service provision. It was estimated by Copenhagen Economics that 600.Chapter 4 National treatment is a key feature of the establishment regime.2. However. holidays and rest periods as well as provisions on health.2%. derogations can block free movement if clearly justified by the public interest. in principle firms established in one Member State had a licence to operate in all Member States under the ‘single passport’ system. 4. Opponents fear that social and labour standards would be undermined. if the objectives of regulation are the same in the two countries concerned. even if the conditions under which it supplies are different between the two territories. In practice. The two main elements were: Establishment of subsidiary: firms would no longer need to duplicate the requirements that they already fulfil in the home country. and the absence of accounting standards and full tax harmonisation obstructs the opening of branches of financial firms in other countries. Major efforts to integrate the Internal Market occurred only after the ending of exchange controls in the 1980s. Moreover. The essential features were: That approximation of regulations was focused on the soundness of institutions via prudential regulation and supervision. The Commission made a major initiative to open up European services markets in January 2004 (‘Bolkenstein Directive’).000 jobs would be created and foreign direct investment in services would increase by 34%. A services supplier cannot normally be prevented from providing services in another Member State. by 2008 there would be an electronic system. and a single point of contact would be established where the firm can complete the bulk of procedures. Mutual recognition meant that prudential regulation was minimised – there was home country control. Financial services By the 1970s financial services firms had the right to establish in other Member States but under host country control. the posted workers’ directive obliges companies posting workers to other EU states to apply the receiving country’s rules on minimum wages. However. gender equality standards and other rules. the free movement of financial services under the single passport had limited impact. Restrictive national legislation and administration could therefore stifle competition from suppliers based in other EU countries. the freedom to supply can even override derogations under Art 46 (old 56). safety and hygiene at work. controls are lacking in the home country and the action is proportional.

Moreover.Chapter 4 Financial services: banking In1989 the Second Banking Directive introduced a passport system for banks – once established in one EU country a bank may operate throughout the EU under home country regulation.1. FREE MOVEMENT OF CAPITAL AND LABOUR The Internal Market programme provided for the free movement of capital and persons. Italian Finance Minister Siniscalco declared “with rare exceptions. Some minimum approximation of prudential rules regarding international securities transactions and 74 . hence the controversy in 2005 over the alleged blocking of foreign takeovers of Italian banks. There remains a fiscal problem in that national taxation of savings and capital vary. The ‘single passport system’ has had little impact because the contract law is that of the insurer. However. A host country can apply legal provisions “which are justified on the grounds of the public good”. Financial services: securities The removal of exchange controls. cross border trade has not expanded much because of limitations of the 1993 investment services directive. The economic rationale for this is that in an integrated market. All restrictions have now been removed so that interest rate differentials are very small even in the long term in the euro zone. new technology. the main way in which foreign banks can compete is by takeover (and in future the Internet). Financial services: insurance The insurance sector is characterised by fairly strict regulation and supervision and high switching costs for consumers. cooperation between national supervisors is ineffective and a number of technical and legal barriers remain. this ensures that output in the European economy is maximised. 5. A directive on the taxation of savings income finally became effective in January 2005. 5. 5. International securities transactions Free movement alone is insufficient to generate an integrated market. banking systems are still all national”. Member States must either agree to minimum tax rates or to the exchange of information. These are addressed in the Financial Services Action Plan (FSAP). some Member States retained capital and exchange controls. Since the returns they earn reflect their productivity. labour and capital will move to where they have the highest return. and the introduction of the euro have had a major impact on securities markets. Financial capital Until 1988. in particular it is extremely difficult to sell life assurance across borders.2. Solidarity and service are more important than price competition and innovation. However.

and then apply mutual recognition. though this varies widely across the sub-markets. to move freely to take on an offer and to remain after the job has terminated. which operate in two or more Member States. dealing with financial statements. so that migrants cannot. Mutual recognition of qualifications is also critically important. A better approach is to agree on objectives. The Financial Services Action Plan (FSAP) set out 42 measures to achieve this of which 93% were agreed within the mid-2004 time limit set by Heads of State and Government: In particular. there is relatively little EU legislation regarding firms. Much progress has been made in financial market integration. The Transparency Directive. the tax system for cross border mergers. Cross border direct investment Mergers and acquisitions across borders within the EU increased rapidly after the establishment of the Internal Market. the EU labour market is poorly integrated. abolition of discrimination based on nationality within EC and the principle of “national treatment”. set minimum EC requirements. However. The ‘Old Approach’ required a detailed specification of equivalents. This entailed lengthy negotiations on details with the regulations tending to be captured by professional associations. especially because the host country controls conditions of employment. The self-employed also have freedom of movement. including approximation of labour market legislation (e. several directives have been agreed: The Financial Instruments Markets Directive (also known as the Investment Services Directive). Existing rules deal with parent-subsidiary taxation. The ‘New Approach’ has helped for teachers. The Directive on Takeover Bids. on hiring and firing) and union wide access to social security. 5.Chapter 4 home country control (as in banking) are also needed. Hence EU workers are entitled to accept job offers throughout the EC. and interest and royalty payments.3. A wide range of actions would be necessary to create a truly integrated market. Some progress has been made on higher education diplomas. setting rules under which investment banks can compete with stock exchanges.g. However. 5. Free movement of labour The Treaty of Rome in Art 48 specifies “freedom of movement for workers” (achieved by 1968).4. There are wide differences in nation corporate tax rates and attempts over 30 years to create a ‘European Company Statute’ to facilitate cross-border 75 . for example. undercut host country minimum wages.

int/comm/dgs/internal_market/index_en.htm DG Internal Market: http://europa. Art 295 TEC says “the Treaty shall in no way prejudice the rules in Member States governing the system of property ownership”.int/comm/internal_market/publications/index_en. Also the European Patent Treaty from 1973 helps to cut search costs by centralising the application and registration procedures for many European countries in the European Patent Office.int/comm/internal_market/index_en. but this is still under discussion. However. Only a handful of countries have so far implemented the rules.htm#tran spositions – – – 76 .eu. trademarks etc.eu.Chapter 4 operations have yielded only a watered down version which entered force in 2004. Internal Market: http://europa.int/comm/secretariat_general/sgb/droit_com/index_en.htm Publications European Commission on Internal Market: http://europa. The Commission proposed a Community patent in 2000.eu. while retaining national patent laws. This gives unlimited autonomy to national patents.htm Calendar for Transposition of Directives and Progress in Notification of National Measures Implementing Directives: http://europa. The internal market in property rights has made only slow progress.eu. Relevant official documents and information can be found at the following websites: – European Commission. the exercise of property rights “to maintain or affect artificial partitions within the common market” can be combated under the rules on ‘measures with equivalent effect’.

Chapter 5 CHAPTER 5 TRANSPOSITION AND IMPLEMENTATION OF THE INTERNAL MARKET ACQUIS . and later at the stage of approving the draft by the Council of Minister itself. If there is no link between a draft law and EU law. at an initial stage the Secretary is usually giving only working ‘remarks’. only selected issues will be discussed. The Prime Minister chairs this Committee. its Member States and Poland in 1994. Poland. The Secretary is obliged to give opinions on compliance of a draft law with EU law. the Secretary is not responsible for preparing draft laws. which concerned the screening of Polish law with a view to detect and eliminate barriers to free movement when Poland becomes a Member State. the opinion may be provided at the initial stage of the legislative process. the opinion of the Secretary is compulsory at the stage of approving the draft by the Council of Ministers’ European Committee. This obligation became more and more important in the year just before Poland’s accession to the EU. The Committee was set up in 1996 pursuant to the Law on the Committee for European Integration. However. 77 . However. In Poland.EXPERIENCES OF POLAND Grzegorz Lang* 1. THE TRANSPOSITION AND IMPLEMENTATION PROCESS IN POLAND The obligation to approximate national law to EU law has been laid down in the Europe Agreement. signed between the EC. INTRODUCTION This chapter gives an overview of procedural arrangements and legislative solutions adopted to facilitate the transposition and implementation of the Internal Market acquis in Poland. Usually. Obviously. the obligation to verify the compliance of drafted laws with EU law is entrusted with the Secretary of the Office of the Committee for European Integration (UKIE). Warsaw. the Secretary was responsible for preparing a so-called ‘Horizontal Law’ in early 2004. 2. the compliance with EU law is unquestionably one of the most stable realities in the Polish legislative process. Office of the Committee for European Integration. * Senior Specialist at the Department of European Union Law. Otherwise. After 1st May 2004. since the Internal Market acquis encompasses a massive amount of legislation.

3. As it turned out. the mere statement of freedom of movement was not enough to establish a true Common Market for goods. it is obliged to explain reasons of doing so.Chapter 5 The Secretary gives also his opinions during readings in the Polish Parliament. both to governmental drafts and drafts of the Parliament or the President. The Polish ‘umbrella’ law Article 28 of the EC Treaty provides for the freedom of movement of goods. It obliges the Government to present EU documents to the Sejm (lower chamber) and the Senate (upper chamber). The Government is obliged to present draft EU laws. 4.1. and other documents concerning Poland’s membership in the EU. Although there is no express obligation. The European Union Committees of both chambers may give non-binding opinions and recommendations on presented issues. This positive opinion should be achieved at latest when the draft law reaches the stage of the Council of Ministers’ European Committee. This law entered into force on 31 March 2004 and has the objective to include the Polish Parliament in Poland’s activity in the legislative process in the EU. 4. The formal opinion of the Secretary accompanies each revised version of the draft law until the final voting of the draft takes place in Parliament. the Government does not accept drafts without a positive opinion of the Secretary of the Committee. the Council in 1985 called for a ‘new approach’ to technical 78 . When the Government does not follow the Parliament’s position. THE 2004 POLISH LAW ON CO-OPERATION One of the final acts of law that was adopted with the view to prepare Poland to membership in the EU was the Law on Co-operation of Council of Ministers with the Sejm and the Senate on matters related to the Membership in the European Union. DEALING WITH THE TRANSPOSITION OF “NEW APPROACH DIRECTIVES” IN POLAND The following part will focus on some examples of legislative techniques adopted in Poland to facilitate the transposition and implementation of the Internal Market acquis. Similarly very detailed harmonised EC legislation did not ensure this goal. The Law on Co-operation provides that the Government must submit laws transposing EU legislation no later than three months before the deadline for transposition expires. draft positions of Poland in negotiations in EU bodies. Therefore.

Under this scheme.2. Not from the outset. whereas major legal solutions should be embodied in the acts of Parliament. 7. regulations and administrative provisions of the Member States relating to construction products. 5 Council Directive 93/42/EEC of 14 June 1993 concerning medical devices. the Polish lawmakers have chosen to adopt a single ‘umbrella law’ with a so-called ‘enabling clause’ which makes it possible to adopt single regulations covering one particular directive and which establishes also common institutions (e. 79 .1 Council Directive 90/385/EEC of 20 June 1990 on the approximation of the laws of the Member States relating to active implantable medical devices. not all directives that were supposed to be transposed under the ‘umbrella’ law require CE marking. Although ‘new approach’ directives share a number of common features.7. 11. 1. 2 For example. p.12. construction products fall under the responsibility of the Ministry of Infrastructure whereas machinery is under the responsibility of the Ministry of Economy. From the very beginning the ‘umbrella law’ also excluded Directives concerning medical devices5. the Marine Equipment Directive3 was excluded form the scheme.1993. OJ L331. 1 Council Resolution of 7 May 1985 on a ‘new approach’ to technical harmonisation and standards. p. OJ C 136.g.1998. despite the diversity of ‘new approach’ directives. p. 17.1997. OJ L 46.1. First of all. The Construction Product Directive4 was also excluded from the scheme (except in respect of market surveillance which is not harmonised). 25. the national legislation had to find common solutions that would interfere to the least possible extent with various administrative traditions2. but during inter-ministerial consultations. which are subject to common conformity assessment procedures. Hence.2.12. OJ L169. In addition most ‘new approach’ directives envisage that compliant product must bear CE marking.Chapter 5 harmonisation1. OJ L189. The fact that they differ posed a considerable challenge.1990.7. on market surveillance) which are needed for the implementation of more than one directive. As different groups of industrial products are governed by different ministries. 12. OJ L40. p. This problem was solved by including in the relevant implementing regulations the possibility or the obligation to provide CE marking. 3 Council Directive 96/98/EC of 20 December 1996 on marine equipment. since in Polish legislative culture technical norms should be contained in regulations. 20. Also it does not provide for CE marking. In this case the formal reasons for exclusion were lack of presumption of conformity and provisions concerning the exhibition of non-complying products on exhibitions and fairs. 4 Council Directive 89/106/EEC of 21 December 1988 on the approximation of laws.06.1985. 04. 17. as amended. p. Directive 98/79/EC of the European Parliament and of the Council of 27 October 1998 on in vitro diagnostic medical devices. p. In 1999 the European Commission issued the Guide to the Implementation of Directives Based on New Approach and Global Approach in order to improve the implementation and application of ‘new approach’ Directives. EC directives instead of providing for detailed technical standards (‘old approach’) provide only for essential requirements.1989. they differ in many respects as well. The primary reason was that it employs various international documents instead of only essential requirements.

protecting consumers) and they are proportional. substantive part of implementing regulations. the Polish ‘umbrella’ law provides for a common model of market surveillance. 5. Market surveillance Another issue connected with the implementation of ‘new approach’ directives was market surveillance.3 Transposition of annexes Quite another problem in transposition of ‘new approach’ directives in the past was the transposition of annexes to the directives.2. DEALING WITH THE PRINCIPLE OF MUTUAL RECOGNITION During the pre-accession period most attention has been paid to the transposition and implementation of directives.g. [1979] ECR-649). namely with the principle of “mutual recognition” as set out in Casis de Dijon case-law of the ECJ6. a clear risk persists also after accession as regards the adoption of EC-law violating regulations. As very often civil servants responsible for the transposition of directives are not the same as those which prepare other pieces of regulations. one should not forget more general problems of EC compliance.Chapter 5 4. A good example in this respect is the Polish draft act on fire-fighting equipment. However. As already mentioned above. even though various goods lay within competencies of various ministries and services. The principle can be summarised as allowing Member States to attach to the manufacturing and distribution of goods certain requirements provided they aim to protect important values (e. which means that they do not exceed what is necessary to achieve their objective. 6 Case 120/78 Rewe-Zentral AG v Bundesmonopolverwaltung für Branntwein. Market surveillance is not harmonised by EU law. but had to be in the main. which provided for domestic certification without the recognition of certificates from other Member States and EEA-States. this piece of legislation is now under way to be changed before it enters into force. With the benefit of hindsight it should rather be recommended to plainly translate the original texts of an annex without any alternations. 4. Due to the opinion of the Polish Office of the Committee for European Integration. However it plays a crucial role in the proper application of EU law. This transposition required adjustments to Polish legislative traditions. For example. conformity procedures were not allowed to be in the annex. 80 .

included over 70 changes to Polish Law.parties to the agreement on European Economic Area”. The whole jurisprudence was screened on the basis of ‘obstacle by obstacle’ approach. They were later subjects of the “horizontal law”. it confirmed that certain typical clauses should be included in future laws. academic textbooks and reports of the ECJ. it shall be construed to mean also Member States of European Free Trade Agreement . On the basis of each judgement the Department of European Union Law of the Office of the Committee for European Integration prepared a fiche. 1a: “Whenever in the Law the Member States of the European Union are used. To perform this task two inter-ministerial groups have been established: One responsible for jurisprudence in the area of freedom of movement of goods and a second for the area of freedom to provide services and freedom of establishment. One of the most common changes was the replacement of the expression “European Union” or “European Community” with the expression “European Economic Area”. For example in the Law on Insurance Intermediaries. etc). Rather. and if any legislative changes were deemed to be necessary. The collection of jurisprudence was compiled using Commission’s Guidelines to jurisprudence. In total about 70 fiches were prepared. After this analysis the Office of the Committee for European Integration together with other ministries prepared three reports concerning respectively the freedom of movement of goods. In response to the card. the freedom to provide services and the freedom of establishment. the notion of “Member States of the EU” was to be deemed to include “Member States of the EEA”7: The second typical solution in the “horizontal law” was the inclusion of series of clauses 7 Polish Law on Insurance Intermediaries (2002). The screening did not detect any particular barriers.Chapter 5 6. The Office of the Committee for European Integration was responsible for preparing fiches and ensuring organisational issues. The ECJ’s or the Court of First Instance’s interpretation. officially called Law on Amendments and Repeal of Certain Laws in Connection with the Membership of the Republic of Poland in the European Union (20 April 2004). Such a fiche consisted of: A brief description of the case. This “horizontal law”. 81 . Each fiche was accompanied with a so-called “Information Card”. THE POLISH “HORIZONTAL” LAW During Poland’s membership negotiations at the Subcommittee on Internal Market in March 2004 the European Commission requested the Polish Government to screen Poland’s legislation in respect of its compliance with Internal Market jurisprudence of the ECJ and Court of First Instance and detect any possible obstacles to the free movement. art. The outcome of the screening was sent to the European Commission. An indication of the field of application (insurance. each Ministry had to answer if there was a similar barrier existing in Polish law. The directors of the departments of the Ministry of Economy headed the screening groups. A factual background.

Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 (now Art.1(iii) and Article 63. Since accession. they are included in international agreements concluded by the EC with countries like Turkey. the decision indicated that the President of the Office of Protection of Competition and Consumers (OCCP) should be the monitoring authority in Poland. The major procedural institution of the EC State aid law is the “notification”.2001. Although the decision did not provide that decisions taken by the OCCP and the European Commission are of binding nature. The law included a number of provisions to repeal Polish provisions that repeated in essence provisions of EC regulations.1999. Poland’s Europe Agreement in Article 63. the Association Council decided to adopt implementing rules on the provisions on State aid referred to in Europe Agreement8. The third most common amendment was the introduction of so-called “mutual recognition clauses”. Other important adjustments concern for example the introduction of other identification numbers than the Polish Personal Identification Number (PESEL). 86 and 92 of the Treaty establishing the European Community. On the basis of this provision. state aid is regulated by Community rules and is dealt with as an exclusive competence by the European Commission. State Aid is entirely managed by the European Commission. 1). These clauses are part of the Internal Market acquis and concern especially the manufacturing and distribution of goods. issues connected with state aid in Poland are regulated in the Law of 2004 on Procedure in Cases concerning Public Aid.88) of the EC Treaty (OJ L 83. OJ L215. is the EC policy on State Aid.Chapter 5 enabling proper application of EC regulations in Poland. DEALING WITH STATE AID Another Community policy. 9. which is realised primarily by means of regulations and not directives.2 provided that the impact on trade with the Community of public aid in Poland shall be assessed on the basis of criteria arising from the application of the rules of Articles 85. 7. p 39. 9 8 82 . Compared to other EU policies. it introduced EU State Aid rules in Poland. The “horizontal law” also introduced into Polish law a standardised reference to the implemented directive. Among others. p. Other provisions in the “horizontal law” indicated institutions responsible for application of regulations and provided for necessary procedures. 27. which is a number of identification card of Polish citizens.3. Currently.8. The Council Regulation of 19999 provides as follows: Decision No 3/2001 of the EU-Poland Association Council.

Under Polish Law. in Acts of the Council of Ministers (Regulations and Resolutions). The Commission shall inform the Member State concerned without delay of the receipt of a notification. The following scheme illustrates the procedure in Poland for preparing notification of aid to the European Commission. In Poland an “aid scheme” may be included. Besides.Chapter 5 Article 2 Notification of new aid Save as otherwise provided in regulations made pursuant to Article 94 of the Treaty or to other relevant provisions thereof. The first step is the preparation of an aid by the author of the scheme (public authority). among others. The decision to notify a scheme or not to notify lies with the Council of Ministers. in an Act of the Parliament (Laws). At the same time. the President is responsible for representing the Republic of Poland before the ECJ and the Court of First Instance in cases linked to public aid. The public authority has to apply for an opinion on compatibility of an aid with the Common Market to the President of the OCCP. According to the Regulation 659/1999 the expression “aid scheme” means any act on the basis of which. which is not linked to a specific project. may be awarded to one or several undertakings for an indefinite period of time and/or for an indefinite amount. individual aid awards may be made to undertakings defined within the act in a general and abstract manner and any act on the basis of which aid. as well as in Local laws. in Regulations of Prime Minister and Ministries. the scheme is forwarded to the Council of Ministers. any plans to grant new aid shall benefited to the Commission in sufficient time by the Member State concerned. without further implementing measures being required. and within the framework of aid scheme. The Council of Ministers takes a decision upon 83 . the process of notifications of draft “aid schemes”. The aid may be granted individually. drafts of individual aid and drafts of restructuring aid is centralised with the President of the OCCP.

Once it has been established. the European Commission sent to the Office of Public Procurement its remarks on the Polish Law on Public Procurement. the relevant ministry must prepare a draft position on the alleged infringement of EC law. Every ministry is obliged to provide the Office of the Committee for European Integration with relevant information about proceedings initiated against Poland by the services of the European Commission. Also the Office of the Committee for European Integration is obliged to share with the relevant ministry any information about such proceedings. the President – through the Permanent Representation of Poland to the European Union – notifies the scheme to the European Commission. 8. The Prime Minister then forwards the draft to the President of the OCCP. they are subjects of compulsory opinion of the President of the OCCP. When a position on the alleged infringement is agreed between the involved ministry or ministries and the Office of the Committee for European Integration. for example. this position together with information on the Commission’s position are submitted to the European Committee of the Council of Ministers for approval. However. Poland so far has had no infringement proceeding under Article 226 of the EC Treaty. In 2004.12. that the Commission is conducting proceeding against Poland. The procedure was adopted by the Council of Ministers on 28. Since “aid schemes” are normative acts. already before its accession to the EU Poland prepared a procedure to follow in case an infringement procedure is launched by the Commission. HANDLING EC INFRINGEMENT PROCEDURES (ARTICLE 226 EC TRETAY) IN POLAND Before the Commission is referring a case for infringement of EC law by a Member State of to the ECJ under article 226 EC Treaty. The Committee is also deciding on further steps aimed at closing the informal proceeding by the European Commission. they are effectively subject to double control. In Poland a special process has been set up governing the conduct of the public administration during this informal procedure. the Marshal of the Sejm forwards the draft law to the Prime Minister. This jointly prepared document was accepted by the European Committee of the Council of Ministers and then sent to the European Commission. Finally. This double control is very often desired as quite often a legal act envisaging aid is not limited to State aid aspects only. In case of acts of Parliament (Laws) granting an aid. Those remarks were later analysed by both the Legal Department of the Office for Public Procurement and the European Law Department of the Office of the Committee for European Integration. First they go through the usual legislative procedure. where the Office of the Committee for European Integration examines their compliance with the EU law for European Integration.Chapter 5 presentation of the President of the OCCP. Secondly. an informal procedure is launched by the Commission.2004 and can be illustrated by the 84 .

certain law firms have been contacted to establish their readiness and competencies to assist the Polish Government. the European Commission addresses its correspondence to the Permanent Representation of the Republic of Poland.Chapter 5 following scheme: According to the general rules governing diplomatic contacts in the EU. As the situation stands now. However. the Polish administration has not yet received the request to submit observations. 85 . Then. because at this stage this involves only Member States’ courts. The draft response. A Ministry in close co-operation with the Department of European Law of the Office of the Committee for European Integration is preparing a draft response to the services of the Commission. before it is sent to the Commission. DEALING WITH PRELIMINARY RULINGS (ARTICLE 234 EC TREATY) The first request from Polish courts for preliminary ruling under Article 234 EC Treaty has been sent only in mid-June 2005. However. is formally approved by the European Committee of the Council of Ministers. an application of the European Commission is forwarded to the Secretary of the Committee for European Integration. Poland presented orally its view in one case concerning the accumulation of penalties for breach of EC law. there is no extensive experience in this field. In this case the Undersecretary of State did the presentation. Poland will rather not resort to private law firms in the case of direct participation in Court procedures. acting as the Agent of Poland. On another occasion. who. a senior lawyer from the Department of European Union Law presented orally Poland’s observations in the EFTA Court. 9. Since Poland has only once been involved at the oral stage of a procedure before a Community Court. The response is then handed down to the Secretary of the Committee for European Integration. sends it to the European Commission. The request for observations under 226 EC Treaty is sent to the relevant ministry. However.

it is sufficient. One example is case C-410/04 ANAV. the Offices’ position would seriously be undermined. The Polish State Forest Enterprise Directives on public procurement provide that a entity is obliged to follow public procurement provisions in the following cases: when the entity is established for the specific purpose of meeting needs in the general interest. This position can be different only in the case the local authority exercises over the person concerned a control which is similar to that which it exercises over its own departments and. in close co-operation with the other two Offices prepared Poland’s observations that municipalities should always follow rules on public procurement.1. in principle. Polish law on this topic is not very precise. since the day of accession. at the same time. The problem in this preliminary ruling occurred out of an interpretation given of an ECJ judgment in Case C-107/98 Teckal10. where the Tribunale Administrativo Regionale per la Puglia in Italy requested a preliminary ruling concerning Directive 93/36/EC on public supply contracts. If the ECJ would rule that municipalities are exempted from the procedures when awarding contracts to its wholly-owned companies. 10. Polish authorities receive numerous demands to submit observations in cases of preliminary rulings requested by courts of other EU Member States. That case was particularly important for Poland because many local authorities are also founders and sole shareholders of utility companies. However. 86 . which is legally distinct from it. Another request concerned the application of Article 86 EC Treaty on special rights in the context of public procurement. the position of the Office of Protection of Competition and Consumers and the Office of Public Procurement is that local authorities should always follow public procurement procedures. This provision is sometimes construed as allowing municipalities to award public contract to its companies without observing rules on public procurement. when it does not have an 10 [1999] ECR I-8121. In this case the Bari Town Council awarded directly a contract for city transport to its 100% owned company AMTAB Spa. if the contract was concluded between a local authority and a person. In this case the ECJ ruled that in accordance with Article 1(a) of Directive 93/36. if that person carries out the essential part of its activities with the controlling local authority. That is why the Office of the Committee for European Integration. In particular the Law on Communal Economy (1996) provides that: “Communal economy may be carried out by the entities of self-government in particular in forms of budgetary enterprise or commercial law companies”. even when awarding contracts to their entirely-owned companies. IMPLEMENTING PROCUREMENT LAW ECJ JUDGEMENTS IN EU PUBLIC 10.Chapter 5 However.

or having an administrative. supplies or services contract is not permitted to apply to participate in or to submit a tender for those works.2 The “Fabricom case” The Polish Law on Public Procurement of 2004 provides for grounds of exclusion from the proceeding to award public contract. despite the lack of legal personality – after analysis of the ECJ’s jurisprudence11 – it was decided that in the light of principles and spirit of EU public procurement law – the State Forests Enterprise should be covered by the EU public procurement regime. Polish law envisages an automatic exclusion of contractors who participated in the preparation of contracts. or when its subject to management supervision by those bodies. that it cannot be insolvent show that its lack of legal personality is only accidental. 11 Case C-44/96 Mannesmann Anlagenbau Austria and Others v Strohal Rotationsdruck [1998] ECR I-73. the interpretation given in Fabricom case will be fully reflected in the modified Polish law.Chapter 5 industrial or commercial character. the experience which he has acquired was not capable of distorting competition” is contrary to EC law and the directives on public procurement in particular. regional or local authorities or by other bodies governed by public law. or other bodies governed by public law. 87 . in the circumstances of the case. There is only a narrow exception in the areas of spatial planning. new draft amendments of the Law on Public Procurement change the wording of the provision in question. or regional or local authorities. beginning with Case 31/87 Beentjes. In Poland there is a special entity responsible for maintaining state forests: the State Forest Enterprise. On 3 March 2005 the ECJ in Joint Cases C-21/03 and C-34/03 Fabricom ruled that a national provision to the effect that a “person who has been instructed to carry out research. Hence. 10. after analysis of a series of ECJ judgements it turned out that State Forests Enterprise should rather be covered by public procurement rules. In order to bring Polish law into compliance with the interpretation of the ECJ. In fact although the State Forest Enterprise is a form of an enterprise. managerial or supervisory board. when it has legal personality and when its financed. its nature is closer to a State authority as defined in numerous ECJ judgements. This enterprise is subordinated to the Ministry of Environment and does not have any legal personality. The new wording of the provision includes the requirement to give contractors an opportunity to prove that their participation will not obstruct fair competition. more than half of whose members are appointed by the State. Thus. supplies or services and where that person is not given the opportunity to prove that. experiments. studies or development in connection with a public works. However. by majority by the State. The police functions of the State Forest Enterprise and the fact. paragraphs 25 and 30 to 35.

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that enables everyone to have access to information and entertainment. Definition of SMP operators can only be made after having a clear market definition and market analysis. to get in touch with others regardless of where they are and. where rights and obligations of operators have been defined before hand in the legislation. to search for services and products and buy them on-line. to have access to government services. 1. technology neutral and sufficiently flexible to deal with fast changing markets in the electronic communications sector. * Consultant in Telecommunciations. INTRODUCTION EU Telecommunications policy aims at developing a knowledge based society. Finland.2. telecommunications regulations are sector specific.1. by developing legal certainty in order to support network investments. The framework provides a set of rules that are simple.Chapter 6 CHAPTER 6 EU TELECOMMUNICATIONS POLICY Jukka Kanervisto* 1. aimed at deregulation. 89 . asymmetric ex-ante regulations. Regulatory Objectives of EU Telecommunications Policy The objectives of the new regulatory framework are to encourage competition in the electronic communications markets by removing barriers to competition. 1. The regulatory framework comprises a series of legal texts and associated measures that apply throughout the EU Member States. to education and health services and to achieve maximum benefits for users. Regulatory Principles The main regulatory principles are not only to set a legal framework for the players in the market but also set strong obligations to market players which have been defined as entities having Significant Market Power (SMP). Contrary to ex-post competition regulations. to develop non-discriminatory behaviour and openness and transparency of operations. to improve the functioning of the internal market and to guarantee basic user interests that would not be guaranteed by market forces. by different means.

2. Decisions Directive (2002/21/EC) on a Common Regulatory Framework.in order to achieve economic efficiency in the interests of users and society . p. OJ L 108.37. 30. OJ L 249. Regulations. decisions and recommendations of the 1998 regulatory framework is summed up in Annex 1. was simplified by merging old directives of the year 1998 acquis into 6 main directives. p. p.21. Prior 1998.33. 24.1. Directives. p.2002.2002. Decision 2002/676/EC on a regulatory framework for radio spectrum policy in the European Community (Radio Spectrum Decision).21. p.1. The 1998 Regulatory Framework Full liberalisation of telecommunications came into force in the EU in the beginning of 1998. OJ C 165. p.4.2002. A list of directives. OJ L 108. 31. 11. Directive (2002//77/EC) on Competition in the markets for electronic communications services. Directive (2002/19/EC) on Access and interconnection. the focus of the development of the new framework was convergence of communications. The main aspects of the 2003 Acquis are summed up as follows: 2. OJ L108.2002. steps towards liberalisation of the telecommunications market were taken by the introduction of Directives in specific areas of activities.is one of the main objectives of the EU regulatory framework for 90 .2002. THE 2003 REGULATORY FRAMEWORK The 2003 Regulatory Framework. p.09. 24 April 2002. In addition to simplification of the legal structure. 24. Directive (2002/58/EC) on Privacy and electronic communications. OJ L 201.4. p. Commission Guidelines on market analysis and assessment of significant market power under the Community regulatory framework for electronic communications networks and services. neutrality as regards technology and flexibility as regards the development of the market.2000.12.3.6. OJ L 336. OJ L 108. p. 24.7. 17. 24. Regulation (2000/2887/EC) on Unbundled access to the local loop.Chapter 6 1. Promoting competition Promoting competition . Directive (2002/20/EC) on Authorisation.7. which came into force in July 2003.4.4.2002. OJ L 108.51.07. Directive (2002/22/EC) on Universal service and users’ rights.2002.4.

Administrative charges and usage fees Member States may impose two types of levies on providers of electronic communication networks or services. Promoting competition is one of the primary objectives for NRAs. Administrative charges are intended to cover the costs of the national regulatory authorities for managing the general authorisation system. In principle. policing competition in the market and ensuring the provision of universal service. Individual rights of use For three types of rights and two types of obligations. that with ex-ante regulation enable transfer from monopoly environment to competition and ensure that once competition is effective on a specific market. Market Entrance For the provision of telecommunications services. Compliance with conditions – Proof of compliance: Under the new Authorisation Directive it will no longer be possible for regulators to require operators to provide proof of compliance with the conditions under the general authorisation before they can start their business. numbers and for rights of way. The new framework contains pro-competitive incentives. obligations related to significant market power (SMP) and obligations relating to universal service provision. namely administrative charges and usage fees. Such usage fees are intended to ensure the optimal use of these resources and should be proportionate to that purpose. The 2003 framework aims at very light authorisation regime as described shortly in the following. 91 . National regulatory authorities (NRAs) play a major role in the new regulatory regime.2. namely: rights of way. – Regulatory Authorities may ask for notification but the service provider does not have to wait reply to this notification. the authorisation regime should be light and easy in order to remove barriers of market entrance. – Rights and obligation are defined in the legislative acts. ex-ante regulation has to be withdrawn. rights to use radio spectrum. together with the national competition authorities. General authorisation – There is no need to obtain an explicit administrative decision before starting the business. Usage fees may be imposed for rights to use radio frequencies. an authorisation is needed. 2.Chapter 6 eCommunications. regulators may only require proof of compliance on a case-by-case basis when they have received a complaint or have other reasons to believe that conditions are not complied with. assigning of rights of use. individual regulatory decisions will remain necessary in most cases. Based on the experiences from the 98 regulatory regime. rights to use numbers.

aiming to prevent SMP operators from misusing their power in the market. – Appeal: Undertakings have a right to appeal to an independent body against all decisions taken by the national regulatory authority that effect them. Guidelines for market definition have been published by the Commission but the final definition and market analysis has to be carried out by the National Regulatory Authority. fees etc. – Consultation: When a Member State intends to make changes in rights. a market definition and market analysis have to be carried out. If the national regulatory authority does not find the provider’s response satisfactory. This is a basis for the asymmetric ex-ante regulation. However. a financial or other penalty may be imposed. Such public consultations should allow interested parties at least four weeks to express their opinions except in exceptional circumstances. Market analysis In order to find out market players that may have Significant Market Power on the market. procedures. he must notify this to the provider concerned and allow one month for the provider to solve the problem or to explain why he does not agree with the national regulatory authority’s assessment. – Publication: All relevant information on rights. they are obliged to consult interested parties before they adopt any changes. fees and decisions relating to the general authorisation and to rights of use is published in a way that makes it easily accessible for all interested parties. 2. during the appeal the measure taken by the national regulatory authority will remain in force. Transparency of regulation – Clarity of structure: The replacement of individual licences by a general authorisation will significantly improve the transparency of the regulatory regime applied to the electronic communications services and networks sector. masts or antennas. national regulatory authorities must make reasonable efforts to ensure that all relevant information (rules. obligations or procedures that are applicable to providers of electronic communications networks and services. conditions. charges.3. 92 . procedures. – Local levels of government: To facilitate the task of undertakings who need to install cables. for instance by creating a website with links to information held at local levels.) is available through a user friendly overview.Chapter 6 – Breach of conditions: When a national regulatory authority considers that a service or network provider is in breach of a condition.

or else the use of a conversion function that can map between different systems. Interoperability of services: Interconnection of networks does not guarantee interoperability of services provided over those networks. electronic communications services and associated facilities and services. terms and conditions for interconnection to the incumbent operators network are critical for successful market opening. 2. Interoperability of digital television: There are technical obligations for equipment manufacturers concerning the use of European scrambling algorithms. As defined in the Access Directive. Access is a generic concept covering any situation where one party is granted the right to use the network or facilities of another party. interconnection is a special form of access. and provision of SCART sockets on analogue set with a visible diagonal greater than 42 cm. or to access services provided on other networks.5. Interoperability of services requires the use of common standards and protocols. even if the market would not provide it. regardless of the transmission mode. Providers of digital interactive TV services on digital interactive TV platforms are encouraged. Universal Service Obligation (USO) When voice telephony was liberalised in 1998 to complete the overall liberalisation of the telecommunications sector. In the event of a dispute. Member States are required to encourage the use of standards as a means of ensuring interoperability of services and freedom of choice for users. to use an open application program interface (API) . on either an exclusive or shared basis. In a newly liberalised market. Interconnection of and Access to Networks Interconnection is an essential element in any multi-network environment. providers of all enhanced digital TV equipment deployed for the reception of digital interactive television services on interactive digital TV platforms are encouraged to comply with an open API. The Commission has published in the Official Journal of the EU (OJ) a list of standards and/or specifications to serve as a basis for encouraging the harmonised provision of electronic communications networks. the national regulatory authority may intervene.4. This 93 . It allows users on one network to communicate with users on other networks.Chapter 6 2. All operators of public communications networks in the EU have both a right and a duty to negotiate interconnection with each other. it was agreed to maintain a safety net to ensure that for users a set of basic telecommunication services would always be available at a determined quality and an affordable price.

including the telecommunications sector. Access to publicly available telephone services. Consultation with interested parties. Contracts. 2.6. Facilities for disabled users and those with special social needs. service providers. Digital Broadcasting The mission statement of the European Commission’s DG Information Society/B1 Unit (Policy Development and Regulatory Framework) is to develop together with sector players (users. 2. Availability of public pay telephones. Specific provisions as defined in the Universal Service Directive (USD): Tariff Transparency. Requirements/obligations exist or may be set by the NRA on Quality of service. Ensuring the provision of a defined minimum set of services to all end-users at an affordable price comes at a cost. and thus to achieve for all users a choice of communications services of high quality at fair prices. Quality of service. The Commission also publishes a regular update on inventory of Community acts relating to consumer affairs and consumer health protection. operators. the Distance Contracts Directive and the Misleading Advertising Directive. Availability of a directory information service. 94 . digital radio and TV and next generation networks) and to develop a regulatory environment that is conducive to innovation. affordability of services. Thus. Consumer protection The provisions of horizontal consumer protection apply to all Services of General Interest.7. National Regulatory Authorities and Member States) policies for a converging market (that includes telecoms.Chapter 6 set of basic services was called ‘universal service’. investment and competition. free of charge 112 emergency services and provision of Directory services. there are provisions in the Universal Service Directive which allow designated Universal Service providers to be compensated for the specific net cost involved where it is demonstrated that the Universal Service Obligations can only be provided either at a loss or at a net cost falling outside normal commercial standards. The relevant legislation includes the Unfair Terms in the Consumer Contracts Directive. which provides the basic information concerning binding and nonbinding measures relating to consumer protection. availability of services. The universal service incorporates the right of: Connection to the public telephone network at a fixed location.

In 1997 the EU adopted a Directive 97/66/EC on the protection of privacy and the processing of personal data in the telecommunications sector.8. The new Directive 2002/58/EC on the processing of personal data and the protection of privacy in the electronic communications sector includes provisions on security of networks and services. No obligation exists for them to follow the timelines before the membership. As part of the new regulatory framework for the electronic communications sector. businesses and any other organisations or individuals engaged in handling personal data. calling line identification.Chapter 6 Out-of court dispute resolution. Therefore. Traffic data. they are not Member States yet and directives enter into force on the first day of their membership within the EU. 95 . Unsolicited commercial communications. Location data. three alternatives exist to aim at reaching the EU legal level by the day of their membership: One step procedure: to implement the Directives in one step. confidentiality of communications. time for transposing Directives into national legislation is defined in the Directive in question. the 1997 Directive has been updated to take account of technological developments and to ensure that the same level of privacy protection will be granted for all communications over public networks regardless of the technology used. This Directive established the basic principles for the collection. Nuisance calls. 3. public subscriber directories and unsolicited commercial communications. translating the principles of the General Data Protection Directive for a number of specific privacy issues related to public telecommunication networks and services. The Directive also created a working party consisting of the independent national data protection authorities in the Member States. Public subscriber directories. The Directive had to be transposed in national law by 31 October 2003 at the latest.1. Spyware and Cookies. Transposing the directives In EU Member States. Confidentiality of communications. Calling line identification. access to information stored on terminal equipment. In 1995 the EU adopted Directive 95/46/EC on the processing of personal data. processing of traffic and location data. Privacy protection In 1981 the Council of Europe adopted Convention 108 for the protection of individuals with regard to the automatic processing of personal data. IMPLEMENTATION OF THE ACQUIS 3. The Directive covers the following aspects: Security of networks and services. 2. Regarding accession countries. storage and use of personal data that should be respected by governments. Emergency calls and Automatic Call forwarding. Alternative dispute resolution.

It has to be kept in mind that the 2003 acquis is a follow up of the 1998 acquis. by ensuring that there is no distortion or restriction of competition in the electronic communications sector. services and associated facilities by ensuring that users derive maximum benefit in terms of choice. 3. – The NRA shall co-operate with the national competition authority and provide 96 . equipment or services. 3. If primary law covers only the framework and gives mandate for the Ministries to approve secondary regulations. – The independence of the NRA by ensuring that the NRA is legally distinct from and functionally independent of all organisations providing electronic communications networks. it shall ensure effective structural separation of the regulatory function from activities associated with ownership or control. If the step changing from the current legislation directly to the 2003 framework is considered too high. by encouraging efficient investments in infrastructure and promoting innovation and by encouraging efficient use and ensuring the effective management of radio frequencies and numbering resources. Mixture of alternatives 1 and 2. The Regulatory Authority – The NRA shall promote competition in the provision of electronic communications network. the step-by-step procedure or a mixture of the one step and the step-by-step procedure could be considered. adaptation of regulations to changing environment is cumbersome because of the timely manner of law adaptation.Chapter 6 Step-by-step procedure: to implement first the 1998 acquis and transpose the 2003 or later framework in a timely manner with EU membership. Roles of Authorities The Member State Member State shall guarantee: – That each of the tasks assigned to the National Regulatory Authority is undertaken by a competent body. Structure of national legislation Structuring of regulations into laws and sub-laws is an item to be considered. price and quality. regulations focus on primary laws and usage of sub-laws would be an exception. – That when retaining ownership or control of an operator(s).3. If this is the case.2. In some countries. the adaptation to a changing environment is much more flexible. It has been a useful procedure to open the market from monopoly to competition and acquire experiences.

numbers that are easy to remember. to the twenty-four requesting countries from the European Conference of Postal and Telecommunications Administrations (CEPT). namely telephone numbers. 3.g. carrier selection codes. transparent and non-discriminatory. market supervision and market analysis of the two Authorities include similarities. e. short codes. A part from cases where the consent of the Competition Authority is needed on before hand (e. interventions of the Competition Authority . from the global country code resource. However.normally take place in the case of market failure. Its functions are based on competition laws.4. Competition Authority A Competition Authority is an independent Authority for the matters of competition.3883 . it is important to guarantee non-discriminatory access to a range of resources that are essential for the provision of these networks and services. Article 27(2) of the Universal Service Directive requires Member States to ensure that all undertakings that operate public telephone networks handle all calls to the European telephone numbering space. radio frequencies and rights of way.contrary to ex-ante regulations of the Regulatory Authority . Main Tasks of the Regulatory Authority The tasks of the Regulatory Authority are defined in the 2003 Directives. including all fifteen members of the EU and nine other European countries. and so-called golden numbers. Member States may decide to assign such numbers or codes via competitive or comparative selection procedures in which case the assignment period may be extended until up to six weeks. Short codes.for the ETNS.Chapter 6 each other with the information necessary for the application of the Directives. IP addresses. deserve special attention as they may represent a specific economic value. protocol parameter and port numbers. Main tasks include the following: Managing public resources To ensure a level playing field for all providers and users of communication networks and services. This establishes a call connection obligation from anywhere in the EU.g. Therefore co-operation of these two Authorities is very useful. Internet domain names. without prejudice to the need for an undertaking that operates a public telephone network to recover the cost of the conveyance of calls on its network. the International Telecommunciations Union (ITU) assigned a distinctive code .g. some mergers). Numbers Numbers must be assigned to any undertaking providing or using electronic communications networks or services within three weeks after receipt of a request. – European telephony numbering space (ETNS) In 2000. 97 . Procedures for assignment must be open. e.

As of 25 July 2003 number portability should also be available for all subscribers to mobile services. Radio Spectrum – Spectrum management In national frequency plans. wireless communication devices etc. TV and radio broadcasting. including the associated services. for instance for remote control devices. Within these blocks no further assignment to individual users is necessary because the risk of harmful interference is minimal due to the very short range of the applications. Portability of so-called non-geographic numbers must be possible both in case of a change of operator and a change of address. The Internet scheme consists of separate names and addresses. In such case the use of frequency is governed by the general authorisation. The IP address on the other hand must reflect the point of attachment and may therefore be temporary. some blocks are earmarked for unregulated or unlicensed use. while remaining on the same location. 98 . Other than this provision. IP addresses are allocated at the regional level to the operators of larger networks on the basis of demonstrated need by one of the RIRs (Regional Internet Registries). mobile communications. A Framework Directive requires EU Member States to coordinate their positions on issues related to numbering. Names and addresses A domain name normally consists of a top-level domain and some lower level domains. the regulatory framework does not impose any requirements in the area of Internet naming or addressing since the current management practices were considered to be adequate in view of the objectives of the framework. satellite communications. navigation services etc. – Unlicensed spectrum Within the national frequency plans. to enable cross-border marketing of products that use regulated or unregulated frequencies and to facilitate cross-border service provision based on frequency usage. naming and addressing to ensure full global interoperability of services. police and emergency communications. Domain names are meant to be fairly permanent and a host. National frequency plans depend to a large extent on extensive international coordination to minimise the risk of harmful interference in border areas. will retain the same name even if it is attached to a different network. blocks of spectrum are allocated for various types of usage. such as military communications.Chapter 6 Number portability Since 2000 all subscribers of fixed telephone services have the possibility to keep their telephone number if they change from one operator to another. End-users acquire addresses from their chosen upstream supplier.

Where this is the case. and for this they usually need rights to install facilities. If as a result of this undertakings are deprived from possibilities to roll out infrastructure. within most blocks. Requests from providers of both public and non-public services should be considered. 99 . These declarations should confirm that the undertaking has submitted a notification as an electronic communications service provider and clarify that any such provider may submit a request for rights to install facilities. – Declarations Article 9 of the Authorisation Directive requires national regulatory authorities to issue declarations to facilitate the exercise of rights to install facilities. transparent. This declaration should avoid any difficulties for operators who used to work under individual licenses and who may be barred from rights to install facilities at local levels of government if they cannot show such a license due to the new general authorisation regime. Where public authorities own the land or buildings concerned. – Co-location and facility sharing Digging up roads to create ducts usually creates inconvenience for the public. spectrum should be assigned on a first come. they are required to consider without delay any request for rights to install facilities on the basis of transparent. However. transparent and non-discriminatory. but differentiated treatment of these two categories is allowed. Rights of Way Providers of communication networks need to roll out infrastructure such as cables. prior public consultation is required to solicit the views of users and consumers on the envisaged limitation. – Limited availability In principle. if the regulator expects that demand will exceed supply within a certain spectrum block. masts. assignment procedures are required to be open. switches etc. Moreover. the selection criteria used for the assignment of a limited number of usage rights must be objective. it may be necessary to determine a limited number of usage rights from the outset. spectrum bands need to be assigned to individual users. Member States may impose obligations on operators who already have facilities installed to share these facilities or the locations where the facilities are installed with newcomers. such rights should be assigned within six weeks after the request has been received. public health or town and country planning. Moreover. that lead authorities to restrict rights to install facilities. non-discriminatory and publicly available procedures. There may be good reasons related to environment protection. masts for cables or antennas may distort the landscape. In such cases. non-discriminatory and proportionate. first serve basis.Chapter 6 – Individual assignment However.

numbers and for rights of way. 2003/311/EC. They may be financed from the state budget. amend or withdraw regulatory obligations accordingly. In 2003 its fees came from Spectrum fees 21. The latter is a payment for the services collecting the TV-license fees from inhabitants of the country (a task dedicated to the NRA). Such usage fees are intended to ensure the optimal use of these resources and should be proportionate to that purpose.9%. Financing of the NRA No special requirement are imposed regarding the financing of the NRA. it is the task of the Regulatory Authority to carry out market analysis on a timely manner.1. assigning of rights of use. Radio transmitter License Fees 15.9%. In the 2003 acquis. independent from state budget. they may be self financing or a mixture of the two. Usage fees may be imposed for rights to use radio frequencies. As an example of the Finnish Regulatory Authority. in total 7 markets have been defined for retail level and 11 markets for wholesale level . Administrative charges are intended to cover the costs of the national regulatory authorities for managing the general authorisation system. 100 . Numbering fees 13. Designation of operators having Significant Market Power Based on the market definition and market analysis. it is the task of the Regulatory Authority to define operators with Significant Market Power. it is a self financed entity.7%. 1 Commission Recommendation of 11 February 2003 on relevant product and service markets within electronic communications sector susceptible to ex ante regulation in accordance with Directive 2002/21/EC of the European Parliament and of the Council on a common regulatory framework for electronic communication networks and services. Postal supervision fees 3. 4.Chapter 6 – Register of procedures Article 15(2) of the Authorisation Directive is also intended to facilitate network roll-out by requiring Member States to establish a user-friendly overview of procedures.9% and Refund from state TV and Radio Fund. Market definition and market analysis In order to be able to determine whether telecommunications markets are effectively competitive or not and impose. PRACTICAL HINTS 4.7%. namely administrative charges and usage fees. Domain name fees 8. Member States may impose two types of levies on providers of electronic communication networks or services. policing competition in the market and ensuring the provision of universal service. conditions and tariffs applicable to rights to install facilities at all levels of government including local levels.

4. CEPT. IRG and standardisation can provide results in two types of benefits. Preparation of implementation in a timely manner Transposition of directives in the national law is only a part of implementation. Firstly. practical numbering arrangement etc. Utilisation of industry working groups In order to be able to regulate the market. CEPT and IRG The active participation in the work of EU. on operators’ network technology. 101 . Regulations have to be implemented in the telecommunications network. needing time for planning and implementation(e. Many of those regulations need extensive changes in the network. A handbook may contain a list of tasks to be inspected. Another advantage is also that operators participating in working groups become committed in the implementation of regulations.Chapter 6 4.g. Planning and implementation of changes have to commence well prior the deadline. The use of the Regulator’s own initiative on an adhoc basis makes the market vigilant and aware of the Regulator’s control power. Such Working groups can be chaired by the Regulator. market information and problem areas defined by operators. Publication of a Supervision Handbook Supervision of the market players in order to find out whether they follow the regulations or not may be based on complaints received by the Regulator or by Regulator’s own initiative. the Regulator needs a lot of information on the market itself. relevant regulations on which the inspection is based.5. New services have to be available at the time the new regulation comes into force. By creation of a supervision handbook. 4. secondly national characteristics. Participation in the work of EU. 4. NRA will become aware on the development of industry.4. implementation of carrier selection/pre selection and number portability).2. a transparent means can be created for an adhoc supervision. They can bring to the Regulator a free of charge expertise. and experiences can be taken into account in the preparation work of new norms. Implementation of regulation impacts directly on the network and can be discussed in industry working groups which are discussion forums without any decision power.3.

1994 – Directive 95/51/EC regarding Cable TV networks. amending Directive 90/388/EEC. 13. p.10 – Directive 94/46/EC amending Directive 88/301/EEC and Directive 90/388/EEC in particular with regard to satellite communications). 22. 24.95. p13 2.7. Dispute Resolution and Appeal process Regulatory decisions can be challenged and appealed. 26. 90. Available personnel resources Efficient and sufficient expert resources on the whole regulatory field is a necessity for an efficient and trustworthy Regulator.96.11.31 – Directive 97/66/EC on the processing of personal data and protection of privacy in the telecommunications sector.10. Competition – Directive 90/388/EEC on competition in the markets for telecommunications services. Data protection – Directive 95/46/EC on the protection of individuals with regard to the processing of personal data and on the free movement of such data. 49 – Directive 96/2/EC on the provisions to open the markets for mobile and personal communication to competition by abolishing all exclusive and special rights in this sector – Directive 96/19/EC on implementation of full competition in telecommunications markets. some common bottlenecks are listed: Price control of Interconnection services One of the major difficulties is the supervision of cost oriented pricing of interconnection services of SMP operators. OJ L 281.1995. OJ L256.10. p. OJ L 192. The burden of proof that charges are derived from actual costs including a reasonable rate of return on investment shall lie with the organisation providing interconnection to its facilities. 23.Chapter 6 4. OJ L74. Bottlenecks In the following. The structure and length of a appeal procedure is of most importance. p.6.List of Directives.3. OJ L24/1 of 30/1/98 102 . Annex 1: The 1998 Regulatory Framework . Decisions and Recommendations: 1.

– Directive 97/51/EC amending Council Directives 90/387/EEC and 92/44/EEC for the purpose of adaptation to a competitive environment in telecommunications OJ L 295. OJ L268 3.90. – Directive 97/51/EC amending Council Directives 90/387/EEC and 92/44/EEC for the purpose of adaptation to a competitive environment in telecommunications. OJ L165. Part II: Accounting separation and cost accounting (08 April 1998).Voice telephony: Directive 98/10/EC on the application of open network provision (ONP) to voice telephony and on universal service for telecommunications in a competitive environment (OJ L101/24 01. OJ C331/32 of 31/12/2002). – List of standards (interim issue. Open Network Provisioning (ONP) . 19. 4.97. – Commission Recommendation of 24 November 1999 on Leased Lines Interconnection Pricing in a liberalised telecommunications market.Chapter 6 3. – Commission Decision of 7 January 1998 on amendment of Annex II to Council Directive 92/44/EEC (98/80/EC).Interconnection: – Directive 97/33/EC on interconnection in telecommunications with regard to ensuring universal service and interoperability through the application of the principles of open network provision (ONP). 103 . .ONP framework: – Directive 90/387/EEC on the establishment of the Internal Market for telecommunications services through the implementation of Open Network Provision. OJ L199/32 26/7/97.10. .04.92. OJ L192.7. 37.98). OJ L117. 29/10/97 p 23. 24. 7.6. OJ L 295. . Licensing – Directive 97/13/EC on a common framework for general authorizations and individual licences in the field of telecommunications services.98 p. 29/10/97. – Directive 98/61/EC amending Directive 97/33/EC with regard to operator number portability and carrier pre-selection.Leased Lines: – Council Directive 92/44/EEC of 5th June 1992 on the Application of Open Network Provision to Leased Lines. – Commission Recommendation on interconnection in a liberalised market: Part I: Interconnection pricing (15 October 1997).5.

12.91. p.1998. OJ L 144.1987. p.21. 8.1990. 45.3 2003. as regards matters within its competence. 25. 81 (GSM). OJ L 204. The UMTS Decision contains provisions for a coordinated and progressive introduction of compatible UMTS networks and services. Mobile and Satellite communications – Council Recommendation 87/371/EEC on the co-ordinated introduction of public pan-European cellular digital land-based mobile communications in the Community.1997. Radio Spectrum – Council Decision 97/838/EC concerning the conclusion on behalf of the European Community. 24. 17.11. 20. of the results of the WTO negotiations on basic telecommunications services.5. p. OJ L 347. – Decision 97/710/EC on a coordinated approach in the field of satellite personal communications services in the EU. – Directive 91/287/EEC on the frequency bands to be designated for the coordinated introduction of digital European cordless telecommunications (DECT) into the Community.05.1.07. 31.6.08. 17. – Council Resolution 90/C 329/09 on the final stage of the co-ordinated introduction of pan-European land-based public digital mobile cellular communications in the Community (GSM).1991. 47. – Decision 2000/1215/EC: Prolongation of the S-PCS Decision until 31. OJ C 329.3. p. p. p. 9. – Directive 90/544/EEC on the frequency bands designated for the co-ordinated introduction of pan-European land-based public radio paging in the Community. 28. 104 . 06.1997. 7.1991. OJ L 196. p. 25. – Directive 87/372/EEC on the frequency bands to be reserved for the co-ordinated introduction of public pan-European cellular digital land-based mobile communications in the Community. 16. OJ L 196.2000.31.87. 23 (ERMES). 14. OJ L 310. – Council Recommendation 90/543/EEC on the co-ordinated introduction of panEuropean land-based public radio paging in the Community. Harmonisation – Decision 92/264/EEC on the introduction of a standard international telephone access code in the Community OJ L137.92.6. 9.12.11. – Decision 91/396/EEC on the introduction of a single European emergency call number.12. – Directive 98/34/EC laying down a procedure for the provision of information in the field of technical standards and regulations. – Decision 99/128/EC. OJ L217. OJ L 144. – Council Recommendation 91/288/EEC on the co-ordinated introduction of digital European cordless telecommunications (DECT) into the Community.1998. December 2003. 18. OJ L78/12. 6. p. p. – Recommendation to promote public wireless broadband services in Europe. 21.85. OJ L 310. 8.1990.Chapter 6 5.7.1990.

p. including the mutual recognition of their conformity.95 p. OJ L 131.1999. 25 March 2003.88. 73. Television – Directive 92/38/EEC on the adoption of standards for satellite broadcasting of television signals. – Directive 99/5/EC The R&TTE Directive contains provisions related to the free circulation and putting into service of radio communications and telecommunications terminal equipment in the EU. 23. OJ L 198/49 dated 27 July 2002.5.5. 9. – Directive 95/47/EC on the use of standards for the transmission of television signals.3.51.11. 27. 20.17. Terminal equipment – Directive 88/301/EEC on competition in the markets in telecommunications terminal equipment. OJ L281. 9. OJ L137. OJ L78/12 .Chapter 6 – Commission Decision establishing a Radio Spectrum Policy Group.92 p. 105 . – Recommendation to promote public wireless broadband services in Europe. 8. – Directive 98/13/EC relating to telecommunication terminal equipment and satellite earth station equipment.

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The Copenhagen criteria. stated that a Candidate Country must be able to take over obligations stemming from the membership. THE ADOPTION OF THE ACQUIS COMMUNAUTAIRE IN GENERAL IN THE PRE-ACCESSION PERIOD The EU has stressed the importance of legal adjustments on many occasions. This very broad notion of taking over the acquis. This chapter deals with experiences of Poland in the implementation of the acquis in general and in the Information Society sector in particular. This schedule specified deadlines for the internal acceleration of work in respect of particularly important laws adjusting Polish legislation to the EU legislation. Warsaw. then replaced by the National Programme of Preparation for Membership1. 4 The Europe Agreement establishing an association between the European Communities and their Member States.ukie. technical rules and standards. On the basis of this Programme a work-schedule on the adjustment of laws was developed. The legal bases for the approximation at that time were article 682 and article 693 of the Europe Agreement4. has been then developed and prioritised in the Commission White Paper of 1995 on the preparation of associated countries of Central and Eastern Europe for the integration in the Single Market of the EU. indirect taxation. implementation and enforcement of the acquis communautaire. the Polish Government adopted the National Integration Strategy. on the one side. Poland shall use its best endeavours to ensure that future legislation is compatible with Community legislation.EXPERIENCES OF POLAND Arkadiusz Plucinski* 1. 2. the way to achieve membership was long and required a lot of efforts of both politicians and civil servants. consumer protection. INTRODUCTION Poland joined the European Union on May 1.Chapter 7 CHAPTER 7 ADOPTING THE ACQUIS COMMUNAUTAIRE IN THE FIELD OF INFORMATION SOCIETY.gov.pl 2 Article 68: The Contracting Parties recognise that the major precondition for Poland’s economic integration into the Community is the approximation of that country’s existing and future legislation to that of the Community. on the other side. Poland. company accounts and taxes. financial services. banking law. 3 Article 69: The approximation of laws shall extend to the following areas in particular: customs law. which was declared by the Government as the date Poland would be ready for joining the EU. The adoption of EU law in Poland proved to be a great challenge for the whole public administration. 1 http://www. and the Republic of Poland. adopted by the European Council in 1993. In response. rules on competition. intellectual property. protection of health and life of humans. 107 . animals and plants. company law. * Director of the European Union Law Department at the Office of the Committee for European Integration (UKIE). transport and the environment. which requires also the incorporation. In Poland the process of law adjustment with EU legislation started in 1994. It was assumed at that moment that about 180 laws had to be passed by the end of December 2002. protection of workers at the workplace. However. 2004. It should be mentioned however that such a list is never a complete list – due to the fact that the law of the EU undergoes a process of permanent changes.

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Both articles had a general and framework character and indicated that Poland was obliged to undertake all possible measures resulting from the approximation of its legislation to the acquis. However, the Europe agreement, an international treaty, was not sufficient to ensure a successful implementation of EU law in Poland. What seemed substantial was the political will to implement EU law efficiently. The process of harmonisation gained further speed after the conclusion of the Three Party Agreement between the Marshal of the Sejm (the lower chamber in the Polish Parliament), the Marshal of the Senate (the higher chamber in the Polish Parliament) and the Prime Minister. This agreement concerned the acceleration of implementation procedures. As a result, the extraordinary Committee for European Law (at present the European Committee in the Sejm) and its equivalent in the Senate were established. Both Committees were competent to adopt draft laws adjusting Polish legislation to EU law (the so called adjustment laws). Contrary to the situation in many Member States, where EU law is transposed by means of secondary legislation, the Polish Parliament was engaged right from the beginning in the process of law adjustment and avoided thus a ‘democratic deficit’. In Poland, the accession negotiations in 1998, followed by the provisional agreement concerning the date of accession (1 January 2003) undoubtedly contributed additionally to the acceleration of the process of implementation of the acquis. The European Council in Feira 2000 showed how important the relation between the progress in negotiations and the speed and scope of law transposition is. The Council indicated that all three factors, transposition, implementation and enforcement determine the success of negotiations. At that time the EU was in a quite exceptional situation of negotiating membership with countries, which were in ‘transition’. Never before had the difference between the current EU Member States and future Member States been so immense and never had it concerned so many and various aspects. A good example is the telecommunication acquis where the difference in market development, particularly in the area of universal service, has been enormous. Therefore, meeting universal service obligations, and in particular the requirement to meet all reasonable requests for access to the public telephone network and to publicly available telephone services at a fixed location, proves more burdensome in some of the new Member States than in the former EU15, due to the lower fixed telephone penetration rate in these countries. Adjustment of the national legal order to EU law is a ‘typical’ process of law adaptation. By adapting laws and regulations that transpose the acquis, a country is bound to accept nearly unconditionally the legal standards that were formulated not only without its presence, but also within a completely different economic and social context. If one can distinguish three phases in the adoption of the EU acquis (formulation, transposition
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and implementation), candidate countries are invited and obliged to participate only in two of them: transposition and implementation. There is only a very small margin of discretion left for a country to take into consideration its economic but also social conditions while constructing a new legal reality. Certainly, there is also a degree of flexibility provided within the acts that are to be transposed. The nature of directives leaves Member States the discretion to choose the appropriate methods and means to achieve the results of directives.

2. TRANSPOSITION OF THE INFORMATION SOCIETY ACQUIS IN THE PRE-ACCESSION PERIOD
For the purpose of this paper the term Information Society acquis refers to: The new electronic communications package of 20025; The postal directive and its amendment6; The e-commerce directive7.

2.1. Negotiations
Poland’s negotiation position in the area of Telecommunications and information technologies (chapter 19 of the Polish negotiating positions) which covered the telecommunications’ and postal services’ acquis fixed the 31st December 2002 as the date on which Poland would be prepared for the accession to the EU in this area. One significant problem with regard to the implementation of the acquis concerned Poland’s ability to achieve the accessibility level of universal telecommunication services.
2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services (Framework Directive), OJ L 24 April 2002, 108, 33; Directive 2002/20/EC of the European Parliament and of the Council of 7 March 2002 on the authorisation of electronic communications networks and services (Authorisation Directive), OJ L.. 24 April 2002, 108, 21; Directive 2002/19/EC of the European Parliament and of the Council of 7 March 2002 on access to, and interconnection of, electronic communications networks and associated facilities (Access Directive), OJ L 24 April 2002, 108, 7; Directive 2002/22/EC of the European Parliament and of the Council of 7 March 2002 on universal service and users’ rights relating to electronic communications networks and services (Universal Service Directive), OJ L 24 April 2002, 108, 51; Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (Directive on privacy and electronic communications), OJ. L.. 31 July 2002, 201, 37; Decision 676/2002/EC of the European Parliament and of the Council of 7 March 2002 on a regulatory framework for radio spectrum policy in the European Community (Radio Spectrum Decision), OJ L 24 April 2002, 108, 1; Commission Directive 2002/77/EC of 16 September 2002 on competition in the markets for electronic communications networks and services (Competition Directive), OJ L 17 September 2002, 249, 21. 6 Directive 97/67/EC of the European Parliament and the Council of 15 December 1997 on common rules for the development of the internal market of Community postal services and the improvement of quality of service; Directive 2002/39/EC of the European Parliament and of the Council of 10 June 2002 amending Directive 97/67/EC with regard to the further opening to competition of Community postal services 7 Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (‘Directive on electronic commerce’), OJ L 178, 17/07/2000. 109
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Harmonisation of Polish law with the acquis was based on the Telecommunication Law and secondary legislation prepared by the competent Ministry (at that time it was the Ministry of Posts and Telecommunications). These laws created a complete regulatory structure in full accordance with the acquis. The competent Ministry also had to prepare the Polish Postal Law, in order to achieve full conformity of the Polish postal services market with EU requirements. The above-mentioned chapter was provisionally closed on May 19, 1999. The Directive on e-commerce was adopted by EU institutions on 8 June 2000 and Member States had to bring into force the laws, regulations and administrative provisions necessary to comply with this Directive before January 17, 2002. Poland’s negotiation position in the area of “Freedom to provide services” was adopted by the Council of Ministers of the Republic of Poland on July 13, 1999; therefore it did not include any position on e-commerce directive. Nevertheless, Poland accepted and obliged itself to implement the acquis in the area of “Freedom to provide services” by 31 December 2002, fully recognising and taking into consideration the objectives laid down in articles 52 and 59 of the EC Treaty, and particularly the non-discriminatory principle. As a result of negotiations, basically no transitional measures were provided in Poland’s Accession Treaty in the areas concerned. However, at the end of the accession negotiations in December 2002 chapter 19 was re-opened and only one transitional period was granted. By way of derogation from the second subparagraph of Article 7(1), of the Postal Services Directive 97/67/EC, Poland may apply a weight limit of 350 grams for reserving services to universal service providers until December 31, 2005. During this period, this weight limit does not apply if the price is equal to, or more than, three times the public tariff for an item of correspondence in the first weight step of the fastest category8.

2.2. Transposition General remarks
Since 1994 the obligation to deliver an opinion on the conformity of draft laws with the acquis is binding. The Office of the Committee for European Integration (UKIE) has played the main role in this field. It coordinates works of all ministries and institutions directly engaged in the process of Poland’s integration with the EU. The most powerful task, which this office is responsible for, is the obligation to issue an opinion on compliance of Polish draft legislation with EU law. Its intervention helped many times to maintain or bring back the Community wording of Polish provisions and since accession to the EU it helps to keep the necessary deadlines fixed for the transposition of the various EU legislative acts.
8 Accession

of the Czech Republic, Estonia, Cyprus, Latvia, Lithuania, Hungary, Malta, Poland, Slovenia and Slovakia (2003) OJ L 236 of 23 September 2003 (Annex XII). 110

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When transposing the Information Society acquis the procedure of law assessment was also applied: The process of adaptation of EU law started in each ministry where the appropriate draft law was created. Then, the lawyers from the Committee for European Integration (UKIE) assessed the draft law. When the draft law was sent to the Parliament it had to be examined three times during the legislative procedure by the Committee for European Integration: after the first reading, after the second reading and after the resolution of the Senate. Approximately 100 opinions on conformity were presented when adapting both primary and secondary telecommunication, postal service and e-commerce legislation (out of a total of 17 048 issued opinions in the years 20012005).

Telecommunications
The time–frame for the process of harmonisation and implementation of EU law was determined by the date fixed by the Government of Poland as the date on which Poland would be prepared to access the EU: the 31 December 2002. Taking into account that the Polish telecommunication market has been fully monopolised by the incumbent TPSA (its market share was above 93 %) the requirement to adjust to the acquis by 31 December 2002 was the main driving force in liberalising the Polish telecommunication market. Although accession to the EU took place later (1st May 2004) all necessary legislation had been already put in place or was under preparation. The primary basis of the current telecommunication regulatory regime resided in the new Telecommunications Law of 2000, which entered into force in January 2001. The Telecommunications Law 2000 partly transposed EU Directives of the ‘old’ telecommunication regime as EU institutions only adopted the new electronic communications package later in 2002. The purpose of the Telecommunications Law 2000 was to facilitate market entry for new operators, to put in place a policy framework for interconnection, as well as to assure universal access to telecommunication services throughout the country and to protect the users’ interests. This law created an independent regulatory body separate from the ministry and from operators. The law also ended the system of providing tenders or authorisations for local, long-distance, and mobile telecommunication services at the end of 2001. On March 7, 2002, the most important elements of the new regulatory framework for electronic communication networks and services were adopted at the EU level. The whole package consists of a number of directives of the European Parliament and the Council under Article 95 (harmonisation), one Commission directive under Article 86 (liberalisation) and a number of secondary legislative texts, of which the most important one (the Recommendation of the European Commission on market definition in the electronic communication sector) was approved on February 11, 2003. The four most important directives (framework, authorisation, access and universal service) were implemented into Polish law before July 24, 2003. EU Member States were obliged to apply their new legislation starting from July 25, 2003. The
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implementation date of the Data Protection directive was the 31st October 2003. However, at this time the Candidate Countries disposed of a little more time, since they only needed to implement this new package from the date of their accession to the EU. However, Poland was not fully ready with the implementation on this date. In general, the success of Poland’s transition to the new EU regulatory framework was due to the fact that important aspects of the old EU legislative framework have been completed prior to accession (Telecommunications Law 2000). This approach ensured that the basic ‘starting conditions’ for liberalisation and harmonisation were in place as quickly as possible; in particular the regulatory obligations on Significant Market Power operators as established in the old EU legislative framework were in force and could be maintained until the market analysis process had been completed. This approach ensured also the establishment of independent national regulatory bodies capable of ensuring the effective implementation of the framework upon accession. The new Polish Telecommunication Law transposing the new EU regulatory framework for electronic communications was published in August 2004 after a hard and long debate in the Parliament; it entered into force on September 3, 2004. A significant amount of secondary measures necessary to ensure full transposition and effective application of the EU directives still needs to be adopted; the Ministry of Infrastructure is currently working on the drafts. Until the new executive ordinances are adopted, those issued under the Telecommunications Law 2000 remain in force.

Postal Acquis
Regarding the implementation of the postal services acquis, the Polish Postal Law adopted on 12 June 2003 fully implemented the provisions of the EU postal services Directive 97/67/EC. However, there has been a delay in the transposition of Directive 2002/39/EC. This may be explained (although not justified) by the fact that the Directive was adopted at a relatively late stage in the accession process and just after the new Polish law transposing Directive 97/67/EC has been adopted. The amendment to the Polish Postal Law was finally adopted on 13 March 2004 and entered into force on the date of Poland’s accession to the EU. Apart from adjusting to the requirements of directive 2002/39/EC and a granted transitional period, the amended Polish Postal Law removed other existing incompatibilities that had been raised in bilateral contacts with the European Commission. They concerned e.g. the exclusion from the reserved area for the incumbent hybrid mails (transferred by electronic means) and postal orders.

E-commerce
Directive 2000/31/EC of the European Parliament and of the Council of June 8, 2000 on certain legal aspects of information society services, in particular of electronic commerce in the Internal Market was implemented in Polish legislation by the Act of 18 July 2002 on e-commerce services. The Act also amended certain provisions of the Polish Civil Code. The Act was published on September 9, 2002 and entered into force
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6 months later, on March 10, 2003. The Act incorporated also provisions of Directive 98/48/EC (defining the information society) as well as provisions of Directive 2002/58/EC (‘privacy’ directive). The provisions of Polish law were compliant with the assumptions adopted by Candidate Countries in the initiative eEurope+2003. The European Commission in its last Regular Report on Poland’s progress towards accession in 2003 raised the non-compliance of the mentioned Act with several articles of Directive 2000/31/EC (articles 2, 3, 8, and 9 to 11). However, definitions included in article 2 of the Directive have been transposed into the legislative glossary of the Act on e-commerce. Article 8 of the Directive is not subject to the transposition by virtue of a mandatory legislative act since the issue remains within the scope of internal regulations of the self-government of individual regulated professions. Articles 9 to 11 concerning the approach to agreements and the method of submitting electronic offers were totally implemented by the Act on the amendment of the Polish Civil Code Law of February 14, 2003.

3. TRANSPOSITION OF THE INFORMATION SOCIETY ACQUIS AFTER POLAND’S ACCESSION TO THE EU Telecommunications
Although Poland fully implemented the binding acquis in this area only in August 2004 (one year after the deadline for transposition) the Commission did not launch any infringement proceeding under article 226 EC Treaty against Poland. However, it did so by the end of October 2004 against Belgium, the Czech Republic, Estonia, Greece and Luxembourg. As the Commission services were examining the conformity of Polish implementation measures with the EU Directives, four substantive infringement proceedings were launched in March 20059. Amongst others, they concern the key issue of the role of the National Regulatory Authority when carrying out market analysis, and in particular the remedies that should be available to them. In particular, one letter of formal notice states that the Polish telecom law does not fully transpose Article 4 of the Framework Directive which concerns “appeals and dispute resolution”. According to this directive, pending the outcome of an appeal, the decision of the National Regulatory Authority (NRA) shall stand, unless the appeal body decides otherwise. According to Polish law an appeal normally has suspensive effect, unless the NRA decides otherwise on a case-by-case basis.

9 Information on infringement proceedings can be found at: http://www.europa.eu.int/comm/secretariat_general/sgb/droit_com/index_en.htm

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Another letter of formal notice calls for the correct transposition of “mobile number portability”, i.e. the right of each subscriber for mobile services to retain the number independently of the undertaking providing the service. Although it has been formally introduced into the Polish system with the adoption of the new law, the relevant provision of the law seems to exclude pre-paid customers of mobile services from its scope. Last but not least, the Commission stated that the “single European emergency number” (112) free of charge is not ensured in Poland for fixed network subscribers, and access to it is only possible for mobile end-users. After finishing the internal governmental consultations, the European Committee of the Council of Ministers in Poland adopted its position and sent it out to the Commission where it currently undergoes examination. It is very likely that the Commission will continue its proceedings by issuing reasoned opinions under article 226 TEC and that the cases eventually will be referred to the European Court of Justice.

Postal Acquis
All Polish postal primary legislation is in place since the date of Poland’s accession into the EU including one transitional period. As a result only necessary secondary legislation needed to be adopted. Poland has now implemented the overall EU postal service framework with all fundamental elements: – The provision of a universal postal service for all users comprising at least one delivery collection five days a week; – The maximum part of the market reserved for the Universal Service Provider: 350g of weight or three times the basic tariff of an item of correspondence (and 50g/ 2.5 *basic tariff as of 2006); – The authorisation procedures, which include individual licenses; – A reasonable and good access of all users to the postal network which is transparent and non discriminatory; – Cost-based tariffs including special tariffs, for universal services; – Cross-subsidies from the reserved area to the competitive area limited to the fulfilment of universal service obligations; transparent and separated cost accounting; – Quality of service targets for cross-border mail (85% for D+3, 97% for D+5 for the fastest standard category of service); – Adequate consumer protection measures, particularly with regard to complaints and redress procedures; – National Regulatory Authority established, independent from the postal operators. Although, almost all Member States have transposed the Postal Services Directive, there
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it is important to put them in line with the acquis first. it will be submitted to the Commission. one point is worth mentioning here: the e-commerce directive covers competences of several main ministries in Poland and responsibilities are split between various governmental bodies. which have an enormous influence on other spheres of law. the choice is to be made by the national administration. There are areas of law. a country has to choose either a ‘centralised’ or a ‘decentralised‘ system of law adjustment. CONCLUSIONS FOR FUTURE EU MEMBER STATES AS REGARDS THE SUCCESFUL IMPLEMENTATION OF INFORMATION SOCIETY ACQUIS On 1st May 2005 we were celebrating the first year of Poland’s membership within the EU. Obviously. These are mainly in the areas of licensing and authorisation.Chapter 7 are still some conformity issues. At this moment. complaint and redress procedures. which concern various areas. It is very important to have a detailed timetable of actions to be taken. 4. At a later stage it is also very useful as a tool to coordinate and deal smoothly with infringements. E-commerce directive The Commission also raised some doubts as regards the complete implementation of the e-commerce directive by Poland. 115 . In a ‘centralised’ system it is easier to monitor them regularly and control their execution. It should include a full and in advance well-planned list of necessary transposition measures. which refer in particular to the example of implementation of the Information Society acquis: Firstly. a great degree of involvement on the side of each competent ministry is required. it seems that some of the Commission’s remarks would be accepted as justified. In a ‘centralised’ system of monitoring of the correct law transposition it is for practical reasons better if the system is independent from the line ministries. Therefore. but the decision should take into account the ‘maturity’ of the national administration and its capability to act in a responsible way. Irrespectively of the choice made. As soon as the official position of the Polish government is ready. Setting clear priorities and making strategic choices is needed in transposing EU law. however no formal proceedings where launched and the Commission simply asked for some clarification. it is worth drawing the following remarks/conclusions. However. Therefore. which can be tackled by the Commission. This gives the opportunity to attempt an assessment of the pre-accession period and of the first months of membership in the EU and especially as regards Poland’s experience in the implementation of the EU acquis. price control and the separation of accounts. therefore it is crucial to gather a common position.

116 . It is also worth remembering that although before the accession there is an enormous work to be done by the central administration of a Candidate Country. Bilateral contacts with the European Commission should not be underestimated. the present analysis can neither be complete nor reveal the scale of necessary changes. Consultation with all market players is also very important. They are also very useful when dealing with infringement procedures. If there is high awareness of EU affairs both on the political and administrative level it can save a lot of energy and make the whole process of law implementation a successful one. market surveillance. Therefore. They will help avoid numerous misunderstandings during the process of alignment and after the accession in the process of future infringements. It is important to remember that local circumstances must be taken into consideration and that it will take time to identify the most appropriate method for a successful implementation of the acquis. state aid (especially in postal services sector). A flexible legislative technique is of crucial importance. Concordance tables are very useful tools within the process of law transposition. However. The Commission started requiring them to accompany the notification of national transposition measures. Also special attention has to be paid to constraints. it may to a great extent determine the speed and success of transposing the acquis. and competition policy. even though this is a purely national issue. The Commission is just another administration and it is better to telephone or drop an email rather than write and answer formal letters. Their opinions have to be taken into account right from the beginning of the implementation process. Nevertheless.Chapter 7 These areas are. It is less troublesome to implement the acquis by secondary legislation. amongst others. which can cause the national Constitution. Conflicting situations may occur as regards competences of regulatory bodies and powers that they may use to impose on individuals generally binding obligations. on top of the points mentioned above there is a prevailing condition for a successful implementation of the acquis in general: the political will and determination of the policy makers. it is also necessary to reflect and plan the ‘after-accession’ actions when it comes to influencing the EU decision-making process.

between 1985 and 1992. Even though the Treaty establishing the EEC. major infrastructure projects and accession of the EU to international transport organisations to achieve stronger influence on their decisions. which stated the Council’s failure to adopt the measures laid down in the Treaty (Case 13/83. As a result. on 12th September 2001. which put a strong focus on the market aspects of transport. The White Paper focuses on intermodality. road safety. of politically inapt Commission proposals.which was held within the framework of the OECD remained the main institution to co-ordinate pan-European transport policy initiatives. HISTORICAL DEVELOPMENT OF EUROPEAN COMMON TRANSPORT POLICY Transport policy has almost exclusively been a national issue in the past. At the same time the European Court of Justice (ECJ) has given a ruling on the 22nd May 1985. for nearly 30 years the European Conference of Transport Ministers (ECMT) . urban transport. Ministry of Transport. interoperability. a wide range of measures and initiatives were brought towards aiming at the completion of the internal market through the elimination of regulatory barriers. The new era for common transport policy started in 1985. Posts and Telecommunications of the Slovak Republic. revitalisation of railways. On 2nd December 1992. including transport policy. and of apparent drift in the direction of more nationally oriented policies. the EEC Transport Policy was described primarily as a dismal story of false starts. of persistent Council inaction. Ten years later. sustainable transport system for 2010. 117 . signed in March 1957. Parliament against Council) and the EC institutions’ obligation to act in the field of transport. the White Paper on European transport policy for 2010: time to decide was published as a basic strategic document for the common Transport Policy. * State Advisor. of divided government views. the EC’s first White Paper on the future development of the common transport policy put an emphasis on the opening up of the transport market.Chapter 8 CHAPTER 8 EU TRANSPORT AND INFRASTRUCTURE POLICY AND EXPERIENCES OF THE SLOVAK REPUBLIC IN IMPLEMENTATION Roman Horvath* 1. Its main slogan is “sustainable mobility”: to strike a balance between economic development and the quality and safety demands made by society in order to develop a modern. provides a legal basis for the creation of a Common Transport Policy. In the 60ies. services for passengers. The Commission published the White Paper on the Completion of the Internal Market. environment.

the following section enumerates only the most important parts of the acquis communautaire in the field of Transport Policy. The wording of these articles is almost the same as in the currently applicable EC Treaty. roadworthiness of vehicles. vehicle registration) and social harmonisation (specially as regards working time). The title also underlines the principle of non-discrimination and the prohibition of state aids except aids that meet the needs of coordination of transport or represent the reimbursement for the discharge of public service obligations. In the Treaty establishing a Constitution for Europe Articles III-236 – 245 in Part III are devoted to Transport Policy. – Measures to improve transport safety. – Safety of passengers and goods. – The conditions under which non-resident carriers may operate transport services within a Member State. transport of dangerous goods. opening up the goods and passenger market – international and cabotage). 2. Title V (Articles 70 – 80) is devoted to Transport Policy.Road Transport The current acquis communautaire in this field is focused on the following aspects: – Market access and competition (access to the professions. technical harmonisation (maximum authorised dimensions and weights. According to this title. The only change concerns the extension of the qualified majority vote within the Council to all measures adopted within the field of Transport Policy. 118 . – Harmonisation of legislation. tunnels. Inland Transport . THE ACQUIS COMMUNAUTAIRE IN THE FIELD OF TRANSPORT POLICY AND THE MEASURES FORESEEN IN THE 2001 WHITE PAPER Measures adopted under the Transport Policy form the second largest part of the acquis communautaire. 2. including tax harmonisation (charging of infrastructure costs).Chapter 8 In the EC Treaty. after measures adopted under the Common Agriculture Policy.1. roadworthiness tests). administrative harmonisation (driver’s legal obligation. the main fields of EC action are among others: – The establishment of common rules applicable to international transport to or from the territory of a Member State or passing across the territory of one or more Member States. For this reason.

On 21st April 2005. the EU and the Member States have to: – Harmonise driving times with an average working week of not more than 48 hours (except for self-employed drivers). the harmonisation of driving times (Directive 2002/15/EC) and the development of vocational training. – Harmonisation of legislation . The declared objective of the 2001 White Paper is to maintain in 2010 the modal share of rail transport at the same level of 1998 and thus reverse the decline of rail transport observed over the last 30 years. The Commission announced its intention to table a set of new proposals (railways packages) to improve access to the railway network for freight transport and to amend existing directives on the interoperability of conventional rail systems and High-Speed Rail systems. the current acquis communautaire is focused on: – Market access and competition (access to infrastructure and occupation. The first rail package (Directives 2001/12/EC. – Encourage exchanges of information. revitalising and liberalisation of railways). – Develop vocational training. transport of dangerous goods). – Promote uniform road transport legislation.Rail Transport As regards rail transport. 2001/13/EC and 2001/14/EC) is fully effective in the Member States since March 2003 and comprises a series of measures relating to the opening-up of the international freight: – A regulatory independent body other than the railway undertaking in each country has to be set up and ensure fair and non-discriminatory access conditions 119 . Since the adoption of the 2001 White Paper main achievements have been made in the field of driver attestations. allocation of infrastructure capacity.Chapter 8 According to the 2001 White Paper. – Harmonise penalties and the conditions for immobilising vehicles.technical harmonisation (interoperability of trains). – Harmonise fuel taxes for commercial road users in order to reduce distortion of competition on the liberalised road transport market. the EU transport ministers approved the so-called ‘Eurovignette directive’ on infrastructure (road) charging. – Increase the number of checks. – Improve road safety and halve the number of road deaths by 2010. as well as to create a European Railway Safety and Interoperability Agency. – Harmonise the national weekend bans on lorries. . – Introduce a driver attestation in order to check that the driver is lawfully employed. in the field of road transport. – Safety (standards and monitoring.

– Directive 2004/51/EC (amending Directive 91/440/EEC) extending infrastructure access rights to freight services within a Member State and opening the rail freight markets. but can make proposals to the Commission. This package comprises several directives and a regulation: – Directive 2004/49/EC on safety on the Community’s railways (amending Directive 95/18/EC and Directive 2001/14/EC) aiming to develop a common approach to safety and establish a common system for the issue. with a staff of around 100 persons. – Regulation (EC) No 881/2004 establishing a European Railway Agency. The third railways package consists of 4 proposals. – Access rights to the Trans-European rail freight network have to be guaranteed for all licensed rail operators. – A proposal for a regulation on international rail passengers’ rights. The agency has no decision-making powers as such. content and validity of safety certificates. has a pivotal role in moving forward the work on approximating the technical railway systems. 120 . – Charges for the use of infrastructure have to be set in a transparent and nondiscriminatory manner guaranteeing the competitiveness of international freight transport. The second railways package was proposed in 2002 and became effective in 2004. registering and monitoring the technical specifications for interoperability. – A proposal for a directive on opening up the market for international rail passenger transport services by 1st January 2010. The agency. The European Railway Agency has been set up in May 2004 and is located in Lille/ Valenciennes (France).Chapter 8 for all railway undertakings. Its aims are to develop common safety standards and devise and manage a system for monitoring safety performance and to manage in the long-term the system for establishing. – Transparent and fair rules and procedures have to be defined for the allocation of train paths. – A proposal for a regulation on the quality of rail freight services including the possibility of compensation in cases of non-compliance with contractual quality requirements for rail freight services. – The current high level of safety has to be maintained after the opening of international rail freight markets. – Directive 2004/50/EC adapting and amending former interoperability directives (Directive 96/48/EC and Directive 2001/16/EC). including cabotage. by 1st January 2007. put forward by the Commission in March 2004: – A proposal for a directive on the certification of locomotive and train drivers engaged in the carriage of passengers and goods in the Community.

The Programme runs from 2003 to 2006 with a budget of 100 € million for the EU25. Combined Transport Combined transport is focused on reducing road transport by bringing together rail. – Harmonisation of legislation including the mutual recognition of professional qualifications. opening up the goods and passenger market – international and cabotage. On 15th July 2004 the Commission presented a proposal (COM (2004) 478) to establish a second. One measure to achieve this objective is the establishment of the Marco Polo Programme with its adoption on 22 July 2003. thereby contributing to an efficient and sustainable transport system. The programme. logistics and other relevant markets. which has a budget of € 740 million for 2007-2013. competition rules). by 2010.Chapter 8 . significantly expanded Marco Polo Programme from 2007 onwards. These actions should contribute to maintain the distribution of freight between the various modes of transport at 1998 levels by helping to shift the expected aggregate increase in international road freight traffic of 12 bilion t/km per year to short sea shipping.Inland Waterways The current acquis communautaire on inland waterways contains rules on: – Market access and competition (access to the profession. The final form of Marco Polo II will depend on the outcome of the negotiations with the European Parliament and the Council. Marco Polo II includes new actions such as motorways of the sea and traffic avoidance measures. 121 . to their 1998 levels. 2. the Programme supports actions in the freight transport. All segments of the international freight transport market are within the scope of the Programme. To achieve this objective. correcting measures reabsorbation existing overcapacity. In its 2001 White Paper the Commission proposed to take measures which should make the market shares of the modes of transport return. rail and inland waterways or to a combination of modes of transports in wich road journeys are as short as possible. The Programme’s objective is to reduce road congestion and to improve the environmental performance of the freight transport system within the Community and to enhance intermodality. inland waterway and sea transport.2. has been extended to countries bordering the EU. – Safety issues (River Information Services).

establishing an Open Aviation Area between the two territories. to create additional capacity and to increase the overall efficiency of the air traffic management system (ATM). traffic increased by an average of 7. liberalisation of tariffs. to restructure the European airspace as a function of air traffic flow. traffic management. EU/US negotiations will seek to replace existing agreements between individual Member States and the US with a single comprehensive EU/US agreement. air safety.eu. The legislative package has been adopted in March 2004 and comprises four regulations covering the essential elements for a seamless European Air Traffic Management System2: – Regulation (EC) No 549/2004 laying down the framework for the creation of the Single European Sky (the framework Regulation). tariffs. accident prevention and dealing with accidents) The Single European Sky1 is an ambitious initiative to reform the architecture of European air traffic control to meet future capacity and safety needs. access to market and to professions.pdf 2 Official Journal of the European Union L96 . leading to a nearby doubling of traffic by 2020. interoperability. Air Transport Of all forms of transport. The objectives of the proposed legislation are to improve and reinforce safety.Chapter 8 2.3. 1 For a short description of a Single European Sky: http://www.int/comm/transport/air/single_sky/doc/2004_simple_european_sky_presentation_en. In terms of passenger-kilometres. On 21st April 2005. while traffic at the airports of the 15 Member States increased five-fold since 1970. air security. seat booking systems). The current acquis communautaire in the field of air transport is focused on: – Rules on market access (harmonised access. – Rules on air-traffic and safety rules (air traffic control. – Rules on competition and fares (agreements and business practices. – Regulation (EC) No 552/2004 on the interoperability of the European Air Traffic Management network (the interoperability Regulation).europa. equipment and systems. the EU transport ministers supported an effort of the EC to continue negotiations with USA. allocation of timetable slots. rather than according to national borders. – Regulation (EC) No 550/2004 on the provision of air navigation services in the Single European Sky (the service provision Regulation).31/03/2004 122 .4% a year between the year 1980 and 2001. controls on state aid. – Regulation (EC) No 551/2004 on the organisation and use of the airspace in the Single European Sky (the airspace Regulation). airport charges). Estimates are that air traffic will grow by 4% a year over the next 15 years. access to the ground-handling market. air transport has seen by far the most impressive growth in the European Union over the last twenty years.

– To propose new measures to speed up the phasing-out of single-hull oil tankers.including shipbuilding.eu. establish a European Maritime Safety Agency and create a supplementary fund for compensation for oil pollution damage (COPE Fund). competition rules).Chapter 8 Improved air traffic and aircraft positioning and communication technologies. These packages have two objectives: – To tighten existing legislation on port State control and the monitoring of classification societies. fishing and related industries and services . – The maritime transport sector . 2.4.int/comm/dgs/energy_transport/galileo/doc/galileo_leaflet_en. more than 1 billion tonnes of freight a year are loaded and unloaded in EU ports.5 million people in the European Union.employ around 2.pdf 123 . The Agency provides technical and scientific advice to the Commission in the field of maritime safety and 2 For more information on Gallileo: http://www.eu. Two sets of legislative proposals were tabled by the Commission: the Erika I package (March 2000) and the Erika II package (December 2000). The European Maritime Agency was established in 2002. – Maritime companies belong to European Union nationals control one third of the world fleet. such as GALILEO.3 offer opportunities for significant improvements in the efficiency and safety of air travel. The current acquis communautaire in the field of maritime transport is focused on: – Rules related to market access and competition (freedom to provide services. – Rules related to traffic and safety. After the Erika disaster on 12 December 1999.int/comm/dgs/energy_transport/galileo/intro/challenge_en. and some 40% of EU trade is carried on vessels controlled by EU interests.htm http://www. ports.europa. Sea Transport The European Union is very dependent on maritime transport: – Over 90% of its external trade and some 43% of its internal trade goes by sea.europa. improve controls on shipping in European waters. the EU considerably reinforced its legislative arsenal to combat flags of convenience and give Europe better protection against the risks of accidental oil spills.

identification of projects of common interest and broad lines of measures for the three sectors concerned (Transports. Under the terms of Chapter XV of the EC Treaty (Articles 154. the Community is developing guidelines covering the objectives. 3. The Treaty establishing the European Union provides a sound legal basis for the TEN. priorities. The Council 4 For more information on the actions taken since the accident of the Prestige: http://www. monitoring its implementation and evaluating the effectiveness of the measures in place.eu. Financing of Transport TEN The basic financial rules for transport TEN (TEN-T) are set in Council Regulation 2236/95 on general rules for granting Community financial support.1. 3. The European Parliament and the Council approve these guidelines after consultation of the Economic and Social Committee and the Committee of the Regions. like the Erika and the Prestige. Agency officials closely cooperate with Member States’ maritime services. the European Union must aim to promote the development of TEN as a key element for the creation of the Internal Market and the reinforcement of Economic and Social Cohesion. Since the Prestige accident (November 2002). essential measures have been taken to tighten up the rules in the EU: Since October 2003 single-hull tankers carrying heavy fuel oil are no longer allowed to enter or leave ports in the Member States.pdf 124 . 155 and 156). According with these objectives. ageing single-hull tankers. carrying heavy fuel oil will be prohibited from sailing off the EU’s coasts and all over the world from 4 April 2005 at the latest4.europa. The final version of the current guidelines is the European Parliament and Council Decision 884/2004 (amending Decision 1692/96). TRANS-EUROPEAN NETWORKS The idea of Trans-European Networks (TEN) emerged by the end of the 1980s in conjunction with the proposed Single Market.int/comm/dgs/energy_transport/publication/memos/2004_11_maritime_security_en. Under the new international rules adopted by the International Maritime Organisation (IMO) at the instigation of the EU. which contains provisions for developing Private-Public Partnerships (PPP) as well.Chapter 8 prevention of pollution by ships in the continuous process of updating and developing new legislation. Energy and Telecommunications). The annex contains an updated list of projects including dates for completing the work on every project. This development includes the interconnection and interoperability of national networks as well as access to such networks.

the so-called TINA process (Transport Infrastructure Needs Assessment in Central and Eastern Europe) was launched. ECMT (OECD).Chapter 8 Regulation has been amended by Regulation 1655/99. 10 panEuropean multimodal transport corridors and 4 pan-European areas have been approved during these conferences. It committed M€ 515 (million) for TEN-T. 1990. Public-Private Partnerships Besides technical problems the lack of money is the main reason for slow completion of TEN-T. three pan-European transport conferences (Prague. a process of global assessment of infrastructure needs of the acceding countries. PPP arrangements are driven by the effort to limit public funds to cover investment needs and to increase the quality and efficiency of public services.2013 period. which acceded to the EU in May 2004. An amendment to the rules has been adopted with the European Parliament and Council Regulation 807/2004. 1997) were held between the European Commission. The European Investment Bank (EIB) has also greatly contributed to the financing of these projects through loans. – To increase the quality of all transport modes. The EC has started to focus on Private-Public Partnerships (PPP) as a possible solution. 1994 and Helsinki. which covers the period 20002006. The final report was produced in October 1999. UN. of which more than 55% is reserved for railways transport and less than 25% for road transport. a large number of TEN projects of common interest have benefited from financial support of the Community budget through the TEN-budget line as well as the Structural Funds and Cohesion Fund.2. – To decrease a number of accidents and an impact on environment. the TINA network has been integrated into TEN-T. So far. 3. the EU Member States and the countries of Central and Eastern Europe.3. The aim was to define TINA networks in the countries of Central and Eastern Europe in the same manner as in the Decision 1692/96 (on TEN guidelines) and to transform the Helsinki ‘corridor approach’ into a real transport ‘network approach’. Transport TEN and Central and Eastern European countries Since 1990. The corridors were created: – To assure a linkage between main transport networks of the accession (third) countries and the EU Member States. 3. 125 . In addition. Currently a new proposal of financial rules is discussed with a substantial higher co-financing and € B 1 for guaranties on loans for the 2007. In those countries. Crete. – To eliminate congestions on transport network in that period and in the nearest future.

Posts and Telecommunications of the Slovak Republic (MTPT SR) two working groups were set up. In March 2003 DG REGIO of the Commission issued Guidelines for successful Public – Private Partnership and in June 2004 a Resource book on PPP case studies. At the Ministry of Transport. The Slovak Parliamentary EU Affairs Committee is functioning as a co-ordinating body of the Slovak Parliament. At present. The EU coordination process is co-ordinated at central level by the Office of the Government and by the Ministry of Foreign Affairs. the co-ordination of the negotiations’ process was organised according to the negotiating chapters.Chapter 8 In 1997 the Commission issued a Communication on the financing of trans-European transport network projects by partnerships between the public and private sectors (COM (97)0453] final). Before the accession of Slovakia to the EU.1. As before. As the Treaty establishing a Constitution for Europe proposes deeper involvement of national parliaments into the EU legislative process. including the Government. a specific information system is being created to support the process. co-ordination groups consist of experts of the MTPT SR and experts of other involved ministries and bodies. which has taken the lead. 19 on Telecommunication and Information Technologies. The EU Co-ordination in the Slovak Republic At the beginning of the negotiation process. 4. European integration units were created for the co-ordination at every central body of the Slovak state administration. the scheme of co-ordination has been changed in order to take account of the needs resulting from the position of a full Member State. Its members and experts may participate in the EU coordination process from the beginning and may report positions of the Slovak Parliament to bodies involved at all levels. The whole negotiation process was co-ordinated on central level by the Office of the Government and by the Ministry of Foreign Affairs. 126 . one for Chapter no. After accession of Slovakia to the EU. The working groups consisted of experts of the MTPT SR and experts of other involved ministries and governmental bodies. the Slovak Parliament is informed of the whole EU agenda. Co-ordination groups were created instead of working groups. 9 on Transport Policy and one on Chapter no. Every negotiating chapter had its own working group. In April 2004 DG MARKT of the Commission has raised a public discussion with the Green Paper on PPP and Community law on public contracts and concessions. one per executive (central) body of state administration. POSTS AND TELECOMMUNICATIONS OF THE SLOVAK REPUBLIC IN TRANSPOSING AND IMPLEMENTING THE EU TRANSPORT POLICY ACQUIS 4. EXPERIENCES OF THE MINISTRY OF TRANSPORT.

The Slovak Republic does not have any framework act on transport. At present. The main tasks of harmonisation have been finished by amendments of existing legislation at the turn of 2004/2005. In addition. 3 acts regarding railways and single acts on air transport. Experiences gained with the Transposition and Implementation of EU Transport Policy Acquis The Slovak Republic closed negotiations on chapter no. The last monitoring report of the European Commission on the state of preparedness of the Slovak Republic for EU membership from September 2003 stated that transport was not a problematic area. 127 . The Transport Policy of the Slovak Republic for 2015 is being finalised. At the date of accession. digital tachographs and transportable pressure equipment. the legal alignment in the areas of rail transport (a Railways Regulatory Authority needed still to be established) needed to be accomplished and full membership of the Joint Aviation Authorities in air transport to be achieved. international agreements in transport were fully harmonised with the acquis communautaire (except the Open Skies Agreement with the USA). This included mainly road transport and particularly the social acquis and in the technical field areas like speed limitation devices. However the EU put forward transitional arrangements concerning the gradual reciprocal access to the EU cabotage market for Slovak operators in the road haulage sector for a maximum duration of five years (2 years renewable once for again 2 years and again renewable for one year).2. technical roadside inspections of commercial vehicles. There are 4 acts regarding road transport and infrastructure. 9 Transport Policy provisionally in April 2002. The report also stressed that co-ordination between relevant enforcement authorities needed to be improved considerably and the administrative capacity to be further strengthened. Technical provisions are sometimes transposed by decrees of the MTPT SR and governmental ordinances. inland navigation and maritime transport.Chapter 8 4. a statement is submitted to the Government every year with a forecast for the coming 4 years. It has been approved by the Government in 1993 and updated and specified in 2000. So far. There are still some leftovers and transposition deficit (about a dozen of directives) and the European Commission has sent several letters of formal notice as a first step within the infringement procedures under the EC Treaty. The Slovak Republic has not asked for any transitional period. the European Commission has not objected any improper transposition of directives into the Slovak legislation in the transport sector. The basic document for the transport sector is entitled The Principles of the State Transport Policy of the Slovak Republic. They have been amended several times and supplemented by decrees. Regarding road infrastructure (motorways and expressways). although in certain areas the Slovak Republic just partially met the commitments and requirements and needed to make enhanced efforts in order to complete its preparations for accession.

Operate. – The lack of full involvement and interest of all relevant players. According to the consultancy. In June 2004 the MTPT SR chose a consultancy company to advise on the East-West motorway connection. the Slovak Government is trying to focus on PPP. The consultancy proposed some technical changes that should result in savings of about 10% of costs and 8 projects combined into 5 packages. This has significantly speeded up the process of the harmonisation. The consultancy and MTPT SR agreed that a 93. The MTPT SR would be the awarding body on behalf of the Government. – The fact that a lot of bodies felt threatened by the implementation of the acquis communautaire. the Ministry of Finance of the Slovak Republic published a Communication on the creation of conditions for PPP. This communication asks for the preparation of the state policy for PPP and expresses the need of the Ministry of Finance to monitor the use of public money for PPP. The MTPT SR has tried to go ahead gradually and to gather experience through twinning projects financed by Phare and to involve all competent partners into the implementation process. PUBLIC-PRIVATE PARTNERSHIPS IN THE SLOVAK REPUBLIC The Slovak Government has promised to establish an East-West motorway connection by 2010. The consultancy proposed to award concession for 25-30 years (the Act on Public Procurement permits 30 years).96 kilometres long section (split into 8 parts) could be devoted to PPP. the Transport Research Institute has accomplished this task for the MTPT SR whereas the CTU has provided the final revision of the translation. 128 . – The general lack of money and experience. 5. Operate and Transfer) instead of the BOT method (Build. It recommended the DBFO (Design. At the same time. Another important aspect of difficulties was the proper translation of the acquis communautaire. as initially many Slovak experts on particular transport modes were not familiar with the EU official language. The Government will take soon a final decision on this document. The Central Translation Unit (CTU) of the Office of the Government was not able to ensure a proper translation of the transport policy acquis communautaire into Slovak language. which obliges Member States to fulfil the criteria of the Stability and Growth Pact and mainly to reduce substantially the state budget deficit. Currently. As a result. Build.Chapter 8 The main problems concerning the harmonisation of the Slovak legislation with the acquis communautaire during the pre-accession period were: – The huge amount of the acquis in the transport sector. As there is not enough money available to finance the promised motorway connection by 2010 with the state budget. the possibility for concessionaires to design the motorway could reduce the costs of maintenance and should speed up the process. the Government wants to launch the euro currency on 1st January 2009. Finance. Transfer).

Chapter 8 Relevant official documents and information can be found at the following websites: – DG Transport and Energy of the European Commission: http://www.emsa.html 129 .eu.int/comm/transport/index_en.int/ – European Aviation Safety Agency: http://www.eu.int/home/index.europa.eu.easa.html – European Maritime Safety Agency: http://www.

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the Federal Republic of Germany. Everything started on May 9. when French Foreign Minister Robert Schuman announced a plan. the project to create a ‘common market’ was launched. Often referred to as the Rome Treaties. 1951. energy policy continues to play a crucial role in European integration. Italy. At a historic meeting in Messina. A High Authority was set up. Italy. Luxembourg and the Netherlands accepted the French proposal. 2. The Six signed the treaties creating these two Communities on March 25. energy was at the very heart of the European construction. Two out of the three European communities set up in the 1950ies concerned specific types of energy. Belgium. The ECSC proved to be so successful that coal and steel trade between the Six increased by 129 percent in the first five years. people. capital and services with a wide measure of common economic policies. the Six tried to pursue integration in the military and political field. conceived by French businessman-turned-advisor Jean Monnet. in June 1955. After the rejection of the European Defence Community by the French Parliament in 1954. proposing to pool European coal and steel production under a common authority. Romania. they were ratified the same year and came into force in January 1958. Two European treaties were negotiated: The European Economic Community (EEC) with the objective to merge separate national markets into a ‘single market’ that would ensure the free movement of goods. to which member governments transferred a significant part of their sovereign powers in the field of coal and steel production. and all 6 countries signed the European Coal and Steel Community (ECSC) Treaty in Paris on April 18. Encouraged by the success of the ECSC. European leaders decided to continue the unification of Europe on the ‘economic path’. The Schuman Declaration was regarded as the first step towards achieving a united Europe .an ideal that in the Europe’s history so far had been pursued only by force. 1957 in Rome.Chapter 9 CHAPTER 9 EU ENERGY POLICY AND ITS TRANSPOSITION AND IMPLEMENTATION IN ROMANIA Lavinia Ileana Andrei* 1. 131 . THE CURRENT EU ENERGY POLICY More than 40 years after setting the framework for the European Communities. HISTORY OF THE EUROPEAN ENERGY POLICY Since the beginning. 1950. The most recent revisions of the EC and EU Treaties still have not yet managed to include a separate *President of the Foundation TERRA MILENIUL III. and the European Atomic Energy Community (EAEC or Euratom) to foster the use of nuclear energy for peaceful purposes.

132 . EU energy policy was still directed towards the long-term energy objectives first set out in 1995 in the Commission’s White Paper on Energy Policy for the EU (COM (95) 682). Establishing maximum safety conditions as a prerequisite for planning. 175. However. and Economic and social cohesion. the ECSC Treaty has expired in 2002. the Parliament and the Council highlight that Energy Policy must form part of the general aims of EU economic policy based on market integration and deregulation: Public intervention must be limited to what is strictly necessary to safeguard the public interest and welfare. However. Sustainable development.Chapter 9 chapter on energy. In addition the EC Treaty mentions the Trans-European networks. 155 and 156 in connection with Art. followed by the Green Paper Towards an European Strategy for the security of energy supply (COM (02) 769 and COM (02) 321). the EU has set various sectoral objectives. Overall Energy Policy measures can be adopted on the basis of articles in the EC Treaty which are linked to the Internal market (articles 94 and 95) and on the basis of article 100 (supply difficulties). As regards nuclear energy. security of supply and protection of the environment. joint undertakings and supplies. which mark out the framework for EU Energy Policy: Maintaining the percentage of solid fuel (coal) in total energy consumption (in particular by making production capacity more competitive). The Treaty establishing a Constitution for Europe proposes for the first time to introduce a chapter on Energy Policy (Art. Consumer protection. Arts. III-157). Energy Policy has been incorporated in the list of objectives of the EC Treaty (Art. Measures closely linked to Energy Policy can also be adopted under the Title “Environment” (Title XIX . the EAEC (Euratom) Treaty. As regards Coal. construction and operation of nuclear power stations. in particular articles 40-76 enable the adoption of measures on investment. 154. 3u) and Energy Policy measures can be adopted on the basis of various legal provisions in the Community Treaties. which includes also energy infrastructure (Title XV. beyond those general aims Energy Policy must pursue particular aims that reconcile competitiveness. 158). §2). The Commission. Articles 92-100 of the EAEC Treaty can be used to adopt measures related to the nuclear common market. Art. Apart from these general objectives. Increasing the ratio of natural gas in the energy balance.

the Commission has launched new initiatives in 2003 (COM (03) 740 and COM (03) 743) and has also proposed a new Regulation on access to gas transmission networks (COM (2003) 741). The common EU Energy Policy revolves around two axes: The functioning of the internal energy market. TPA) was agreed on 25 July 1996 (Directive 96/92). The security of energy supplies. the success rate of the various Member States in achieving these objectives is still very unequal. The energy markets in electricity and gas will be fully open to competition by 2005 (2007 for household customers) as decided by two Directives adopted in 2003 (Directive 2003/54 on the opening up of the electricity market and Directive 2003/55 on the opening up of the gas market). According to EC legislation. national gas and electricity markets were separate ‘islands’ within the EU. While the EU has achieved undeniable success in pursuing the above objectives. the approximation of tax and pricing policies and measures in respect of norms and standards and environmental and safety regulations. Now.1. national regulatory authorities are in charge of supervising public service obligations and ensuring the security of supply and tariff formation. The Commission reports annually to the Parliament on the implementation of these two directives. Opening of electricity and gas markets In the energy sector the completion of the internal market requires the removal of numerous obstacles and trade barriers. Labelling of the source of energy In the future. The Internal Energy Market A competitive energy market helps efficient energy use. those markets have been opened up to competition. 2. Following the Directives adopted in 1990 and 1991 on transit of electricity and gas.Chapter 9 Increasing the share of renewable sources of energy. In the past. In order to strengthen competition in the internal electricity market and to promote investment in energy infrastructure and security of supply. with supply and distribution in the hands of monopolies. the source of electricity will have to be accurately labelled. a further opening of the electricity networks for large industrial customers (‘Third Party Access’. Directive 98/30 for the gas market was adopted on 22 June 1998. 133 . Regulation 1228/2003 on the conditions for access to the network for cross-border exchange in electricity completes these two Directives.

which the European Commission specifies in its 2001 Green Paper Towards a European strategy for the security of energy supply. Energy is a major economic and geopolitical factor. the EU’s enlargement process has a key role to play. while this dependence could even reach 70% by the year 2030. they also have a right to gas and electricity supply at reasonable prices. chiefly coal. gas and electricity. where appropriate. For natural gas. enlargement will reinforce these trends. However. the European Union is dependent on imports for half of its energy supplies. Consumers on low incomes or those who live in remote areas need not fear being cut off or charged excessive prices because the supplier has decided they are too small or too far away to bother about. Poland produces coal and Romania produces oil and gas). Heat and power for these groups are seen as a public service and there will always be a default supplier to provide a service. security and prosperity.g. 3. 2. Security of EU Energy Supply The European Union is a key actor on the international energy market as the largest importer and as the second largest consumer of energy in the world.Chapter 9 Taxation of energy products Directive 2003/96 has introduced a new EU system for taxation of energy products.2. currently limited to mineral oils. ultimately underpinning the Union’s efforts to ensure peace. SECTORAL ASPECTS OF EU ENERGY POLICY 3. According to the Commission. measures in the energy sector should aim at a more stable flow of energy. including electricity. In this. Coal and other solid fuels The objective in this field is to promote the use of coal and make domestic production capacity more competitive to achieve a notable increase in solid fuel consumption. dependence could reach 70 %. natural gas and coal. This Directive widens the scope of the EU minimum rate system. Consumer protection Consumers not only have the right to choose their supplier. despite the fact that certain new Member States and some candidate countries are producers of primary energy (e. The proper functioning of the internal market and the achievement of the objectives of other EU policies require minimum levels of taxation at EU level for most energy products. 134 . Most likely. stability. for oil 90% and for coal even 100%.1. the taxation of energy products and. electricity is one of the instruments available to achieve the objectives of the Kyoto Protocol. This situation calls for the adoption of various measures. to all energy products. In addition.

2. nuclear power was grouped (together with coal. gas and renewable sources of energy) as a ”less than perfect” energy option. Despite the EAEC Treaty. There are also no clear EU provisions for the storage and transport of nuclear fuels or nuclear waste and difficulties persist in establishing basic standards of radiation protection. reinforce nuclear safety and find a solution to the problem of nuclear waste. the Commission proposed in January 2003 a new approach to safety of nuclear facilities and nuclear waste (COM (03) 32). However. The question was raised how the EU could develop fusion technology and reactors for the future. As nuclear safety could no longer be considered from a purely national perspective and in preparation for enlargement. In the Green Paper on energy security. There is no adequate EU system of information and monitoring in cases of nuclear malfunctions and no emergency procedures in case of disaster has been agreed upon.4.Chapter 9 Large quantities of coal are being imported. For example. Abandonment of nuclear power is at the earliest a medium-term prospect. 3. the Commission’s powers are far from adequate. As stated above. Security of supply is to be encouraged by diversifying sources and by EU rules on obligatory reserves: Member States must keep 90 days’ stocks of the main petroleum products based on the previous year’s figures. 3. The respectively large subsidies needed in Germany and Spain are facing increased resistance from buyers. consumers and suppliers of other sources of energy. 3. the aim is to double the renewables’ share of total energy consumption to 15% by 2010 and to increase renewable energy sources for the internal electricity 135 . oil. Hydrocarbons EU Energy Policy objectives are to substitute crude oil by other forms of energy while also encouraging prospecting (offshore exploration etc. no uniform standards for safety and discharges exist and no EU consultation procedure concerning power stations sited near frontiers has been set up. as imported coal is significantly cheaper than domestic coal.3.) and the exploitation of indigenous hydrocarbons. In any event greater efforts have to be made to improve the safety standards of nuclear power stations. Renewable sources of energy and energy efficiency Promoting renewable energy is one of the main objectives of EU Energy Policy. The question of whether the EU should permit the continuation of coal subsidies beyond 2006 and what level of production should be permitted for coal-producing countries is currently the subject of controversy. the 1986 Chernobyl disaster has made nuclear energy highly controversial. Nuclear energy and nuclear fuels Nuclear energy is still accorded a key role in EU Energy Policy objectives.

gasification and liquefaction in the case of coal).Chapter 9 market to 22. Decision 1230/2003 on Intelligent Energy for Europe contains concrete measures to promote renewables and increase energy efficiency. encourage the adoption of new forms of energy (alternative energy sources. new technologies for a sustainable energy supply. This Directive sets up a method for the calculation of the energy performance of buildings and minimum requirements for new and existing large buildings. competitiveness and scope of the application of traditional energy (e. the Commission wants to push ahead the development and use of cogeneration. The framework programme amounts to € 200 million and covers the period 2003-2006. Sub-programmes have been set up supporting sustainable development projects and projects expanding cooperation between the EU and developing countries for renewable energy sources. which has given rise to controversial discussions in both the Council and the EP. The Directive is a key component of the EU’s strategy for energy efficiency and energy savings and for contributing to the reduction of CO2 emissions. DEVELOPMENT AND DEMONSTRATION PROJECTS The EU framework programme of research encompasses many energy R&D and demonstration projects to support the EU’s Energy Policy objectives. and energy certification. reactor safety and management of radioactive waste. although both. has been adopted by the EP and the Council in February 2004 (Directive 2004/8/EC). With its proposed Directive of July 2002 (COM (02) 415). it aims at overcoming current divergences whereby some Member States already have support schemes and targets for co-generation whilst others still have no provisions on electricity production from cogeneration. ventilation etc. The Directive includes provisions concerning the electricity grid system and tariff issues. RESEARCH. or combined heat and power production (CHP). hot water.) 4. It provides for a regulatory framework for the promotion and development of the simultaneous generation in one process of heat and electrical and /or mechanical power. 136 .1% of the total energy produced (Directive 2001/77). heating. It also aims at improving security of energy supply.g. air conditioning. These projects are designed to improve the acceptance level. Directive 2002/91 on the energy performance of buildings (in particular insulation. as well as on the definition of power-to-heat ratio and co-generation units. nuclear fusion) or support energy saving and rational use. the Commission and the EP argued for much more money. In December 2003 the Commission proposed a new directive (COM (03) 739) to boost energy efficiency in the EU and to promote the market for energy services (such as lighting. By introducing harmonised provisions throughout the Community. the use of renewable energy sources) was adopted in 2003. This proposal.

Chapter 9 5. solar and biomass in their energy balance. the Directive on greenhouse gas emissions (2003/87) was accepted. and prepare for the implementation of Euratom Safeguards on nuclear materials. Improve energy networks in order to create a real European market. Improve the safety of nuclear power plants in order to ensure that electricity is produced according to a high level of nuclear safety. Prepare for crisis situations. Romania declared to accept fully the acquis communautaire in the field of “Energy” in force on 137 . The importance of an agreed action plan to reduce greenhouse gases (particularly CO2) became clear at the UN Kyoto conference in December 1997 and the latest follow-up conference in Milan in December 2003. Prepare for the internal energy market (mainly the gas and electricity Directives. 6. the Directive on electricity produced from renewable energy sources). This includes the setting up and functioning of regulatory bodies as required in the electricity and gas directives and a nuclear safety authority. However. Chapter 14 on “Energy” was closed on 30th June 2004. hydro. 7. GREEENHOUSE EFFECT AND INTERNATIONAL COOPERATION The EU has stressed its commitment to combat the greenhouse effect and to support international cooperation in this field. Address the social. After a long and controversial debate in July 2003. The EU has promised to reduce its CO2 emissions by 8% from 1990 levels by 2008-2012. due to the strong opposition of a number of Member States and industrial sectors and a lack of support from the main competitors (the USA and Japan). ROMANIA’S ACCESSION NEGOTIATIONS WITH THE EU ON THE ENERGY CHAPTER Accession negotiations between Romania and the EU started on 13th March 2002 at the Accession Conference. regional and environmental consequences of the restructuring of mines. It will create the largest emissions trading scheme in the world from 2005. Key elements of the acquis in the energy sector cover both primary and secondary legislation in the topics of EU Energy Policy as listed above. Waste less energy and increase the use of renewable energies such as wind. Ensure that nuclear waste is handled in a responsible manner. CANDIDATE COUNTRIES AND ENERGY POLICY ACQUIS Implementing the acquis by the applicant countries requires not only adequate legislation but also well functioning institutions. particularly through the constitution of 90 days of oil stocks. Candidate countries need especially to: Decide on an overall energy policy with clear timetables for restructuring the sector. the 1992 proposal for a carbon dioxide and energy tax (COM (92) 0226) has not yet been implemented.

starting with January 2004. The Energy Roadmap also contains measures for restructuring and privatisation of the energy sector. industrial pollution control and pollution risk management. As a consequence of the restructuring process in the thermo–electrical sector. authorisation and control in the electricity and gas sectors are done by ANRE (National Authority for Energy Regulation) and ANRGN (National Authority for Natural Gas Regulation). On 1st September 2003 the crosscutting subsidies for the residential and non138 .Chapter 9 31 December 2000. The restructuring of SC Electrica SA in 2002 opened the door for the privatisation of the organisations newly set up. Romania declared that it is prepared to further examine the development of the acquis communautaire in the energy field. TRANSPOSITION AND IMPLEMENTATION OF EU ENERGY LEGISLATION IN ROMANIA In 2003. ratified by Law No. The time limits for the transposition and application of the specific energy directives with relevance to environment protection shall be coordinated with those regarding the transposition of the environmental acquis. on the difficulties that might arise in transposing the new acquis. the obligations assumed by signing the Kyoto Protocol to the UN Framework Convention on Climate Change. Romania stated to take into account the environment acquis in the fields of air pollution control. the Energy Charter Treaty. Romania also declared that it will apply the acquis communautaire on energy upon accession. Prices and tariffs for electricity are regulated by ANRE in a transparent manner and published in the Official Monitor (OM). In the implementation of the Community acquis in the field of energy. 6 big companies are now operating on the market. the gas market has been opened up to 40%. if the case may be. 3/2001. 14/1997 and the EURATOM Treaty. in January 2004. establishing an action plan to strengthen the sector and integrate it on the EU energy market. Regulation. The eligibility ceiling for consumption was reduced from 40 GWh/year to 20 GWh/year. with the exception of Council Directive 68/414/EEC (amended by Council Directive 98/93/EC) imposing an obligation to the Member States to maintain minimum stocks of crude oil and/or petroleum products for which it requests a transition period until 31 December 2011. 8. ratified by Law No. Romania adopted the National Energy Strategy on a medium–term through the Romanian Energy Roadmap. the level of market opening achieved 40%. As regards the electricity sector. The eligibility ceiling of consumption was reduced from 4 million mc/year to 3 million mc/year. entered into force after 31 December 2000 and to systematically inform the Accession Conference or the Association Council on the legislation and the measures adopted for the implementation of the new acquis or. As regards the gas sector.

In the coal sector a large restructuring process aims at the modernisation and refurbishment of the mining sector.eucenter.org/funding.asp Delegation of the European Commission in Romania: http://www. Regulating prices and tariffs for gas is done by ANRGN in a transparent manner and published in the OM.ro/ieweb/jsp/default.php 139 – – – – – – – – – – – .htm EU business.climnet.int/pol/env/index_en.asp Euractiv.infoeuropa.int/enlargement/briefings/43a1_en.eu.org/EUenergy/ET.int/pages/en/home.emerging-markets.Chapter 9 residential sectors were abolished.com/reports/R138/default.int/comm/enlargement/index. independent media portal: http://www.eu. which should be transposed until the end of 2005.jsp Emerging Markets Online: http://www. independent online business information service about the European Union: Energy policy in EU: http://www.com/guides/energy Emission trading in EU: http://www.euractiv.int/pol/ener/index_en. Directorate General for Enlargement: http://europa.esc.htm Activities of the EU in the field of Environment: http://europa.htm Existing EU Energy legislation: http://europa.int/eur-lex/lex/en/repert/index_12.com/Article?tcmuri=tcm:29-117935-16&type=News Information on EU funding opportunities: http://www. In the energy efficiency sector all the directives were transposed and will be implemented except the ones regarding the energy efficiency in buildings and promotion of bio-fuel for transport.htm Briefing paper n° 43 of the Task Force Enlargement.eu. European Parliament: http://www. Relevant official documents and information can be found at the following websites: – European Commission.europarl.htm Activities of the EU in the field of Energy: http://europa.eubusiness.eu.eu.eu.html#IntroET European Economic and Social Committee: http://www.

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SECTION 3 EU COMMON AGRICULTURAL POLICY .

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INTRODUCTION The recent negative results of the referenda on the Constitutional Treaty in France and the Netherlands have also indicated that civil society has problems with the agricultural sector in general and with the Common Agricultural Policy (CAP) of the EU in particular. 143 . the drafters of the Treaty had the experience of two world wars and were * Professor in European Politics at the Catholic University of Leuven. Since the 1 May 2004 (date of accession of 10 new Member States) we have around 10 to 11 million farmers in the EU-25. Agriculture has a great institutional presence in the EU because of its nearly exclusive community competence and farmers and their national as well as European organisations operate very effectively at European level. Free traders want total liberalisation of trade. 60% are part-time farmers and 55% are older than 55 years. Belgium. Consequently one could assume that agriculture is only a marginal issue in political life of the EU. Even the European Commission in its financial perspectives presented in February 2004 was putting the agricultural expenses directly under the budget heading “preservation and management of natural resources”. Agriculture and Regional Policy were very important issues in the enlargement negotiations.Chapter 10 CHAPTER 10 THE EU COMMON AGRICULTURAL POLICY Laurent Van Depoele* 1. They also have very powerful supporters such as the landowners. WHY AND HOW IS AGRICULTURE DEALT WITH IN THE ROME TREATY? Three reasons may explain why agriculture has been included into the Treaty of Rome. Visiting Professor at the College of Europe. etc. Bruges. The contribution of agriculture in the total GDP per country is still decreasing. the financial institutions. the agro-food sector. Consumers want food safety (security of food supply is no longer an issue) and quality. First. The taxpayers are of the opinion that they have to pay too much for this common policy. This is however completely wrong. What is wrong with the CAP? In terms of employment farmers are representing some 5 to 6% of the active population. Agriculture seems to have become a ‘dirty’ word. Belgium. How can we explain the pre-eminent role of agriculture in the EU? 2. But what is most astonishing is that even farmers seem to contest the CAP: some 67% of the French farmers have voted against the Constitutional Treaty in the referendum of 29 May 2005. Environmentalists are accusing the farming sector for a lot of land and water pollution. open borders and no export subsidies.

is the price at which intervention offices in the Member States must buy the products from their farmers when they bring the products to storage. For fruit and vegetables which can not be stored there is a withdrawal price. a fair standard of living for the farmers. the European Agricultural Guarantee and Guidance Fund (EAGGF) was established which rapidly absorbed 70 to 80 % of the Community budget. Farmers quickly discovered the benefits of the common market organisations for their products through the guarantee of a minimum price and the protection from world market prices through the agricultural levies. Financial solidarity: all expenditures following the introduction of common market organisations have to be covered by the Community budget. 33 TEC). in addition to the Treaty obligations. where prices are generally much lower than inside the Community. The objectives of the CAP were laid down in art. When they wanted to export their products to the world market. At the Stresa Conference in July 1958 on the introduction of the CAP the then Commissioner for Agriculture Sicco Mansholt succeeded in convincing the 6 to formulate. trigger intervention mechanisms and secure common external protection. 33 of the Treaty establishing the European Community (TEC)) and envisaged higher agricultural productivity. France with around 28% of the active population in the agricultural sector defended. together with Italy. the necessity of a specific treatment of the agricultural sector in the Treaty as a compensation for the advantages the envisaged creation of a customs union would give to the more industrialised states such as the Federal Republic of Germany. they could sell at those low prices and received export refunds paid by the EAGGF. three basic principles for the CAP: Market unity: free movement of agricultural products inside the Community and the fixing of common agricultural prices. from a political point of view. Taking into account the principle of financial solidarity. Secondly. At the time of drafting the Rome Treaty the six members were only self-sufficient in food production for some 81%. Prices played three roles: high prices are guiding production and lead to “higher agricultural productivity” (art. By this system the Commission hoped to be able to guarantee a “fair standard of living” to the farmers as well as “regular supplies” and “market stability” (art. market stability. regular supplies and reasonable prices for consumers. 144 . The intervention price. Community preference: products of Community origin should have preference over low-price imports from third countries (origin of agricultural levies for lowprice imports). The third factor was indeed the high number of farmers at that moment in most Member States and thus representing an important voting power. which is a certain percentage lower than the “ideal” or target price. 33 TEC). 39 of the Treaty establishing the EEC in 1957 (today art.Chapter 10 convinced of the importance of food supply and food security. On the basis of these objectives and principles a system was fixed in which the prices were the central component of the common market policy.

1. It became inevitable that these questions were raised in the mid-80’s at international level particularly during the Uruguay round of the GATT. pesticides. etc. The guaranteed price to farmer led to overproduction and surpluses. the landscape. The first CAP reforms in the 80ies and 90ies Taking into account the internal problems with civil society having their doubts about the CAP (tax-payers. once they had discovered the system contrary to the basic economic principles of supply and demand and that consequently they were paid even for products for which there was no market outlet.Chapter 10 3. which became the World Trade Organisation (WTO) in 1995. 3.. the external pressure in the Uruguay-round and the perspective of enlargement. Here we can find a ground for the introduction of direct payments. Indeed exporting countries became really upset with the system of having to pay levies when importing their low-price agricultural products in the EU or when competing on the world market with EU products which were heavily subsidised by export refunds. This last point became crystal clear for all consumers at the outbreak of the “mad cow disease”. Firstly the concept of multifunctionality was introduced meaning that a farmer is more than a producer of food but that he is equally responsible for the environment. 33 TEC the EU still has the obligation to care for “a fair standard of living for the farmers”. The Agenda 2000 and the Fischler reform of 2003 The Agenda 2000 reform continued along the lines of the McSharry reform: more direct payments to the farmers and reduction of the intervention price. which became first applicable through the McSharry reform of 1992. the EU had no other choice than to reform the CAP. By this decrease the farmer should lose a lot of money because the guaranteed price was decreased more to world market prices. THE NECESSITY OF CAP REFORMS In the 80’s the deficiencies of this system became obvious. Direct payments were therefore seen as a 80% compensation for the loss of income. It was the period characterised by butter and milk powder mountains and wine lakes to which the tax-payer had of course to contribute financially. environmentalist ).) and taking very little or no care at all of the environment and the quality of their products. Finally problems started with the outside world on the international trade aspects of the CAP. Since the farmer is producing also a ‘public good’ he should be remunerated by the EU budget for this. The farmers. knowing that according to art. they tried to increase their production by all means (insecticides.2. 3. These direct payments were equally an answer to the criticism raised in the GATT negotiations where the EU agreed to decrease the internal price support and the export subsidies. The consumer became unhappy because of the relatively high internal prices and quite often the lack of quality products. consumers. the quality of rural life. 145 .

replacing most existing direct aids. forestation of agricultural land and compensatory allowances in the less-favoured areas of the EU. This is the principle of decoupling. independently of what they produce and is based on the average payments they received in the period 2000-2002. It furthermore simplifies the CAP for farmers and administrators and also strengthens the EU position in the WTO Doha-round negotiations. This principle is linking the SPS to the respect of environment. Pillar 1 measures are 100% financed from the EU budget through the European Agricultural Guarantee Fund “EAGF” which replaces the EAGGF-Guarantee section as approved by the Agricultural Council of 30 May 2005 while pillar 2 measures will be co-financed by the European Agricultural Fund for Rural Development ”EAFRD” which replaces the EAGGF-Guidance section. The second basic principle of this reform is cross-compliance.000 euros per farm per year will not be reduced. 146 . The second pillar is dealing with rural development measures (see below. This allows farmers freedom to produce to market demands and promotes environmentally an economically sustainable agriculture. which is a move in favour of environmentally sustainable agriculture. The basic element is the introduction of a Single Payment Scheme (SPS) or single farm payment. animal and plant health and animal welfare standards and to the requirement to keep all farmland in good agricultural and environmental condition. For the new Member States the SPS is called Single Area Payment Scheme and allows payments of uniform amounts per hectare up to a national ceiling resulting from the accession agreements. The fact that money should be transferred from direct payments to rural development measures is a clear illustration of the present two-pillar system of the CAP. food safety. For the new Member States only “good agricultural and environmental conditions” are mandatory. The first pillar is dealing with market-related measures and direct aids to the farmers and as far as they still exist for some products with public intervention and export refunds. 4% in 2006 and 5% as from 2007 onwards. point 3 of this Chapter) and agro-environmental and early retirement schemes. which is a payment per year to producers. Finally the 2003 reform established also a fourth principle which is called financial discipline and which installs a mechanism for further reductions in payments when the overall ceilings on CAP expenditures. which is a clear shift from production support to producer support. However direct payments under 5. The modulation reductions will not apply in accession countries until direct payments reach EU levels. as fixed in the Brussels European Council in 2002 for the period 2007-2013.Chapter 10 The most fundamental reform was the one introduced by Commissioner Franz Fischler and adopted by the Council in 2003. The third principle is modulation. are in danger of being breached. In order to finance the additional rural development measures all direct payments (SPS and other still existing direct aids) will be reduced by 3% in 2005.

2 Now art. The move to a Single Market made it more imperative than ever to reduce the disparities between backward regions facing structural handicaps and to create more successful and prosperous regions within the European Community. support to agriculture was provided also in the expectation that enhancing the sector would in turn create direct and 1 Terluin. Hence the need for territorial cohesion or a more polycentric economic development. 158 TEC. The economic structure of rural areas The significance of agriculture as a source of employment and as a percentage of the national economy declines. while in rural areas the decline in farm population. Groningen. and in some place not engaged in any economic activity at all (in-migration of retirees).Chapter 10 4. Net population growth has been in urban places. Therefore. de Nederlandse Geografische Studies. art. has in many cases been offset by an increase in rural population who are not engaged in agriculture. small cities and regional centres1. the shift in the demographic structure of the rural population (ageing) not always reflects the growth of non-farm employment opportunities in the manufacturing and service sector. Rural areas are described as territorial entities with a coherent economic and social structure of diversified economic activities and may include villages. RURAL DEVELOPMENT AS THE SECOND PILLAR OF THE CAP Since the end of the 80’s and in particular since the Communication of the European Commission on The future of rural society in 1988 the awareness raised that if one should keep rural society as a fundamental part of the European model of society. Exploring differences in economic development. I. As long as agriculture was the dominant rural industry. a multitude of economic and social activities in rural areas had to be promoted beyond agriculture and forestry in order to contribute to sustainable development. J. The Maastricht Treaty (1993) not only strengthened this commitment but equally the legal basis for EU rural development policies. 2001. Consequently the commitment to achieving cohesion was laid down in the Single European Act of 1987. Studies on regional and cohesion policies indicate that population and economic activity have moved to urban centres and that there is often an unevenly distribution of economic activities over the EU’s territory.III-116) 4. In 1997 the Agricultural Council recognised that “the maintenance of a living rural fabric.1. which reflects the pattern of European society. Utrecht. Rural regions in the EU. anchoring them firmly in the context of EU efforts to achieve economic and social cohesion by adding the words “including rural areas” to Article 130 A2. while agriculture remains the primary land use. is an important objective”. It should also be noted that in the Treaty establishing a European Constitution the notion “economic and social cohesion” has been enlarged to include also the notion “territorial cohesion” (Part III. 147 .

In some parts of the EU. Rural areas might also benefit from the growing need to develop renewable energy sources. rural areas remain dependent on natural resources and a healthy natural environment. are all elements that cannot be transferred or recreated elsewhere and are considered by the OECD3 as rural amenities. such as tourism. For many of these economic activities.2. While there are many threats. sustainable development has been observed in certain rural areas. settlement patterns. from a policy dealing with the structural problems of the farm sector to a policy addressing the multiple roles of farming in society and. food production and forestry. despite important economic and demographic challenges. to biomass production. but also develop viable economic solutions for the population living there. 148 . Many jobs are becoming location-independent.and production-based industry. It not only includes the ongoing changes in agriculture in forestry. Paris. Rural development regulations went parallel with the Structural Funds regulations as far as the following periods are concerned: 1989-1993. cultural and social traditions. to information. 1994-1999 and 2000. cultivated landscapes. Rural development is a multi-dimensional and multi-sectoral process. Historic sites. such as micro-business. we see already the introduction of ‘new’ economy.2006. direct focus on enhancing employment in off-farm and non-farm activities. Natural and cultural heritage of rural areas should also be a major objective of rural development policy. Since agriculture is no longer the engine of economic development in rural areas the rural development policy needs a strong. there are also new opportunities for rural areas. from wind and solar parks. challenges faced in a wider rural context. we must not only set aside rural areas for natural parks and biosphere reserves. 4. The changes in Europe’s economy from material. but most may be considered as public goods. Growing environmental concerns on the part of the population could also bring new opportunities to the countryside. OECD. 1994. eco-systems. The proposed rural development regulation for 2007-2013 The EU’s rural development policy evolved as part of the development of the CAP. in particular. wildlife and flora. recreational areas.Chapter 10 indirect employment effects that would benefit the rural population. Rurality is therefore not necessarily synonymous to decline. software business and high-tech production sites. However. This kind of ‘off-farm activities’ are extremely important for the new Member States in full process of restructuring their agricultural sector in order to avoid depopulation of their often beautiful countryside. 3 The contribution of amenities to rural development.and knowledge-based services will bring new business to the countryside. but also the developments in rural industry. which are provided by some rural inhabitants but used mainly by urban people. If we want to preserve a high diversity of plant and animal species. and is also no longer synonymous to agriculture. Some of these amenities are marketable.

The Commission’s ideas are very clear. restoration of rural heritage. which the European Commission proposes to the Member States on its own initiative. however the Leader-philosophy will be maintained in the rural development programmes as it proved to be vital to increase the participation of citizens in local development decisions. The EU supports operating costs (around 2 billion euros for the period 2000-2006) of local action groups. high-quality and original strategies for sustainable development.g. LEADER is designed to help rural actors improve the long-term potential of their local region.Chapter 10 At this moment the draft regulation for rural development in the period 2007-2013 is on the table of the Council. forestation of agricultural land. LEADER represents a bottom-up approach based on the selection of the best local development plans of local actions groups representing public-private partnerships. The initiative LEADER LEADER (Liaison Entre Actions de Développement de l’Économie Rurale – Links between Actions for the Development of Rural Economy) is a Community Initiative. and natural handicap payments for less favoured areas (e. From the proposal we see that rural development policy will be concentrated on three basic axes: The first one aims at improving the competitiveness of farming and forestry and foresees the possibility of financing amongst others measures aiming at improving the human potential and restructuring the physical potential. animal welfare. The third axis deals with the wider rural development and illustrates the real multi-sectoral approach with measures aiming at increasing the quality of live in rural areas by financing measures such as diversification of the rural economy. cooperation projects between them and experimental pilot projects. when farmers have to work on steep slopes). 4. It also supports capacity building and prepares the ground necessary for the preparation of local development strategies.3. According to the Commission’s proposal for the financial perspectives for 2007-2013 an average of some 11 to 12 billion euros may be available yearly for rural development to which also the modulation system will contribute. which were learned from “Leader” experience. renovation of villages. 149 . The second axis is dealing with environment and land management and includes agro-environmental measures. services. Small local development projects based on the bottom up approach may be financed in each of the three abovementioned axes. As such LEADER will no longer exist after 2006 as a Community Initiative. Finally the draft regulation also wants to mainstream the local development strategies. which is a special financial instrument of structural policy. It is aimed at encouraging the implementation of integrated.

2001. small and medium sized enterprises.asp – WTO. Bibliography: – The contribution of amenities to rural development. – Terluin. might come to these areas and make them more attractive. Trade in Agriculture section: http://www. still plays an important role. craftsmen. Information-related services. Groningen.europarl. I.htm – Committee of Professional Agricultural Organisations in the European Union: http://www. de Nederlandse Geografische Studies. Relevant official documents and information can be found at the following websites: – European Commission.org/english/tratop_e/agric_e/agric_e. DG Agriculture http://europa. university education. OECD. Utrecht. 1994.eu. Rural development policy.eu. although no longer the dominant force in rural areas. such as micro-business. The debate on the CAP will continue for many years to come.htm 150 . Rural regions in the EU. Exploring differences in economic development.htm – European Parliament.int/committees/agri_home. high-quality health services. is designed to support the rural communities in which agriculture. SOME CONCLUSIONS The CAP has undergone fundamental changes compared to its origins in order to answer to the needs of civil society as well as international actors. which has to be regarded as a European priority.be/en/copa. and professional training (distance learning). and artisan activities.wto.Chapter 10 5. Committee on Agriculture and Rural Development: http://www. Farmers should be helped in the adjustment process to the reformed CAP in particular in the new Member States and the EU candidate countries.int/comm/agriculture/index_en. Europe’s emerging communication infrastructure also offers new possibilities in very remote rural areas. Paris. Listening to the recent discussions in the European Council on the financial perspectives 2007-2013. we may be sure that the 2003 reform was not the last one. J.cogeca. Socio-economic vitality of rural areas needs local employment beyond agriculture. such as banking.

In the veterinary and phyto-sanitary fields Community legislation consists mostly of very detailed directives. Community agricultural law – with the exception of the field of veterinary and phyto-sanitary legislation – consists mostly of regulations. However EU integration also meant significant threats to Polish agriculture: enormous costs of adaptation and of modernisation of the sector in order to meet the conditions for operating in the EU and minimise the gap in the level of development between Polish agriculture and the more modernised agro-food sector in the EU. Since agricultural Community law constitutes the majority of legislation adopted by EU institutions. and the availability of free capital flow and financial support. to transpose directives and assure on the legal level the application of the regulations and. INTRODUCTION Since 1 May 2004 Poland is one of the 25 members of the European Union. Prior to 2004 as EU candidate country. The substantial task of any candidate country is to implement the Community legislation. to assure the application of Community provisions by the national institutions. on the one hand. on the other hand. the farmers or food business operators in practice. Office of the Committee for European Integration. This was the pre-condition for Poland as well as other candidate countries in order to incorporate their markets into the internal market of the EU. The process of EU integration appeared to offer some great opportunities to Polish agriculture: access to the EU market. Warsaw.Chapter 11 CHAPTER 11 IMPLEMENTATION OF THE COMMON AGRICULTURAL POLICY IN POLAND Katarzyna Okon* ` 1. In order to present both aspects of implementing the CAP in Poland. Poland’s ability to implement and apply this law has constituted one of the key considerations in the pre-accession process. including the mechanisms of Common Agricultural Policy (CAP). Poland. The emphasis in the preparations for accession was therefore on the candidate country’s ability to implement and enforce the Community acquis. the expansion of the agro-food sector. 151 . the legislation was therefore directly applicable at the date of accession and did not call for transposition on the part of the candidate countries. which means. economy and law to those of the EU. the first part of this chapter will discuss the problems of the situation of Polish agriculture influencing the *Senior Specialist. Head of Agricultural Unit. this implied applying the mechanisms of EU policies from the very first day of the accession. Poland was obliged to adjust its policies.

mainly or exclusively to ensure food supplies for their families. The public sector.7% of Poland’s total area. A significant part of farmers. self-governments and agricultural holdings of mixed ownership with a dominating state-owned stake. 18% and the share of agriculture in the GDP amounted to approximately 3 %. As regards ownership of agricultural land. only about 23% of the land was in the hands of collectives or in state farms and 77% was owned by very small holdings with an average size of under 7 ha. 152 . 2. AGRICULTURE IN POLAND IN THE PRE-ACCESSION PERIOD In the pre-accession period Polish agriculture was (and in fact still is) an important sector of the Polish economy: out of the total population of 38. Utilised Agricultural Area (UAA) was ca. before the transition to a market economy in 1989.6 million (38. 14. it accounted for 51. However.2 million ha.500 and 9. with an average size respectively of 2. 16. the results of those negotiations will be briefly presented as well.e. In the second part of the chapter the problems concerning the implementation of Community agricultural law will be discussed. In Hungary for example. the share of agricultural labour in the entire active population in 2003 was ca. comprises “State Treasury farms” and state legal persons. most of the land in the CEECs was owned by large collective farms or state farms. 80% of the land area was in the hands of collective farms with an average size of 4. 60% of the land was owned by collective farms and a further 38% by state farms. of which 87% by private agricultural holdings (family farms). in particular those owning small area farms. i. At present Polish farmland is utilised by numerous entities varying with regard to ownership. which was an exception to the general picture. farm size as well as type and scale of production: Almost 95% of agricultural land is used by the private sector.500 ha.2 million.2%) inhabit rural areas. In the Czech Republic. are involved in agricultural production applying traditional methods. Since those problems inevitably were taken into account during the accession negotiations on agriculture. in the case of Poland.Chapter 11 application of CAP mechanisms.000 ha. owning 5% of agricultural land.

7 ha.3 million).4 of UAA). Enlargement of the existing farms is a permanent process supported by preferential credits. the pace of agrarian structure change is too slow. is the large differentiation of farm size from one hectare to several thousand of hectares. 1 850 000 agricultural holdings in total in 2003. In the northern and western part of Poland farm structure is dominated by large enterprises while the other regions are characterised by small-scale farming. However. The largest agricultural holdings were established on the former state-owned farms.1 of UAA)). 153 . The latter can be found in the private and public sectors alike. Spain (nearly 1. Greece (ca 800 000) and France (644 000). the biggest number in Italy (more than 2 million). however. In southern Poland the average farm size is 3. whereas in the northwest it amounts to over 20 ha of UAA. Italy (6. The farm structure differs significantly on a regional basis. due to the low profitability of agricultural production and the lack of capital. in certain EU countries it was even smaller than in Poland (Greece (4. and land prices remain at a relatively low level.Chapter 11 *As of June 2004 Source: GUS A characteristic feature of Polish agriculture. The average farm size in the EU in 2000 was 18.7 million agricultural holdings. In 2000 in the EU-15 there were 6. The problem of farm fragmentation occurs solely in the sector of private agricultural holdings. composed of ca.3 ha of UAA.

the number of people with tertiary.8%). The percentage of users with post secondary. At the same time abandoning farming or finding a new job is extremely difficult due to high unemployment in Poland and will require the commitment of ample funds in the long term. the structure of agricultural holding users in Poland is more favourable.7% in 1996 to 34.6% in 1996 to 5. The number of agricultural holding users with tertiary education almost doubled in 7 years (from 2. 154 . post-secondary or secondary education is much lower in rural areas than in towns. whereas that with primary. not complete primary and without school education fell (from 49. in order to improve. among others. A reduction of employment in agriculture.Chapter 11 As regards the education level in the farming sector. However compared to the EU-15 average. secondary vocational and general secondary education rose considerably. an increase in labour efficiency and elimination of hidden unemployment in agriculture are major issues to be resolved in Polish agriculture.1% in 2002). incomes of farmers’ families.

As compared to the results of the 1996 General Agricultural Census. conducted in Poland in 2002. 155 . Against other social groups. The number of persons living of work in agricultural holdings is constantly decreasing. Eighty per cent or 8 504 900 people were inhabitants of rural areas. mainly depending on the area size and the type of production. 27.4%.Chapter 11 According to the General Population and Housing Census and the Agricultural Census. 10 474 500 people. As compared to the remuneration of employees in other sectors of the economy.4% of Poland’s population. without mineral fertilisers and synthetic plant protection substances. app. This implies that 58. the number of people in agricultural holdings fell by 1 084 700 or 9. 70% of the agricultural population are only part time workers. while production costs are high.2% of the total rural population was connected with farming through a common household. Food production by organic methods in the clean and safe environment. Almost half of all farms are commercially oriented as they produce mainly for the market. However. i. the pay for work in agriculture is much lower. Similarly as in other countries. which is determined by soil quality. whereas that of people maintained by farmers or with nongainful sources of income (mainly old age and disability pensions) is increasing. The farms make up a considerable part of total housing resources. the potential of such production related to the clean environment is not fully exploited. growth hormones or genetically modified organisms is systematically increasing. farmers earned 36% less. the climate and a lower usage of agrochemicals for agricultural production. Source: GUS Land productivity in Poland is much lower than in the EU-15. farm owners in Poland have various sources of income. lived in households connected with a farm (area of more than 10 ares) user. The level of farms’ incomes and the share of particular categories in the total income vary. free of antibiotics. primarily due to a relatively low support for organic farms. The agricultural sector is unable to fully absorb its labour force. A representative survey of household budgets shows that a share of income generated from hired labour and self-employment remains at a low level in farmers’ households.e.

9% in 2003. After the meeting screening sessions began to determine the extent to which Polish law was in accordance with Community law. 156 . whereas in the case of commercial production the situation is reverse. forestry and hunting in GDP. the total agricultural production was valued at PLN 56. in particular pork. as well as milk and hen eggs Poland ranks among the 15 biggest producers in the world and in Europe.Chapter 11 Due to low profitability of agricultural production and difficulties in selling agricultural commodities produced on farms. Plant production fell by 21. Poland is a leading producer of rye and potatoes: the 2nd largest producer of rye in the world and in Europe and the 6th largest producer of potatoes in the world and the 2nd in Europe.1% in 1995 and to 64. Between 1990 and 2003 commercially-oriented production fluctuated from 62. Despite a fall in the value of plant production. Reduction of plant production and disadvantageous price relationship of agricultural products result in a systematic decrease in the share of agriculture.2%. The negotiation positions on agriculture were presented on 16 December 1999 and the negotiations themselves started on 14 June 2000.8 billion) and was by almost 10% lower than in 1990. which accounted for 17. The negotiation process started on 31 March 1998. As regards meat production. followed by the two parties developing position papers for each negotiation position. Source: GUS 3.5% in 1990 to 50. According to the General Agricultural Census conducted in 2002. when the first sitting of the International Accession Conference took place. its share in the total production continues to be higher than that of animal production.6% of its total area.3 million ha. As rye and potato type soils dominate. In 2003.8 million ha. whereas the value of animal production increased by 2. there was a growing tendency to leave agricultural land fallow and idle.3 billion (Euro 12. A large part of agricultural production is used for self-supply on farms and internal usage for the purposes of animal production (animal feeding stuffs). In 2003 the area of fallow and idle land diminished to 1. ACCESSION NEGOTIATIONS ON AGRICULTURE Poland applied to become member of the EU in 1994.2% in the period in question. the total area of arable land left fallow and idle was 2.

Chapter 11 3. the legal and institutional arrangements enabling the application of CAP instruments. Polish regulations ensured a higher level of phyto-sanitary protection than EU legislation. dry fodder and tobacco inputs. In Poland there are many small and medium meat-processing establishments. However. Poland’s requests in the accession negotiations In its negotiating position. it was necessary to apply a solution enabling spreading the transformation process of those plants over time. Poland was of the opinion that abandonment of the protection level existing on its territory as well as renunciation of standards applied to goods imported from other countries would lead to a sudden deterioration of plant and plant products health and. in turn. Therefore. Since their closure would have painful consequences of both social and economic nature. In certain cases. potato starch.1. At the same time many other establishments were adjusted to those standards and requirements. white sugar and isoglucose. The weightiest negotiating problems had to do with production quotas for milk. Some of them met EU standards before accession. a mechanism whereby the milk and dairy products failing to meet the EU standards on micro-organism and somatic cell content would be allowed to trade domestically and on third countries’ markets. The longer period for Polish milk suppliers’ adjustment to the EU’s quality standards (transcending the accession date) would help keep dairy cattle production at many farms. Poland proposed to apply. over 2-3 years after accession. 157 . Poland requested timely limited access to national market as well as export outside EU of meat products produced by those plants. They supply meat products adapted traditions and tastes of local communities. income and structural instruments. The most important Polish requests in this chapter included the following: That Polish agriculture will be covered by the CAP (compensatory payments) and that Polish farmers will participate in the benefits offered by price. which are fairly important to local labour markets. That the Polish market for food and farm produce will be incorporated into the European Single Market area. Poland also requested that beef (whose production at meatpacking plants not always meets all EU veterinary requirements) be admitted for trading locally and on third countries’ markets. which is so important for Polish agriculture. that some of the industries were unable to meet all technical and sanitary standards. That Poland will be assigned production quotas at a level reflecting the natural potential for environment-friendly agricultural production and guaranteeing stable sources of income for the farm population. by 31 December 2002. particularly in respect of the list of harmful organisms subject to obligatory control and special phyto-sanitary requirements. it was realised prior to Poland’s accession. Poland declared to introduce. to considerable losses for the Polish economy.

As far as agriculture is concerned the following was agreed: The 10 new Member States will gradually phase in EU agricultural direct payments between 2004 and 2013. when the heads of state and the governments of the former 15 EU Member States and the ten candidate countries reached agreement on a formula for enlarging the EU to encompass ten new Member States as from 2004. 158 . Latvia. Following the decision of the Copenhagen Summit. the Czech Republic. this system will perform the basic functions enabling effective administration and control of direct-payment flows into the Polish budget. The position paper pointed to the enormous financial challenges. Lithuania. 20 % in 2005 and 15 % in 2006. The elimination of internal borders was contingent on the total and effective introduction and strengthening of the system of veterinary and phyto-sanitary control. 3. the Slovak Republic and Slovenia should join the EU on 1st May 2004.Chapter 11 Poland demanded also access to direct payments upon accession. in the last stage of negotiations this offer was enhanced through the reallocation of some funding committed to rural development in the amount of 25% of this allocation in 2004. Agreements reached in the accession negotiations The accession negotiations were completed during the Copenhagen European Council 12-13 December 2002.2. Jointly with other candidate countries Poland negotiated two solutions to be applied solely in the new Member States: support for semi-subsistence farms. Poland was therefore seeking support for the establishment of the Integrated Administration and Control System and for its operation in the first three years after accession. In response to Poland’s postulates. which the introduction of the necessary set of CAP instruments (prior to the requested accession date) was going to pose. Poland. Also in response to Poland’s position. Once Poland is an EU member. Hungary. Cyprus. Estonia. Direct payments will start at 25% in 2004. A major condition to be met by Poland prior to accession was to ensure an adequate level of external border control. and 65% in 2006. 30% in 2005 and 35% in 2006 of the present system and increase by 10 percentage steps to reach 100% of the then applicable EU level in 2013. the EU agreed to increase topping-up ceilings for direct payments in the year 2004 up to 55% of the level in the current Member States. 60% in 2005. Malta.

support for less favoured areas or areas with environmental restrictions. This support will be available for 5 years after Poland’s accession and will consist of a grant of EUR 200.the initial offer was at a level of EUR 750 . The level of this payment will diminish as the farm adapts to EU requirements.financially more important. Poland has decided on that simplified system. The programme will allow farmers to undertake new activity or expand the farming activity they already pursue. food safety and quality as well as animal welfare.5 million tonnes the delivery sub-quota for the milk quota granted to Poland. per hectare in the first year. to a total level of 9. An annual financial envelope will be calculated for the new Member State according to agreed criteria and then divided between the utilised agricultural area. an enhanced rural development strategy was agreed worth € 5.38 million tonnes.the objectives of the farm’s development plan are not attained. As a result of negotiations. i.for 5 years. Poland will also have a transitional arrangement of one year for the allocation of milk quota to individual producers and consequently be exempted from the payment of additional levies in the first quota year. the new Member States have the option. invest in their farms. financial support by virtue of this facility finally reached the level of EUR 1250 .Chapter 11 and support for farmers adapting to EU standards. new Member States will be able to use rural development funds for schemes specifically designed to help restructuring of the rural sector. specific measures for semi-subsistence farms. If . of granting their farmers CAP direct payments in the form of a decoupled area payment (a simplified payment scheme).e. Another Polish negotiation achievement was the EU consent to increase by 1. Additional rural development measures will be financed from the Structural Funds (EAGGF Guidance sector). PLN 800. which will result in increased agricultural returns. a range of rural development measures (early retirement of farmers. The programme targeted at semi-subsistence farms aims to encourage the modernisation of farms and their adjustment to requirements of market-oriented production. Certain food establishments operating in some candidate countries have been granted 159 . Certain rural development measures have been adapted or created in order to reflect better the requirements of the new Member States in the first years of accession. setting up of producer groups. technical assistance. the money already expended will not have to be repaid. approx. From Day 1 upon accession. agri-environmental programmes. special aid to meet EU standards) will be co-financed at a maximum rate of 80% by the EU. improve financial liquidity and alleviate the adverse outcomes of the transitional period. Rather than applying the standard direct payment scheme applicable in the current EU. afforestation of agricultural land.in comparison to the funds available for the existing EU countries .after 3 years . The aim of support for farmers adapting to EU standards is to assist farmers in adjusting to EU requirements in environmental protection.1 billion for the years 2004-06. during a limited period. In order to tackle structural problems in the rural areas of the new Member States. This means that for a limited period. broadened in scope and .

7 in Malta. As far as phyto-sanitary issues are concerned for a period of 10 years from the date of accession Poland shall limit the potato varieties planted in Poland to varieties fully (laboratory and field) resistant to Synchytrium endobioticum (Schilbersky) Percival. Poland negotiated also a transitional arrangement of five years for the marketing of drinking milk. 57 in Lithuania. 97 in Latvia. the causal agent of potato wart disease.Chapter 11 a transitional period in order to upgrade to fully meet EU requirements. 56 in Romania. which does not comply with the EU fat content requirements. Poland may allow marketing until exhaustion of stocks of forest reproductive material accumulated before 1 January 2004 that does not meet all the provisions of the Directive. It has been agreed that Poland under certain conditions laid down in the acquis may use the term “Polish fruit wine” and that Poland may use the name “Polish wine”. Certain establishments have been granted a transitional period in order to upgrade to fully meet structural requirements for hen cages (only the slope and height of the cages). using separate production lines) the delivery of EU non-compliant raw milk has been accepted under the condition that the products must be specially marked and may not be marketed in any form in any other EU country. These include 52 premises in the Czech Republic. All establishments not subject to a transitional period will have to comply with the acquis on accession and their products will be able to be freely marketed within the EU. 54 in Hungary. 5 in Slovenia and 12 in Slovakia. products originating from those establishments shall only be placed on the domestic market or used for further processing in domestic establishments also mentioned above. These products must bear a special health mark. For certain EU compliant dairies in Poland until 2006 (56. 721 in Poland. Poland received also a 5-year transitional arrangement to set the threshold for the recognition of a producer group in the tobacco sector at 1% of the guarantee threshold for all production regions in Poland. As long as those establishments benefit from this transitional period. Poland negotiated a 3 year transitional arrangement to set criteria for the preliminary recognition of producer organisations in the fruit and vegetables sector at 5 producers. Poland negotiated also so-called “safeguard clause” applied when in specific 160 . Poland has also a transition arrangement for the market placing of certain plant protection products until 31 December 2006. Such milk may be marketed only in Poland or exported to a third country.

On one hand the adaptation of Polish law to the European standards must be taken in accordance with principles of the Constitution of the Republic of Poland and with the rules of the functioning of a democratic state of 161 . Since the Europe Agreement it was broadly recognised in Poland that bringing Poland closer to the legislation of the EU has not only a normative dimension. Beside this. 90% of legislative activity of EU institutions is devoted to agriculture (ca. including farmers and producers of food into the common social-economic organism of the united Europe which is the EU. to adopt veterinary and phyto-sanitary requirements. and upgrade food-processing establishments (milk and meat sectors). but also a dimension linked to ‘civilisation’: it would allow integrating the Polish society. The development of the capacity to implement and enforce the CAP and alignment with the agricultural acquis were among the medium-term goals. The delays in implementing the EU agricultural law were often caused by a number of challenges concerning the difficulty to reconcile normative solutions of the Polish with the Community legal system. 4. Poland had to use its best endeavours to ensure that future legislation is compatible with Community legislation. Nevertheless the process of normative adaptation of the Polish agricultural law to the law of the EU started not long before accession. 3 thousand acts a year) – Poland’s ability to implement and apply the acquis communautaire has constituted a key consideration in the preaccession process. The approximation of laws shall extend in particular to the “protection of health and life of humans. the measures taken by the Commission to prevent market disturbances under the general economic “safeguard clause” may include a system of monitoring of trade flows between Poland and other Member States. Among the short term goals figured the need to establish a coherent structural and rural development policy. and is dated at the turn of the years 1999/2000. animals and plants and consumer protection”. the Commission set the short term and long term goals for agriculture in Poland. IMPLEMENTATION OF AGRICULTURAL LAW INTO POLISH LAW Since Community agricultural law constitutes the majority of legislation adopted by the EU institutions – according to statistics ca. Difficulties must be serious and liable to persist or could bring about serious deterioration in the economic situation of a given area. Taking into account the specific problems of the agricultural sector in Poland. According to provisions of the Europe Agreement which came into force on 1st February 1994 the major pre-condition for Poland’s economic integration into the Community was the approximation of the country’s existing and future legislation to that of the Community.Chapter 11 agricultural sectors difficulties arise.

especially when an opinion on compatibility would have a binding character. 13 of the Council of Ministers of February 25. 16/94 of the Council of Ministers provided. In the course of the procedure established by a resolution. the already existing legislation was not covered by a control mechanism with an opinion on compatibility. However. As only newly created legal acts were assessed. As a result a large part of new legal acts (about one third) was excluded from assessment for compatibility. From March 1994 (that is from the time when the Law took effect) to mid-1998 over 2. around 50 acts were recognised as being incompatible with EU law and withdrawn from further work of the administration. with the provisions of implemented legal act as well as with general principles of law) the Resolution No. it has been obliged to assess the compatibility with EU law of all governmental draft normative acts: laws. orders or decisions of the Government. ordinances. in case they have to be agreed and approved by the Council of Ministers. 1997 Regulation of Cabinet work. In this respect. Assessment of draft legal acts for compatibility with EU law became a significant instrument of a proper influence on employees of ministries and central offices in the process of adjusting the law. that each draft of a legal act prepared as a bill to be submitted by the Government to the Parliament had to be scrutinised taking into consideration their compatibility with EU legislation. were also subject to changes incompatible with EU law when they reached the Sejm. In order to assure that implementation of legal acts is in line with Community law (i. 1996.e. like other acts passed by the Polish Parliament. In addition only government draft laws were subject to control. On the other hand however. weak points of the above-mentioned resolution have also surfaced. on the other hand those principles and rules should not impede the proper adoption of Community agricultural law into Polish law. In addition the European Integration Committee (a governmental organ. In order to uphold cohesion of the Polish legal system.Chapter 11 law. which extended the scope of procedure to draft normative acts and assumptions or theses of a draft law.500 opinions were issued on the compatibility of drafts of various legal acts with EU law. what stood in the way of carrying out the scrutiny of bills submitted by the Government to the Parliament was a controversy connected with the issue of interfering of a Government institution (that is the European Integration Committee) in decisions of a sovereign Parliament. Drafts that have passed the ‘test’. the procedure of compatibility assessment was replaced by the Law No. in March 1997 a Team of Experts for Harmonisation of Law was appointed as part of the European Integration Committee 162 . the Chairman of which is a member of the Council of Ministers) has been established by a Law of August 8.

the essential modernisation of veterinary and phytosanitary facilities was not budgeted. One year later. which have been passed. in particular with regard to some key instruments such as the IACS. and in enforcing those laws. aligning the management system for the market-organisation regimes with EU legislation. A significant number of laws relevant to agriculture was adopted. Significant efforts were required to strengthen administrative capacity in particular relating to the management of the CAP administration and in the veterinary administration at the central level. In its report in 1998 the Commission noted that significant further progress was required in the alignment of Polish legislation and in the economic integration of the agricultural and rural sectors. Current provisions for a rural development policy fell far short of the requirements facing Poland in preparing for accession. Efforts for the practical implementation of a number of mechanisms of the CAP were launched and a series of concepts for the implementation of CAP mechanisms was developed. the level of preparedness as well as actual implementation and enforcement of Community mechanisms in the field of agriculture remained low in general. Considerable progress was required in the establishment of sectoral market organisations. According to the report from 2000. However. Despite the above mentioned measures the European Commission opinions reflected in its monitoring reports on Poland’s preparations for membership on the legal as well as administrative or institutional adjustments in Polish agriculture were not very optimistic. The upgrading of veterinary and phyto-sanitary facilities to EU standards remained a core priority. setting up the Integrated Administration and Control System (IACS)1 as required by EU legislation and introducing product-promotion policies. The task of individual experts was to prepare in the area of a given field of law indispensable legal changes that will . In summary. In particular. the short-term priorities of the 1998 Accession Partnership have only partially been met. Still substantial work remained to be done at both legislative and institutional level: clarifying the role to be played by the institutions that would be implementing the EAGGF. No further progress has been done in the task of aligning veterinary and plant-health legislation. in particular with regard to legal adjustments. The restructuring of the agro-food industry required further efforts in order to become more competitive. The planning and budgetisation of the necessary institutional structures at the national and regional level remained outstanding. notably in the veterinary and phyto-sanitary fields. Poland made limited progress in adopting the acquis. 1IACS is an anti-fraud and expediture control mechanism for payments made to farmers under de EU's Common Agricultural Policy 163 . the report stated that certain progress was made in the adoption of the acquis. In the 2001 report the Commission noted.Chapter 11 by its Head.lead to compatibility of Polish law with EU legislation. that the preparations for the implementation of the Common Agricultural Policy were reinforced. in 1999.in a coherent and comprehensive way .

that Poland was essentially meeting the commitments and requirements arising from the accession negotiations. notably with regard to the veterinary and phytosanitary acquis. were on track for assuming their designated roles. the CMOs for milk.Chapter 11 As regards horizontal issues. According to the report from October 2002 some efforts were made by Poland to align its legislation. and phytosanitary issues (with the exception of potato ring rot and wart disease). there was no major change in Poland’s agricultural policy. wine. In the area of horizontal measures. Unless efforts were accelerated in these areas. It must have been ensured that the IACS would be in place if Poland was to be in a position to administer and control efficiently the CAP support schemes. The implementation of the IACS started later than anticipated. common measures. A detailed strategy for the implementation of IACS across the whole territory of Poland remained to be developed. Basic elements such as the animal identification and registration system or the land parcel identification system were not sufficiently developed. ARMA and AMA had to be assured. ARMA and AMA. organic farming. both paying agencies. fruit and vegetables. However. sugar. Poland made also some progress in legal harmonisation with regard to common market organisation but here remained much to be done to implement these legal provisions. Poland needed to give urgent attention to completing legislative alignment. there was a risk that functioning systems would not be in place at accession. The adoption of the Veterinary Act was a first step towards implementing the system. In the last report from November 2003 it was stated. the Farm Accountancy Data Network (FADN) and state aid. In order to be ready for membership. among the horizontal issues as regards quality policy. trade in live animals and animal products. Co-ordination between both bodies. little progress was made in strengthening administrative capacity and veterinary legislation. rural development. and their administrative capacity were further prepared. and faced considerable obstacles. animal welfare. Poland was partially meeting the commitments and requirements for membership in the areas of trade mechanisms. Of equal importance was the strengthening of administrative capacity in all areas to ensure the effective implementation of the acquis. in the veterinary field as regards veterinary control system in the internal market (with the exception of movement control of animals). sheep and pig meat. and in the veterinary field as regards animal disease control measures and zootechnics. Very serious efforts were urgently needed for Poland to be able to build up an operational IACS by accession. The status of the Agency for Restructuring and Modernisation of Agriculture (ARMA) and Agricultural Market Agency (AMA) as future paying agencies and main institutions for the management of the CAP was confirmed. beef meat and eggs and poultry. animal nutrition. among the Common Market Organisations (CMOs) as regards arable crops. 164 .

Urgent progress was needed in public health (in the upgrading of agro-food establishments). The same year the Law on Forestation of Agricultural Land and the Law on Animal Nutrition were adopted. When looking closer to the most important acts implementing EU agricultural law it can be noticed that the serious works on implementation of Community law in the area of agriculture started in fact very late.2004. at the turn of the years 1999/2000: In 1997 the Law on Eradication of Animal Diseases.5. the law was gradually repealed and replaced by veterinary laws from 2003-2004. In 2001 the Law on Early Retirement Measures in Agriculture and the Law on Organic Farming were adopted. The Veterinary Laws were gradually adopted in the years 2003 and 2004. As mentioned before the implementation of EU law was a pre-condition for Poland’s 165 . the acts were either amended or repealed with the effect from 1.2005. the Law on Legal Protection of Plant Varieties and the Law on Plant Protection. Poland will not be in the position to implement the acquis in these areas by the date of accession. movement control of animals. For the same reasons as the Laws on Market Organisations they were repealed with the effect from 1.5. Veterinary Checks and State Veterinary Inspection was adopted. The report stated clearly “unless immediate remedial action is taken. For veterinary issues. In 2000 the Law on Commercial Quality of Agro-food Products. Shortly before accession the Law on Organic Farming and the Law on the Protection of Geographical Indications were adopted. the Law on Health Conditions for Food and Nutrition. the Law on Financing Polish Agriculture from the Guarantee Section of EAGGF. urgent attention had to be paid to the adoption and implementation of four basic veterinary acts. animal products. Since even several amendments to this act did not ensure the complete implementation of veterinary acquis.” As already mentioned the process of the normative adaptation of the Polish agricultural law to the law of the EU started relatively not long before accession. Because they implemented Community regulations. In turn of the years 2002/2003 several acts were prepared and adopted: the Law on Rural Development.Chapter 11 There were serious concerns about Poland’s preparations to set up its Paying Agencies and to implement the IACS. Between 2000 and 2002 several Laws on Market Organisations were adopted. and with regards to plant harmful organisms (control of potato ring rot and wart disease). the Seed Law. Serious concerns remained regarding TSE. and the Law on Fertilizers and Soil Improvement were adopted.

However. which became a full member of the EU.pl/DesktopDefault. available under: http://www. it can be said with full certainty that the successful integration requires not only the implementation of EU legal achievements and adjusting legislation to EU law but also a proper and effective functioning of state administration structures and courts. Ministry of Agriculture and Rural Development.minrol. Warsaw 2004.Chapter 11 integration to the EU. Bibliography: – Agriculture and food economy in Poland. This can be achieved first of all thanks to the appropriate preparation of civil servants who are to implement and apply EU legislation. from the perspective of a country.gov.aspx?TabOrgId=1210&LangId=0 166 .

However. HOW AND WHEN? It is well defined what exactly the Romanian agriculture and rurality needs to achieve in order to comply with the EU requirements. As a result. which has a low performance that is non-commercially oriented and which has a very important share of subsistence households. The national administration needs to prepare an accelerated transition strategy. when pointing this out we address the application and the transposition of this strategy and not its formulation. AN EFFICIENT TRANSITION: WHO. The general frame under which we can place this ‘emergency’ transition consists of a rural area dominated by agriculture which is over-populated. INTRODUCTION The integration of the Romanian agriculture and rurality into the Common Agriculture Policy (CAP) is not an option but has become compulsory with the signature of the Accession Treaty between Romania and the EU in April 2005. it represents the reality to deal with when considering the future European dimension of the Romanian agriculture. There is also a clear need to identify and rank priorities and to prepare an updated working plan that should actively involve all stakeholders with the most important dimension: commitment. This period is extremely short given the number of tasks to accomplish and the number of important changes to occur in the very near future. Therefore the reflection should now orient more towards: Who. Romania.Chapter 12 CHAPTER 12 THE TRANSITION OF THE ROMANIAN AGRICULTURE AND RURALITY TO THE EU COMMON AGRICULTURAL POLICY Cosmin Sãlãºan* 1. which is already completed. How and When? The expectations from the CAP are different according to the involved actors. Timisoara. 167 . * Senior Lecturer in General Management and Extension Services at the Faculty of Agricultural Management. rather aged with a fragmented property background. the period of 2005-2007 will be crucial for the transition of the Romanian agriculture and rurality. Banat’s University of Agricultural Sciences and Veterinary Medicine. 2. Even if this picture is not very optimistic as it may appear to certain observers.

Chapter 12 An important specific effort concerns the increasing awareness of the farmers. about their unique farming option for the future as commercial farmers or about the alternative of continuing subsistence agriculture. In order to advance in this process the farmers need complete and coherent information about the transformations to be undertaken. more specifically. basic analysis and decisionmaking instruments. or whether they shift to another activity. opening consultations and dialogue. An important dimension to be mentioned here is represented by the inner communication. counselling. including specific activities concerning training. Whether they choose to become market-oriented farmers and operate as any other business. both direct and indirect: Direct communication towards the primary target . but also towards the other administrative bodies. including information-flow management that has to be improved urgently. The administration on all its levels will need to accelerate the upgrade and update efforts for their staff by integrating training sessions and systematic evaluations under their human resources management and development policy. guidance and support. Indirect communication should be oriented to the outside and aim at increasing the transparency of the entire transition process. Finally. Specific efforts will need to be spent on interfacing and communicating. 168 . farmers – and to the broader public unaware of the actions and the efforts spent inside central administration structures. maintaining or not their subsistence households. For both options farmers need advice. such as specific agencies or regional structures. such as other ministries in charge with activities in the field of rural or agriculture. directly or within the available media can greatly contribute to ensure the success of the entire transition process.represented by rural communities and. they need more than others all the support that can be granted. The objective should be: To perform a structural tuning and adjustment in order to improve the structural performance and/or create appropriate bodies where needed. and To develop adequate working instruments in order to increase the effectiveness of the administration’s actions.

however more than 40% are unpaid family workers and more than 50% are self-employed persons. which is relatively poor and lacking entrepreneurial spirit. In terms of resources. while the dropout rate is growing. The current situation is mainly due to a long period of isolation and a constant widening gap between the rural and the urban living areas. about 17% of the rural localities are connected to water supply systems. the agricultural area is 50% larger compared to the EU average and Romania will be the 9th largest state once it becomes a Member State of the EU.Chapter 12 3. approximately 3% of the villages have a sewerage network of less than 3 km and about 5% of the villages are connected to the natural gas distribution network. THE NON-AGRICULTURAL DIMENSION OF THE ROMANIAN RURALITY Several figures can prove to be helpful in broadening the understanding and the importance of the rural area as a living environment. One of the largest issues to address is the level of education. a resistance to adopt an associative approach and a generally very low level of involvement and participation in community life. The population of Romania is mainly employed in agriculture. it presents a large and unexploited potential. 169 . social. A very useful comparison can be made between Romania and the EU average (referring to the former EU 15). with far more dimensions than agricultural production. yet there is a critical need for a coherent strategy with clear priorities to be implemented in order to improve the situation. there is a low presence of vocational training. Only half of the villages have direct access to the main road network. A very clear picture of the human resource potential in rural areas can be achieved when analysing the relevant statistics: Over 7% has not graduated from primary school. the elements mentioned earlier are largely responsible for this situation. Other essential characteristics of the rural world in Romania refer to the human resources potential. In addition. and cultural. about 50% do not follow a high school education and less than 3% have a university diploma. In this respect. in all dimensions: economical. The critical situation of infrastructure in rural areas has a severe impact on any economic initiative and on the local people’s motivation to remain in these areas. Certainly.

Romania’s rural areas are areas of mono-activity. even for the up.Chapter 12 The major weak points of the Romanian rural areas are described in the following figure: At the same time. or to continue producing agricultural goods. This change will release an important labour mass. This process may prove to be painful for farmers. They will need to spend more efforts to produce in accordance with new quality standards. This means to start farming as a business. Under these circumstances. as already mentioned above. This is mainly due to the low productivity level in agriculture. estimated to over half of the current active population in agriculture. as the market will regulate their existence and wealth. with a weak diversification of the economic environment. the only valid option for the agricultural active population is to shift into commercial farming. to improve their production capacities. An important part of the subsistence households today will be maintained and 170 . This population will need support in order to reorient professionally and to start new activities. especially with the CAP in view. will count for about 60% of the total budget allocated for agriculture and rural development after the accession.and downstream agriculture industries. which can generate sufficient income for their families. the financial perspectives of the CAP for Romania are clearly indicating that the ‘rural development‘ pillar of the CAP. at least for the first three years after Romania’s accession to the EU. The low education level weights heavily on the entrepreneurial spirit. Currently. However this would need to be done on new bases: more market oriented and in accordance with specified quality requirements. to comply with conditions according to new regulations and they will have to compete on the same common market with other operators from the EU.

the payments to farmers. Romanian agricultural products will not benefit any more from import/export protection mechanisms when coping with competition from EU countries. The pressure of the open common market will affect most of the small producers. Several open questions remain: Where will the situation balance? How many commercial farms will appear? Moreover. The farmers will have to make their choice between supplementing their income level with other activities as main revenue source or become ‘real’ farmers. After Romania’s accession to EU. Reforms need to be based on structural assessment and the creation of agencies or other bodies. with regional connections and implications to be taken into account.Chapter 12 will continue to operate even if their production will not be marketed and will not represent the main activity of those respective families. CHALLENGES FOR THE PRESENT AND THE FUTURE The Government will need to spend an internal sustained effort to become a EU administration. This competition and ultimately the consumers will determine the transition process of the Romanian agriculture and rurality. One of the mid term challenges for the central administration is represented by the future decentralisation process that will lead not only to a reshuffling of personnel but also to an important transfer of the decisionmaking process to the regional level. Considering the transitory specifications negotiated with the EU. The availability of infrastructure remains crucial for rural development. including all types of direct financial transfer (direct payments. 4. state aids) will not be sufficiently high in order to protect the ‘natural’ economic consolidation of the farms. The economic environment will grant a large share to a focused support for nonagricultural activities and diversification based on quality assurance and food safety regulations. 171 . parallel to a communication/information policy and a human resources development policy. Even if its performance will not improve considerably on the short run. which will not necessarily give up their activity but will seek a professional recognition and representations in order to defend their interests. which means ‘economic operators’ who remain on the market. No economic development in the rural areas can be achieved unless the infrastructure improves. a national master plan has to be set up. what will be the remaining share of the subsistence farms? Any attempt of answer is hazardous.

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SECTION 4 EU REGIONAL DEVELOPMENT AND COHESION POLICY .

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This double disadvantage for European latecomers has led to concerns about their absorption capacity of EU financial inflows. This contribution seeks to provide an overview of the evolution of regional development cohesion policies at the EU level. * Chair of European Integration. Second.fuberlin. Beyond the currently ongoing negotiations on the size of budgetary commitments for the next programming period (2007-2013) there are serious considerations regarding the effectiveness and efficiency of policy interventions in new Member States. The accommodation of diversity in developmental needs and priorities is definitely the most pressing issue determining the course of future reform initiatives regarding not only budgetary matters but also the institutional design of the delivery system of structural assistance programs. The latter as latecomers to the EU face a number of fundamental challenges regarding their ability to take full advantage of opportunities to reduce their socio-economic disparities with older Member States.de/projekte/koutalakis/ 175 .fu-berlin. First.polwiss. The weak socio-economic conditions in the majority of new Member States or candidate countries means that they will have priority over other regions in the allocation of future financial commitments.de . regional development and cohesion policies face a number of fundamental challenges. 141 95 Berlin. the financial instruments and their fields of application. Email: koutalak@zedat. they often lack adequate institutional structures and capacities to effectively implement structural fund interventions especially at the sub-national level. INTRODUCTION One of the most debated issues in the recent and forthcoming EU enlargements is the financing of the new Member States. Internet: http://www. Otto-Suhr Institute for Political Science. local). Germany. the fundamental principles governing their implementation. and detailed requirements attached by the Commission for the absorption of structural assistance programmes at all levels of government (national. Structural weaknesses are evident not only in the less developed regions of the EU but also in urban agglomerations or sub-urban areas within the most developed regions. Ihnestr.Chapter 13 CHAPTER 13 EU REGIONAL DEVELOPMENT AND COHESION POLICY Charalampos Koutalakis* 1. The economic and social disparities within the EU amplify. Free University of Berlin. Given the limited size of the EU budget. regional. pre-existing disparities within the old Member States of the EU will not vanish.22. Although the centre of gravity of cohesion policy shifts to new Member States from Central and South Eastern Europe. they never had the possibility to influence EU regional development and cohesion policies according to their preferences and policy traditions.

A European Regional Development Fund (ERDF) was adopted in 1975 to contribute to developmental projects decided by national government. all lagging behind considerable the then EC GDP average. The abolition of barriers to trade and the free movement of persons. The necessity of a radical reform of the delivery system was crystallised after the southern enlargement with the inclusion of Greece (1981).2%. A large number of projects were cofinanced by the ERDF according to a national quota system with no explicit long term development priorities and multiplier effects. 176 . The adoption of the Single European Market Programme in 1986 and the conclusion of the Single European Act in 1988 signified a new era for regional development policies in the EC. capital and services were accompanied with considerations regarding the ability of less favoured regions to cope with competitive market pressures. In accordance to endogenous development economic theories. It took eighteen years for regional policy to gain momentum in EC political agenda in the light of the first enlargement including Member States (UK and Ireland) with considerable economic and social development problems coupled with a slow down of economic development due to the oil crisis in the seventies.Chapter 13 2. The Introduction of Integrated Mediterranean Programmes (IMP) for the 1986-1992 period provided for the first time the opportunity to the Commission to experiment with innovative approaches regarding both the policy contents and the methods and requirements attached to their implementation.1 Greece negotiated with the Commission the introduction of southern-specific economic instruments to counterbalance competitive economic pressures from the accession of Spain and Portugal both with similar economic orientation of primary and secondary sectors of their economies. the founding Treaty of Rome (1957) provides no explicit mandate for the adoption of an EC regional development and cohesion policy. Soon it was realised that this minimalist concept has serious shortcomings. FROM ROME TO MAASTRICHT AND BEYOND – THE EVOLUTION OF EU REGIONAL DEVELOPMENT AND COHESION POLICY Apart from a general reference to the need to consolidate economic unity between Member States. It was the first time that Community institutions were given an explicit mandate to pursue regional development 1 At the period of their accession southern Member States had comparable levels of economic development to the new Member States or current candidate countries (Greece 49. Spain 53. Spain and Portugal (1986).1%). policy interventions were directed towards the endowment of local productive actors to improve the quality of human capital (development of labour skills. The early regional development policy had an explicit re-distributional character. innovation through support of research and technological development and structural change. matching skills with labour demands).8% and Portugal 29. improvement of accessibility to markets through infrastructure projects. It is not only that founding Member States with the exception of southern regions of Italy had no significant economic and social disparities.

As it will be demonstrated in the following section these developments had significant repercussions for the balance of power between national governments. Development of the endogenous potential by measures for the support of local development and employment initiatives and the activities of small and mediumsized enterprises. These developments were accompanied by the introduction of novel financial instruments doubling the budgetary allocations devoted to the various structural funds (Delors I package. Such assistance is aimed at services for enterprises. a) The European Regional Development Fund (ERDF). Its scope of operations includes the following developmental objectives: Productive investment to create and safeguard sustainable jobs. created in 1975. transfer of technology. is one of the oldest financial 177 . Investment in infrastructure.Chapter 13 through an explicit article in the new Treaty that elevates economic and social cohesion and the need to reduce “disparities between the various regions and the backwardness of the less favoured regions” (Art 130a TEC) as the main objective of the EC. 3. of a more cooperative multi-level governance system of policy making. Successive EC Treaties of Maastricht (1992) and Amsterdam (1994) reconfirmed the centrality of these objectives. b) The European Social Fund (ESF). not always consensual though. THE STRUCTURAL FUNDS AND THEIR FIELD OF APPLICATION Before analysing the fundamental principles governing the application of structural funds it is essential to provide a more detailed reference to the various financial instruments and the policy measures and actions directed towards the alleviation of socio-economic disparities between European regions. Currently there are six distinctive financial instruments pursuing a broad range of policy objectives directed towards the promotion of economic and social cohesion. Its main aim is to promote economic and social cohesion by correcting the main regional imbalances and to contribute to the development and conversion of regions. created in 1957. However. is the main vehicle of regional development policies. subnational actors and EC institutions and stimulated the emergence. development of financing instruments. direct aid to investment. that was later in 1994 replicated through a second Delors package). provision of local infrastructure and aid for structures providing neighbourhood services Investment in education and health. the most interesting development was associated with the institutionalisation of significant innovations in the delivery system of structural interventions providing considerable leverage to the Commission to pursue genuine European developmental objectives.

It is divided into the Guarantee and Guidance sections with the first attracting the bulk of financial commitments since it seeks to assist the EC Common Agricultural Policy (CAP) through Expenditure on agricultural market organisations. Currently. Development of rural areas through the provision of services.Chapter 13 instruments at the disposal of EC institutions directed towards the facilitation of free movement of persons into the European labour market. Aid for early retirement. preventing long-term unemployment and providing support for those entering or re-entering the job market. c) The European Agricultural Guarantee and Guidance Fund (EAGGF). its main aim is to promote employment through: Developing active policies to combat unemployment. supporting entrepreneurship and job creation. and boosting human potential in research. Processing and marketing of agricultural products. is one of the oldest and budgetary most significant instruments since it concentrates approximately 40 percent of the EC budget. created in 1962. support for the local economy. Agri-environmental measures. Improving the participation of women in the labour market. created in 1993. Promoting a skilled and adaptable workforce. Development and optimal utilisation of forests. Developing education and training as part of a policy for lifelong learning. product quality and the environment). science and technology. to increase the competitiveness of structures and the development of viable enterprises in the sector. fostering innovation in work organisation. d) The Financial Instrument for Fisheries Guidance (FIFG). Compensation for less-favoured areas. Veterinary expenditure and information measures relating to the CAP. with the main aim to contribute to a sustainable balance between fisheries resources and their exploitation. to improve the value-added to fisheries and aquaculture products and revitalise areas dependent on them through financial assistance directed towards the: 178 . Rural development measures that accompany market support. Promoting social inclusion and equal opportunities for all. The Guidance section has a more explicitly territorial dimension seeking to promote the development of rural areas within the less favoured regions of the EC through policy interventions directed at providing: Investment in agricultural holdings (modernisation. encouragement for tourism and craft activities. Aid for the setting up of young farmers and vocational training. reduction in production costs.

cross-border and interregional cooperation (INTERREG). It includes two fundamental policy objectives. To assist the improvement of transport infrastructure through financing projects to establish or develop transport infrastructure and improve access to the Trans-European Transport Network (TEN). Its aim is to help the countries qualifying for its assistance (at the time it was set up Spain. Its actual operations are directed toward the strengthening of the capacities of certain Member States to embark upon swift harmonisation of their domestic regulatory regimes to certain EC policies imposing considerable adaptation costs. Economic and social conversion of cities and urban areas in crisis (URBAN II). Fishing port facilities. the most profound policy innovation in the area is the Commission’s strategy to promote targeting at the local rather than the regional level. e) The Cohesion Fund. Portugal. Despite their limited financial significance in relation to the instruments presented above. Fleet modernisation. Their distinctive characteristic is that they provide the Commission with discretion to act independently from central governments. Aquaculture development. Successive reforms of structural fund regulations have altered the number of programmes adopted in the framework of the CIs from initially twelve during the 19881994 period to thirteen for the 1994-1999 and currently only four as an attempt to promote coherency and coordination of developmental efforts. Ireland and Greece were included) to meet the convergence criteria for the Economic and Monetary Union and at the same time continue to invest in infrastructure. These programmes focus on: Transnational. though limited. f) The Community Initiatives (CIs). Processing and marketing of fishery products. Product promotion. directing structural assistance on specific policy areas that it regards as important or essential for the promotion of economic and social cohesion. created in 1992.2 The remarkable discretion given to the Commission to unilaterally determine the content of CIs has provided the former opportunities. namely: To assist the achievement of the objectives of the Community’s environmental policy through the financing of large scale environment projects.Chapter 13 Adjustment of the fishing industry. to expand its policy agenda to policy areas in which there is no explicit treaty mandate (e. was one of the new generations of financial instruments. Protection of marine areas. However.g. urban policy). the CIs have been employed by the Commission as flexible mechanisms that allow experimentation with innovative measures and actions that substantially diverge from those incorporated into mainstream policy programmes. were initially introduced by the 1988 reforms of the structural funds’ regulations. 2 Their total budget amounts for approximately 9% of the total budget devoted to structural funds 179 .

national and regional levels. and employment. Priority areas were reduced to only three. c)European territorial cooperation: Cross-border. Objective 3: Adapting and modernizing policies and systems of education. local). This principle signifies the departure from the financing of individual projects and requires the elaboration. of multi-annual development programmes that include a set of interconnected measures and actions that address all facets of territorial development 3 At the current proposals of the Commission for the 2007-2013 programming period geographical concentration is re-organised in three priority areas with slightly different content. training. at the EU. Agenda 2000 included significant reforms to the delivery system of structural assistance aiming at improving their efficiency and effectiveness as a response to the then anticipated eastern enlargement of the EU. 4. These are: a)The convergence of countries and regions (regions with GDP below the 75% of the EU average) and the regions concerned by the statistical effect. b)Regional competitiveness and employment: reinforce attractiveness and ensure that socio-economic changes are anticipated in other regions. regional. financed by ERDF and ESF). national. THE PRINCIPLES AND OBJECTIVES These heterogeneous financial instruments are coordinated through a number of principles governing the selection of eligible areas and the process of policy formulation. In their current form they include: a) The principle of geographical concentration of structural assistance in priority areas.3 b) The principle of programming. Objective 2: Supporting the economic and social conversion of areas facing structural difficulties (Industrial and rural areas with high long-term unemployment and or high poverty levels). implementation. The number of priority areas has altered over time. which is 33% of the population of the Union. Structural assistance targets geographical areas identified by a combination of economic and demographic criteria (GDP per head and population) in order to increase their effectiveness. trans-national and inter-regional (ERDF). 180 . This objective will be financed by ERDF. These are: Objective 1: Promoting the development and structural adjustment of regions whose development is lagging behind (for regions below the 75% threshold of the EU GDP per capita). Fighting inequalities and discrimination in the labour market (EQUAL).Chapter 13 Rural development connected to the reform of the CAP (LEADER+). In the first programming period (1988-1994) there were six priority areas. ESF and the Cohesion Fund. These principles have first emerged in the 1988 reforms of the structural funds and have been reconfirmed and enriched with novel elements in all successive reforms. monitoring and evaluation of policy interventions at all levels involved in the process (EU.

to establish a more clear division of responsibilities between the Commission and the Member States in the implementation process. c) The principle of partnership. the Commission’s proposals provide wider responsibilities to the Member States regarding the application of the main principles governing the implementation of the structural funds in order to improve efficiency. evaluation and financial control. First. to promote the ‘deepening and broadening’ of the principle of partnership with the more active participation of regional and local representatives as well as the social partners at all stages of implementation (programming. In practice. the Member State concerned and the competent authorities designated by the latter at the national. in order to prevent European development policies from becoming mere substitutes of national development efforts.Chapter 13 needs in a comprehensive way. In the evolution of the partnership principle. and ensures that the relevant assistance contributes to the reduction of regional disparities (Article 130a TEC). Second. This includes the reform of the principle of partnership with a dual aim. In practice. monitoring. In regional policies multi-annual programming includes the elaboration of Community Support Frameworks that specify the broad objectives at the EU level and their specification through Regional Operational Programmes and Horizontal Sectoral Programmes. additionality is verified in three stages of the policy process: 181 . Since 1988. In line with the subsidiarity principle. partnership establishes an administrative process whereby the involved authorities and the social partners at all levels of government cooperate in order to formulate regional development plans. effectiveness and transparency. local or other levels. regional. partnership has been viewed as a major procedural arrangement used by the European Commission to challenge the ways in which territorial development policies are formulated and implemented at the domestic level. This principle is the most significant policy innovation of the 1988 reforms of the structural funds’ regulations with significant repercussions for the balance of power between different levels of government involved in the process. implementation. monitoring and control and evaluation). additionality sets up a co-financing framework between the EC and national funds. It guarantees that structural interventions are in accordance to community interests through its involvement in strategic programming. In this context. The relevant regulations define partnership as close co-operation and consultation between the Commission. the 1999 revision of structural funds’ regulations provides for a radical redefinition of the division of responsibilities between all actors involved in the implementation process. The principle opened unprecedented opportunities for a wide range of sub-national governmental and nongovernmental actors to participate in the policy process. operationalise them and monitor their implementation. d) The principle of additionality. The Commission retains only a supervisory role in the process.

conditionality requirements are linked to the respect of the Maastricht criteria of macroeconomic convergence. information and publicity requirements. Relevant changes in socio-economic conditions.Chapter 13 – Ex ante: in the framework of negotiations for the specification of national and regional support framework programmes. It is essential to note that in cases of unjustified discrepancies between initial co-financing agreements the Commission has the right to initiate suspension of new financial commitments until national contribution reaches the level provided in the initial agreements. effective and transparent use of structural funds. management. where overall additionality is confirmed. In cases where Member States fail to comply with one 182 . Member States have limited flexibility to revise prior agreements due to negative economic circumstances. Steps on compatibility with Community policies. The results are presented in annual. Progress in relation to quantified indicators and targets. state aids. Steps on effectiveness (monitoring. The Monitoring procedure has two components. evaluation. At this stage contractual obligations are monitored and additionality is confirmed. – Mid-term: normally three years after initial approval. equality of treatment and overall compatibility with broad EU objectives of sustainable and competitive ‘knowledge economy’ and the EU employment strategy. for the Cohesion Fund. e) The principle of efficiency and effectiveness. environmental legislation. This is applied in cases where there is at least 5 percent fall in public revenues. mid-term and final implementation reports that provide an overview of progress regarding: Financial implementation of assistance for each measure (expenditure and payments received). which includes a wide range of issues related to monitoring. However. some revisions of the targeted level are possible in cases where the economic situation has resulted in developments of public revenues which differ significantly from those expected at the time of ex ante verification. This includes the verification by a clearly designated department (delegation by the Managing Authority) of compatibility of practices and procedures employed for the application of structural fund programmes with EC legislation on public procurement. First is the on-going monitoring that takes place on an annual basis through cooperation between the Commission and Managing Authority for management questions and the Commission and control authorities for financial control questions. Moreover. evaluations and financial controls of structural fund operations. – End of the period. use of technical assistance information and publicity system). Its main aim is to establish mechanisms that guarantee the efficient. At this stage co-financing obligations between the Commission and Member States are agreed. eligibility rules. This final verification serves as the basis for the negotiations between the Commission and national authorities for the next programming periods.

5. The Evaluation procedure takes place in three different steps. These include the establishment of adequate systems of reporting based on common methodologies for electronic exchange of information that secure prompt exchanges of data for Financial Plans and Payments. as the main feedback mechanism to the Commission and national authorities for reprogramming.Chapter 13 or more of the above criteria the Commission can initiate the process of temporary suspension of financial commitments. at the end of the programming period serves. The accounting principles provide either for separate accounting systems of EU and national contributions to the programmes or adequate coding so as additionality to be easily verifiable. Based on the quality of this information the Commission is responsible for controlling the efficiency of systems of financial control through on-the-spot checks and initiating suspension or cancellation of payments. CHALLENGES AND OPPORTUNITIES FOR THE NEW EU MEMBER STATES In July 2004 the European Commission adopted the legislative framework for the reform of cohesion policy for the period 2007-2013. – Ex-ante as part of the formulation of national and regional development plans. National control authorities are obliged to provide information to the Commission regarding aggregate financial data and aggregate data on progress of measures. – The Mid-term evaluation is undertaken by the designated managing authorities for each programme using independent experts. At this stage planning authorities are reporting the effects of structural fund assistance with emphasis on their impact on employment. environmental impact and gender equality. – The Ex-post evaluation. The Management and Financial Controls establish efficient systems for financial control in order to prevent and correct irregularities and ensure compliance of structural assistance programmes and processes used for their application with EU law. The new framework regulations reconfirm the fundamental principles governing the implementation of structural fund programmes but place considerable emphasis on a more simplified and targeted approach by providing considerable leverage to national authorities to define the main developmental objectives while reserving for the Commission competencies related to financial controls. Although the exact financial 183 . The aim is to assess the effects of structural assistance and suggest alterations to programmes in cases where certain measures and actions have failed to achieve their anticipated outcomes. namely performance indicators three times per year in order to justify claims for payments. transparency and accountability issues.

Chapter 13 commitments have not yet been finalised. the EU regional development policies challenge the fragmented patterns of policy-making and the lack of established links of interministerial co-operation. At the central level. Finally.3 billion over seven years. Despite the relatively limited financial commitments directed to the new Member States comparing to previous enlargements the principles presented above and the new framework of operations for the 2007-2013 represent a unique opportunity for new Member States to modernise and rationalise their domestic structures and patterns of policy making and strengthen domestic institutional capacities to absorb EU financial assistance. normative templates of reference. we can mention the incentives for the adjustment of the institutional structures for the formulation and implementation of regional development policies at all levels of government. to the adaptation of the content of regional development policies pursued at all levels of government to include a more comprehensive approach that combines physical planning. experience and expertise to facilitate effective implementation. These incentives relate first. social and economic development. Thirdly. the Commission proposals provide for the allocation of € 336. tending towards a more co-operative approach to policy-making through the formulation of effective local partnerships with other local actors having an interest in territorial economic and social development. At the local level. 184 . the EU regional development policies challenge the fragmented structures of territorial governance. The EU structural policies generate all enabling factors for effective institutional reform. institutional structures for the diffusion of best practices and drawing lessons from the experience of other EU partners and incentives for institutional adaptation through precise conditionality requirements attached to the absorption of financial assistance. The aim of the programmes will be to boost competitiveness and growth in an enlarged Union according to the Lisbon and Gothenburg strategies for sustainable economic development and competitiveness. They provide economic assistance. the revitalisation of urban areas and the modernisation of local economic base. The second type of incentives is linked to the adjustment of instruments used in territorial development policies to include not only legalistic regulations but also incentives for the development of human resources. sub-national actors find themselves exposed to challenges for the adaptation of their institutional apparatus in order to develop organisational capacities and acquire resources in terms of finance.

– Charalampos Koutalakis. Sheffield Academic Press. The Politics of European Union Regional Policy. 1997. Bruyllant. Luxembourg.eu. 1995. Multi.Level Governance or Flexible Gatekeeping?. The Domestic Impact of EU initiatives for Urban Development. 1995. Agenda 2000 for a Stronger and Wider Union. – Hubert Heinelt and Randall Smith. The European Union and the Regions. Oxford. Sheffield. Avebury. All information regarding the current regulations and the Commission’s proposals for the next programming period can be found at: http://europa. Brussels. Brookfield USA.htm 185 .Chapter 13 Bibliography – Ian Bache. Singapore. Cohesion policy and European integration: building multi-level governance. Policy Networks and European Structural Funds. Manchester University Press. 1996. – Commission of the European Communities. 1998. Office for Official Publications of the EC. Aldershot.int/comm/regional_policy/index_en. Sydney. Oxford. – Martin Rhodes. Clarendon Press. 2003. Manchester and New York. – Liesbet Hooghe. – Barry Jones and Michael Keating. Hong Kong. The Regions and the new Europe: Patterns in core and periphery development. 1996. Cities and the Structural Funds. Oxford U P.

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ISPA and SAPARD projects have gradually been set up and specialised in handling individual projects. the Implementation Agency of Environmental Investment Project. The National Fund operating within the Ministry of Finance has specialised in the financial management of EU funds in the Slovak Republic. As for the absorption capacity. the pre-accession programmes have contributed to progresses in coordination. the National Agency for Development of SME’s. the Slovak Railroads Implementing Agency. Regarding the implementing agencies. This caused problems of efficient programming and sound implementation. However the low remuneration of administrators made it difficult to recruit staff with required know-how and professional experience. evaluation and financial management. LESSONS LEARNED FROM ASSISTANCE TO SLOVAKIA THE PRE-ACCESSION EU The preparation of Slovakia for EU membership was facilitated by the pre-accession instruments.Chapter 14 CHAPTER 14 IMPLEMENTATION OF REGIONAL DEVELOPMENT POLICY . Office of Government of the Slovak Republik 187 . Section for European Affairs. environment and transport building (ISPA) and support to agricultural and rural development (SAPARD). and to the improvement of administrative capacities for project cycle management (project implementation). In principle. monitoring. harmonisation of legislation and economic development (PHARE programme). Slovakia has been able to use up to 95 % of PHARE funds since 1998. the Regional Development Support Agency. The pre-accession assistance aimed at capacity building. The Aid Coordination Unit (administrative body) managed by the National Aid Co-ordinator started the coordination of EU assistance at national level in 1996 and gradually developed the relevant expertise in this field. the administrative staff increased during the entire pre-accession phase. up to 95 % of SAPARD funds since 2002 and up to 120 % of ISPA funds since 2000.EXPERIENCES OF THE SLOVAK REPUBLIC Silvia Matúšová* 1. The positive effects include also the gain of experience and the increase of the absorption capacity. programming. Department for EU Affairs. young administrators have changed to the private sector shortly after gaining sufficient experience in the public sector. the Slovak Road Administration Implementing Agency. These agencies are the Central Financing and Contracting Unit. * Director. The implementing agencies dealing with PHARE. and the SAPARD Paying Agency. In particular.

EU legislation does not contain any binding provisions which would outline the principles of public administration. the relations towards the state administration bodies. The interim evaluation on the level of achieved outputs of selected PHARE projects was done in 2001-2002 by contracted EU evaluators in co-operation with the National Evaluation Representative. The basic features of an operational public administration from the point of view of chapter 21 (Regional Policy) are determined by two factors. the public administration must be capable to manage the administration of EU funds in compliance with the given rules. Secondly. The absence of evaluation of the use of EU funds in the pre-accession period has proved to be a weak point in the formulation of a coherent regional policy strategy that could have served as a basis for negotiations in chapter 21. the public administration has to respect the principle of subsidiarity. no overall evaluation of the pre-accession instruments has been done by national authorities or independent evaluators. The Act on Self-governance of Upper-tier Territorial Units (2001) legalised the establishment of 8 self-governed regions in the country and identified their competences. Firstly. the municipalities and other legal subjects as well as the financing. Therefore it is difficult to determine with certainty the real economic impact of EU pre-accession assistance on the overall economic development of Slovakia. 2. Among other acts and amendments in the framework of the public administration reform. It included the following legislative and nonlegislative actions: The amendment of the Constitution of the Slovak Republic in 2001 created the basis for the implementation of the public administration reform. However. The public administration inherited from the previous regime was characterised by a high degree of centralisation and a low degree of engagement of regions in the decision-making process related to development plans and programmes. The Strategy for Public Administration of 1999 was the first step for the modernisation of the public administration in Slovakia.Chapter 14 The monitoring of the project implementation status was carried out by the National Coordination Unit and external monitoring and assessment experts. including the competences in the field of spatial planning and regional development. THE PUBLIC ADMINISTRATION REFORM IN SLOVAKIA One of the basic measures which were necessarily carried out in connection with the preparation of the country for the Structural Funds and the Cohesion Fund was the decentralisation and the modernisation of the public administration. the most significant amendments concerned the amendments to the Act 188 . The Act on the Transfer of some Competences from the Local State Administration to Municipalities and Upper-tier Territorial Units (2001) has provided the legal framework for the transfer of more than 300 competences from district and regional offices on municipalities and self-governed regions.

This meant the inclusion of a new specialised agenda taking account of the EU methodology and the EU requirements (preparation of operational programmes. and the amendment to the Act on the Property of Municipalities. The overall requirement of the Commission consisted in asking the public administration to demonstrate the capacities for implementing the acquis. material and technical means. this concerned mainly the units of administration and management of structural funds in the Ministry of Finance and the units for the preparation of operational programmes (in all relevant ministries) as well as the monitoring committees. for the cash flows and the mechanisms of co-financing. the corrective measures) and stressing the need for strengthening the human capital in line ministries and central administration bodies and the training of civil servants. Posts and Telecommunications. Ministry of Agriculture. the regional development and the co-ordination of regional policy came under the responsibility of the Ministry of Construction and Regional Development. the development of programming documents and the implementation of Regional Policy are shared by other ministries in Slovakia (Ministry of Environment. The Slovak government adopted in 2002 a decree referring to the advancement of the building of managing and administrative structures for EU funds on central and regional levels. the provision of financial. control and evaluation capacities development. their training and preparation. setting up rules and procedures for the selection of the projects. to the Act on Budgetary Rules. Ministry of Economy. It also involved creating an institutional capacity based on the selection of proper civil servants. Ministry of Labour. THE INSTITUTION BUILDING AND ADMINISTRATIVE CAPACITY BUILDING IN REGIONAL POLICY IN SLOVAKIA In the pre-accession period the building of capacities was explicitly stressed in several Commissions’ reports on Slovakia’s preparedness to fulfil obligations in order to be ready for EU membership. the financial control. the overall development of Regional Policy.Chapter 14 on municipality governance. structures and competences for cohesion and regional policy which were supposed to be fully operational and able to apply EU regulations and procedures for structural funds. The strategic priority was the increase of the quality of public administration. establishment of implementation system. Ministry of Finance. 3. Ministry of Transport. The inter-ministerial coordination was implemented via the Governmental Council for 189 . operational management. The process of institution building did not mean only the establishment or the restructuring of national institutions through changes in legislation. Based on the Act on Competences of Central Administration Bodies. to the Act on the Property of Upper-tier Territorial Units. As the Regional Policy itself represents a broader area which also covers other sectors. Social Affairs and Family and Ministry of Education). especially in the process of learning by doing.

regional aid and the state aid for small and medium size entrepreneurs. the state administration bodies. At present. via the regular inter-ministerial co-ordination meetings and via the Preparatory Committee for Structural Funds of the EU.e.Chapter 14 Regional Policy. The latter committee had coordinated the elaboration of the National Development Plan. the non-governmental organisations and others) in the process of programming. mainly in regions lagging behind. 24 regional development agencies operate in Slovak regions. they carry out the monitoring and evaluate the development on the territory of the region. HARMONISATION OF THE LEGISLATION RELATED TO REGIONAL POLICY Besides the legal norms associated with the public administration reform. Pursuant to the Act on the Support of Regional Development the municipalities together within the region have to elaborate the programme of economic and social development. This has led to changes and modifications in Slovak legislation with the purpose to put away obstacles and to enable the full use of EU funds: The amendment to the Act on State Aid specifies the conditions for the provision of state aid in sensitive sectors. These bodies also coordinate the activities of all stakeholders of regional development. They represent the institutional co-ordination with respect to the ‘principle of partnership’. 4. the regional selfgoverning bodies. other norms and pieces of legislation were modified and amended. The EU Regional Policy is covered by a set of regulations which are binding for EU Member States and directly applicable. The development of concepts and strategies became the competence of these regional bodies which were set up in 2002 and started to produce the programmes of economic and social development of the regions. The ‘principle of partnership’ as leading principle of Regional Policy means the collaboration of all stakeholders (i. implementation. monitoring of measures of regional policy. the enterprises. Regional development agencies fulfil the tasks of facilitators in regional development. The regional and local levels were represented by self-governing bodies. The ‘principle of partnership’ was embedded in the process of establishment of the National Monitoring Committee which also supervised the preparation of the National Development Plan. The Act on the Financial Control of Administration Bodies extends the competences of the administrators of the state budget and the administration 190 . After the accession to the EU the committee was transformed into the Monitoring Committee for the Community Support Framework. After the accession to the EU it was transformed into the Committee for Structural Funds and Cohesion Fund and serves as the body co-ordinating the management and the implementation of the National Development Plan. They co-ordinate the investment activities and the regional development programmes by utilising the assistance from EU funds.

The act stipulates the issues of ex-ante financial control in the process of payment of expenditures. This chapter referred to the development of programming documents and to the institutional set-up and the establishment of entirely new administrative structures on the central and regional levels which had to demonstrate the capability to manage and to administer EU funds. From the aspect of Regional Policy and the administrative division of the country. 5. the financial means of the state budget as well as EU financial means. the Act on Competition. 191 . Since the existence of the Slovak Republic as an autonomous country from 1 January 1993. Other significant acts and amendment to acts included the Act on Public Procurement. the competences include now the control of EU funds. The Act of State Treasury sets up a system of state treasury. municipalities and upper tier territorial units. The Supreme Audit Office is entitled to control the government and the ministries.e. The chapter was ranked among the most difficult negotiations chapters. ‘additionality’). The amendment to the Act on the Supreme Audit Office has extended its competences with reference to the use of EU structural funds. The Act on the Support of Regional Development specifies the competences in the area of regional development in compliance with EU legislation. but the first Integrated Plan of Regional Development (a prerequisite for the application of pre-accession assistance) was adopted by the Slovak Parliament as late as in 1999. the Act on Spatial Planning. including the basic principles of economic and social cohesion in the EU (programming.Chapter 14 bodies for financial control. sets general principles of financial management in public administration and identifies the tasks of public administration bodies during the control of the administration of public means. and other institutions. the Act on Accountancy. to legitimise the new self-government structures and to complete changes in regional structures. i. The Act also sets the basic rules. Slovakia had to find a new territorial architecture. as it included the overall complex topic of the preparation for the use of the financial means from Structural funds and the Cohesion Fund. The weak point of Slovakia in the negotiations was the lack of a well elaborated and coherent Regional Policy strategy. aims and ways of financial control and internal audit. The Act on Financial Control and Internal Audit modifies the system of financial control in public administration. The amendment to the Act on Budgetary Rules legitimises the administration of the EU financial means. the country had to overcome the heritage of the previous regime of centralised economy. other central administration bodies and subordinated legal subjects. The basic principles of an integrated Regional Policy were defined in 1991. principles of ‘partnership’. THE NEGOTIATIONS OF SLOVAKIA ON CHAPTER 21 Chapter 21 – Regional Policy and the Coordination of Structural Instruments – was opened on 30th March 2001 and preliminarily closed on 29th July 2002. and the Act on State Statistics. The EU funds are included into the budgetary process and are administered as the financial means of the Slovak state budget.

the clear identification and the expression of priorities as a key issue. The Roma community must be integrated into every SOP and OP. 192 . In September 2003 the Slovak Government presented the strategic goal for the NDP: to achieve 54 % of the GDP per capita compared with the EU average by 2006. the outcome of negotiations in chapter 21 is considered with certain criticism which is linked to aspects of restrictions in agricultural and rural development (i. which was adopted by the Government in March 2003 and declared eligible for further negotiations. a set of recommendations was included into the re-drafted NDP document. At present. economic growth and competitiveness of regions. at the same time the negotiators had to stick to the schedule of negotiation. notification of state aid schemes. when the decentralisation of the public administration was initiated.e. The conditions for smooth implementation must be in place (administrative capacities. In respect to the NDP. to identify a clear strategy based on principles of growth poles.before 1 January 2004). After rounds of assessment by the European Commission.e. to stress balanced development in economic and social fields. The simplification and the concentration of goals of the NDP and the Sectoral Operational Plans (SOP).Chapter 14 The National Plan of Regional Development (NDP) required by the EU as a precondition for the programming and the implementation of post-accession assistance was adopted in 2001. the food sector is excluded from EU funding in favour of agrarian-processing subjects as determined by EU regulations on Cohesion and Regional Policy) as well as restrictions in industry (i. the elaboration up to a detailed level. the struggles over the division of competences in Regional Policy between the central government and the municipalities. The municipalities obtained the competence for regional planning as late as 2002. The negotiation position of the European Commission on the Community Support Framework and the NDP was received by Slovakia on 24 July 2003. The necessity to confirm the availability of co-financing for 2004-2006 for all activities that will be supported by funds. The position conveyed the following demands for the accomplishment of the Slovak NDP: The need to strengthen strategic elements. legislation. Negotiations started in a period when Slovakia had to settle the contradictory proposals on the territorial and administrative division of the country. The clarification and the precise description of the national policies and their relations to structural funds. exclusion of mining and steel industries from EU funding). project pipeline . to consider inter-regional differences. the Slovak Government adopted a governmental resolution in June 2002 on the Content and the Organisation of the Elaboration of the NDP and set the deadline for the end of 2002.

Chapter 14 The positive outcome of the negotiation was the pressure on the adoption of relevant legislation. Decreasing quality of life especially with rural population. The negotiations also accelerated the understanding of national authorities about the necessity to define the relevant architecture and to build administrative capacities and to make them operational. Opportunities. The rural development strategy has become part of the regional development strategy. Insufficient functionality of research and education. THE NATIONAL DEVELOPMENT PLAN AND THE REGIONAL DEVELOPMENT IN SLOVAKIA FOR THE PERIOD 2004-2006 The main areas for support of regional development during the first three years of Slovakia’s membership in the EU (period 2004-2006) are defined in the NDP. Insufficient level of technology and innovations. The starting point for the strategy defined in the NDP was the SWOT analysis1 based on the relevant EU regulations. The situation of the Slovak economy was characterised by the following key disparities and main determinants of development: 6. The main aim of the NDP is to increase the competitiveness of lagging regions by respecting the sustainable development and by lowering the difference in GDP per capita in Slovakia compared to the EU average. Insufficient use of growth potential of regions. from the point of view of structural policy instruments. Structural problems in entrepreneurial sector. Insufficient quality of labour market operation.1. The NDP has defined the framework for the EU assistance allocated by Structural Funds and the Cohesion Fund of the EU. will be considered as Objective 1 regions (with the exception of the Bratislava region). Low level of the fixed capital in regions. the regions of the Slovak Republic. Threats analysis 193 . Key disparities Low economic effectiveness of regions. This decision defined the way of programming and the way of use of EU funds for the development of regions and rural development. 1SWOT analysis= Strenghts. 6. The negotiations confirmed that after accession to the EU. The SWOT analysis defined the main characteristics of the Slovak economy for the programming period 2004-2006. Insufficient level of traffic service and environmental loads. High imbalance between the offer and the demand of labour. Weaknesses.

Other strategic documents for the regional development harmonised with the NDP include the Single Programming Document for NUTS II (Bratislava Objective 2 and Objective 3 region). focuses on the following areas: Human resources. Objective 2. The affect on the level of relations among the production factors. enterprises) and from the intervention objectives (Objective 1. non profit organisations.Chapter 14 6. The ratio of co-financing is dependant on the type of the recipient of the financial assistance (i. the documents for the INTERREG IIIA programme and the Strategy for Cohesion Fund. The strategy had to respect also the condition of sustainable development and was focused on the following global objectives: The growth of competitiveness of industrial production and services. Modernisation and development of basic infrastructure. Objective 3 for the period 2004-2006). Fixed capital. Global objectives Having identified the key disparities as well as the main determinants of development. The growth of employment based on qualified and flexible work force. The development of infrastructure supporting the balance of regional development. Structural changes increasing the overall productivity of stakeholders. Mobilisation of growth potential of regions. Development of SMEs. Main determinants of development Stable business environment in favour of investments. as defined by strategy documents. Increase of adaptability of work force. the following step was to develop the country’s strategy in full respect of the legal framework for interventions from EU funds.3. public administration bodies. From the point of view of the growth potential of regions. Improvement of the labour market operation. Modernisation of educational system. Infrastructure. 194 .e. 6. the financial support from EU funds.2. The development of multifunctional agriculture and rural development. The key role is played by the public finance from the EU and the Slovak Republic (public and private funds) which provide the financing and the co-financing of the individual areas of regional development. The implementation of the global objectives was elaborated into the system of priorities and measures in the framework of the Community Support Framework (CSF) and relevant Sectoral Operational Programmes (SOP).

g. The goal can be achieved by measures increasing the employability. The support of investments in agricultural enterprises (e. improved productivity and marketability of agricultural products. The support of the fixed capital focuses mainly on: The support of investments in industrial production (extension and modernisation of existing industrial branches). as well as measures increasing the equal opportunities for men and women and measures increasing harmony between family life and work. etc. 195 . construction and reconstruction of objects and the increase of their standard in the area of education. social services and culture as well as information society development). The construction and development of local infrastructure (e. The growth of competitiveness in industries and services (including the interlink between the knowledge based potential and the business practices. construction on behalf of the security of health of population and preservation. renewed agricultural production potential damaged by natural calamities. accessibility and provision of transport services). The support of the relations among the production factors with respect to the GDP focuses mainly on: The improved operation of the labour market (labour market services promoting employability). modernisation and procurement of technology equipment. protection and renewal of environment). The support of investments in tourism development (construction and reconstruction of objects facilitating the frequency of tourist visits of the region). Roma ethnic minority.Chapter 14 The assistance focusing on human resources development foresees the increase of education and the qualification level and the development of key competences with the main aim to increase chances on the labour market and to achieve the overall goal to make better use of the human potential of regions. public health.). decreasing the social exclusion (target groups as long-term unemployed.g. The improvement of environmental infrastructure (e.g. diversified agricultural activities.g. The intervention support in infrastructure focuses on: The modernisation and development of transport infrastructure (e. handicapped persons. construction and reconstruction of storage houses). The development of basis for multifunctional agriculture and the activities associated with rural development (e.g. the more effective use of energy sources and the better utilisation of natural and culturalhistoric potential for tourism development). developed municipalities and preserved rural heritage).

At the same time it would represent the break-through in the implementation of the economic policy of the Slovak Republic. In: From Policy Takers to Policy Makers. the assistance from the EU funds will support the regional development. Eriksson. Stockholm. a growth of the labour productivity is expected. it will contribute to the economic growth. Daniel. Generally speaking. the fixed capital in regions increase and the spread of the fixed capital in regions together with structural changes will become more effective. Swedish Institute for European Policy Studies.Chapter 14 6. being for the first time founded on the principles of strategic planning.build. Background and Objectives.sk 196 . Jonas: Chapter 1. Bibliography: – Tarschys. the view prevails that the National Development Plan was designed in a too complicated way and even though it was reduced from original 11 operational programmes to 4 in the final version. to the creation of jobs and to the increase of the competitiveness of regions. Expected results In compliance with the above mentioned strategic documents for the use of financial assistance from EU funds and the ex-ante evaluation of the strategy. – The National Development Plan of the Slovak Republic for the period 20042006: www. that the unemployment rate will decrease. Some of them also showed little understanding in principles of EU funding and the necessity of national co-funding. it remained rather unintelligible for those applicants who have little experience in project development. it is realistic to expect that by the end of the programming period 2004-2006 the present growth potential of regions will be used more effectively and even that it will be further developed.4.gov. 2005. It can be foreseen that the human potential in regions will be better used. At present. Adapting EU Cohesion Policy to the Needs of the New Member States. With respect to the level of production determinants in relation to the GDP.

Romania. considering the fundamental objective of economic and social cohesion that particularly focuses on regional development policy via its horizontal dimension. Paper. In this paper the institutional dimension of the Romanian regional policy will be mainly discussed in the context mentioned above. self-reliance and development with the challenges and opportunities of globalisation processes seen at both national and international level. regional policy instruments in an acute shortage of financial means context. the physical structure for a competitive economy. the reform of enterprise structures. the new role of local communities. 1 Green * Professor 197 . 1997. Regional Development Policy in Romania. This question has got a major significance for Romania in the process of accession to the European Union. The elements of the structural reform. The speed of reform has been finally responsible for slower or faster increase in regional disparities. Romanian Government and European Commission. But the basic question is whether after a period of growing interregional disparities a process of “spatial economic convergence” will start in longer run. etc. combining the need for local identity. the experience of former socialist countries shows that transition has deepened regional disparities because market forces gradually freed up replaced the factors that used to control the economy1. of Regional Economics at the Academy of Economic Studies of Bucharest.Chapter 15 CHAPTER 15 REGIONAL DEVELOPMENT POLICY IN ROMANIA – INSTITUTIONAL TRANSFORMATIONS AND FUTURE CHALLENGES Daniela Luminiþa Constantin* 1. namely the institutional and legislative framework for the market economy. Phare Programme. regional institutional framework and the question of decentralisation. the impact of European integration. human capital and attitudes have entailed specific concerns at regional level in terms of restructuring regional economies. As many researchers have noticed. with the aim of the future integration in the European Union’s structures in view. INTRODUCTION The regional dimension of transition strategy and reform in Romania has had to be integrated in a complex outlook.

2 Green Paper. To reduce regional disparities among Romanian regions. the government had to admit that the problems of regions. 3 As will be mentioned further in this paper. necessary to be considered for bridging the gap between words and facts in the debated about decentralisation. 1997. spatial networks. 198 . of local communities represent key elements for the realism and coherence of this strategy. They combined the concerns with transition and reform processes at regional level with the actions that have to be undertaken for the future integration in the European Union’s structures. the regional dimension of the corresponding Romanian strategy and reform was paid little attention for many years starting with 1990. urban development and physical planning. The elaboration of this strategy was followed by a programme for regional policy analysis and development established within the framework of PHARE by the European Union and the Romanian Government. FIRST STEPS IN THE 1990s Despite its undeniable importance for the complete success of transition. representing the background of subsequent decisions and actions. proposing a “specific territorial and institutional structure” for regional development policy. when the strategy of preparing Romania for accession to the European Union was elaborated as a document accompanying the application for the EU membership. Only in 1995. Accordingly. Romanian Government and European Commission. the provisions that are to be discussed in the next paragraph have remained unchanged. assisted by a team of foreign advisors. trans-border co-operation. Regional Development Policy in Romania. at present The 151/1998 Regional Development Law has been replaced by the 315/2004 Law. These proposals were subsequently considered by the Romanian Parliament and included in the Regional Development Law. 1998)3. This programme was implemented by the Department for Local Public Administration of the Romanian Government. The Commission’s 1997 Green Paper also aimed at responding to the overall requirements related to improving the framework for a decentralised regional policy. Phare Programme. on the other hand. To integrate public sector activities in order to reach higher development of the regions2. The proposed policy had three essential objectives: To prepare Romania for EU membership and to get eligible for support from the EU structural funds. Though. etc.Chapter 15 2. A Regional Policy Task Force oversaw the programme activities with representatives from key ministries and regional authorities. two special chapters of the aforementioned strategy focused on regional issues. including the proposals formulated by the Task Force to the government in order to design and implement the regional policy in Romania. These chapters were referring to the development strategy by county and Bucharest municipality and the strategy for land use. One of the main tasks of this programme was the preparation of the so-called Green Paper. local administrative autonomy on the one hand and those about European integration. adopted in 1998 (Legea 151.

associated on a voluntary basis (the total number of counties is 41. the current tasks of this institution are to (Legea 315/2004): Endorse regional development strategy and policy as well as the National Development Plan. Timi?) Region 6 North-West (Bihor. Maramures. 2002 census) in terms of population and from 32. Giurgiu.Oltenia ( Dolj. Vrancea) Region 3 South . Caras-Severin. subordinated to the Government of Romania. The eight regions “are not administrative-territorial units and do not have judicial personality” (Legea 151.647 thousand persons (North-East) Region4 (according to March 18. the central unit.Muntenia (Arges. plus Bucharest municipality. Gorj. Calarasi.850 km2 (North-East) in terms of surface. 199 . Olt. Apart from the Bucuresti-Ilfov Region the size of the other seven regions varies from 1.Chapter 15 As a result. Prahova. Each region includes up to seven counties. Dambovita. Vaslui) Region 2 South-East ( Braila.959 thousand persons (West Region) to 3. Satu Mare. Mehedinti. corresponding to the NUTS 3 level). Constanta. Present and ask the Government’s approval for the priority programmes funded by the NRDF. of a decision role. Buzau. Ilfov). Ialomita. Suceava. 4 Even though the population of the North-East Region exceeds the upper limit established for the NUTS 2 regions of the EU a recent declaration of the Delegation of the European Commission in Romania agrees that the current eight-region structure is considered compatible with the EU rules. 3. In short. Brasov. 1998). The structure of the 8 development regions is as follows: Region 1 North-East (Bacau. Sibiu) Region 8 Bucuresti-Ilfov (Bucuresti. Boto?ani. INSTITUTIONS FOR REGIONAL DEVELOPMENT AT NATIONAL LEVEL From the institutional perspective. Valcea) Region 5 West (Arad. Harghita. Teleorman) Region 4 South-West . eight development regions have been created and intended to serve as “the framework for conceiving. Neamt. 1998). Tulcea. Galati. Mures. Covasna. implementing and evaluating regional development policy as well as for collecting the statistical data corresponding to the NUTS 2 level of the EUROSTAT” (Legea 151. Iasi.034 km2 (South-West) to 36. Bistrita-Nasaud. responsible for the elaboration and implementation of the regional development policy objectives is the National Council for Regional Development (NCRD). Salaj) Region 7 Centre (Alba. Cluj. Hunedoara. Approve the criteria and priorities regarding the use of the National Regional Development Fund (NRDF).

in June 2003. Though. co-ordination. on the occasion of the Government restructuring. the National Regional Development Agency was set up in 1994 and since then it has been working without any interruption up to present. In the beginning (1998).Chapter 15 Analyse the use of the funds allocated from the NRDF to each region. the Ministry of Development and Forecasting was entirely abolished and new institutions had to take over its responsibilities in regional development field such as: the Ministry of European Integration (main responsibility for co-ordinating regional development process. 5 In Poland. the main part of the NRDA was transformed into the General Regional Development Directorate of the Ministry of Development and Forecasting (newly set up) in January 2001. etc. subsequently the National Development Plan Unit has been transferred to the Ministry of Public Finance). subordinated to the Government of Romania. It also provides the secretariat work for the NCRD (Legea 315/2004). despite the good results recorded by the NRDA. This simple presentation can serve as a good example for explaining why so many times Romania has been severely criticised by the EU for institutional instability and delays in institutional reform. 200 . The question that has been raised quite often is which will be the operational institution that will deal with regional development policy after Romania’s accession to the EU. for example. operational body of the NCRD. Ministry of Economy and Commerce (industrial parks. implementation and monitoring of the regional development strategies and policies in Romania as well as of the economic and social cohesion programmes. administration. Most of opinions converge to setting up a National Regional Development Agency5. Thus. Ministry of Public Administration and the Interior (disadvantaged areas. after the general elections organised by the end of 2000. Coming back to the point. Analyse and approves the activity reports presented by the National Committee for PHARE Programmes Co-ordination (for the economic and social cohesion component). the National Regional Development Agency (NRDA) was set up as the executive. subsequently transferred to Ministry of Public Administration and the Interior. examine the accomplishment of the regional development objectives. further transformations came up quite soon. subsequently transformed into assisted areas). at present the Ministry of European Integration. endorse and approve the projects proposed by regional development agencies in order to be financed from regional development programmes. in accordance with the good practice supported by the EU in the other transition countries. promotion.). is the institution enabled at national level with the tasks and responsibility of elaboration. including the external co-operation ones. Then. make proposals that envisage the employment of the pre-accession instruments.

plan and programmes as well as funding of administration plans. The regional councils are the decisional units at regional level. operational body at regional level is the Regional Development Agency (RDA). etc. The executive. the technical and financial monitoring and the control of the projects financed by the EU within the regional development programmes. as non-governmental. Ensuring the implementation of regional development programmes and funding of administration plans in accordance with the decisions adopted by the regional council and current legislation.Chapter 15 4. comprehensive and coherent way the objectives. has been clearly defined by the NCRD from the very beginning and concentrates on the following issues: 201 . Obtaining allocations from the National Regional Development Fund for financing the approved regional projects. of the market-based mechanisms. Ensuring the implementation. barriers against a good communication between the two levels appeared in the first years. 5. of judicial personality. At present. OBJECTIVES FOR REGIONAL NATIONAL DEVELOPMENT PLAN DEVELOPMENT – THE The concept of regional development in the new circumstances. non-profit organisation. working based on partnership principles in order to co-ordinate the elaboration and monitoring of the activities entailed by regional development policies. Its main tasks refer to: The elaboration of the regional strategy.315/2004) that specifies in a more clear. Since the RDAs have a non-governmental organisation status . a governmental one – many mismatches. at least a part of them have been removed as a result of the action of the new Law of Regional Development (No. DECENTRALISATION AND INSTITUTIONS AT REGIONAL LEVEL The idea of decentralising parts of the responsibilities for regional development policy to regional/local level led to the establishment of regional councils and regional development agencies.unlike the corresponding institution at national level. Providing the technical and financial management of the Regional Development Fund. without judicial personality. with specific responsibilities towards the NCRD and NRDA (and the institutions that followed it) on the one hand and the region on the other hand. institutional competencies and specific instruments for regional development within a larger context of higher harmonisation of the Romanian legislation with the European one.

2004. starting with 1999. Creating equal chances in terms of access to information. The NCRD has also approved the strategic principles for regional development at national level that focus on: Promoting market economy principles in all regions. Relating to this purpose. Ailenei. in D. Supporting regional competitiveness and sustainable growth. education and long-life learning. of the National Development Plan (NDP) for 20002002. for 2007-2013. Ensuring the correlation between regional and sectoral policies. preventing the arising of new problem-areas. financial capacity of each region to support its own development process. Stimulating interregional co-operation at national and international level. has the administrative capacity for an effective management of the structural funds.. to demonstrate the existence of significant structural weaknesses. At local level they envisage questions related to: decreasing economic and social interand intra-regional disparities as well as urban-rural disparities. the NDP represents the main instrument of the economic and social cohesion policy. Constantin. Editura Oscar Print.Chapter 15 Diminishing the existing regional imbalances. coordinating local initiatives with national and EU priorities.L. D. Increasing the institutional. Revitalising the disadvantaged areas. Bucuresti. G. to demonstrate that Romania. Supporting the well-balanced development of the national territory and of the locality network. justifying the need of support from the EU. D. Avantaje competitive si dezvoltare regionala Lucrarile celui de-al Treilea Simpozion al Asociatiei Romane de Stiinte Regionale. As the document employed in order to underlie Romania’s demand for community financial support in the catching-up process. etc. 202 . Promoting sustainable development principles. The framework described above has created the appropriate conditions for the elaboration. as future Member State.. at present. 2002-2004. Jula (coordnatori). The prevention of occurring new regional imbalances. 6 Frentz. “Planul National de Dezvoltare – instrument pentru realizarea coeziunii economice si sociale In Romania”. the NDP is meant to deal with two priority issues6: First. 2004-2006 and. core-periphery disparities. decisional. policy differentiation in accordance with various areas particularities. Second. Basically. the 2004-2006 NDP has establishes the following national priorities: Increasing the productive sector competitiveness and its attractiveness to foreign investors. R&D.

universities. increasing the employment rate and combating social exclusion. RDAs. The European Commission’s analysis has revealed that the 2004-2006 NDP is a document that offers a more adequate response to the EU requirements by expanding the fields of interest. THE NEW INSTITUTIONAL FRAMEWORK IN THE PERSPECTIVE OF ACCESSION TO THE EU As the programming document that builds up Romania’s access to the structural-type funds in the pre-accession period and to the structural funds after accession to the EU. This is a consultative body including representatives of ministries. a more clear perspective has been outlined with regard to the role of the ministries in charge with specific regional development issues. Thus. energy and environmental protection infrastructure. revealing the philosophy of the EU support via pre-accession instruments. research institutes. See footnote 6. offering the legal basis for developing the inter-institutional and partnership structures at national and regional level9. increasing the depth of the socio-economic analysis. legislative and policy measures terms. correct quantifying of the objectives and measures as well as of the financial efforts needed to reach the priority objectives7. G.. Supporting the balanced participation of all Romanian regions in the socialeconomic development process. The presence of regions’ representatives in this committee makes possible a larger inter-institutional coordination. the role of RDAs and other institutions involved in the NDP elaboration. 6. the NDP responds to both ‘internal necessities’ and ‘external requirements’. 8 7 203 . which has a twofold Managing Authority for Community Support Framework: http://amcsc. Though.ro. For each of these priorities the coherence and compatibility with national and EU policies have been carefully addressed in institutional. At each region’s level a Regional Committee for the Elaboration of Regional Development Plan has been also set up. Human resources development. various economic and social partners. monitoring and plan evaluation. Rural economic development and agriculture productivity increase. implementation. central public institutions.Chapter 15 Improvement and development of transportation. 9 The partnership principle is applied in all phases of the programming cycle: the plan elaboration.1323/2002) the Inter-institutional Committee for the Elaboration of the National Development Plan has been set up8. the financial programming development. The 2004-2006 NDP has also recorded an important step forward in implementing the partnership principle: as a result of a government decision (Hotararea Guvernului Romaniei nr. not only an inter-ministry one and creates the background for sectoralregional correlation10. many efforts have to keep concentrated on increasing the transparency and flexibility of the NDP elaboration so as to make these institutions work effectively. 10 Frentz. “Planul National de Dezvoltare – instrument pentru realizarea coeziunii economice si sociale In Romania”.mfinante.

The definitions of the programming documents (Community Support Framework. in D.. institutions that will deal with the implementation of the structural instruments (Management Authority. working with pre-accession instruments. aiming to co-ordinate and control the effectiveness and quality of implementing the EU assistance and its economic and social impact. The Ministry of Public Finance will also act as the Payment Authority for the European Regional Development Fund. Operational Programmes. Constructions and Tourism for the Sectoral Operational Programme on transportation and energy infrastructure. The Management Authority for the Community Support framework will be the Ministry of Public Finance. Indeed. the European Social fund and Cohesion Fund. on the other hand. Each Operational Programme will have its own management authority. as follows: the Ministry of European Integration for the Regional Operational Programme. action monitoring and impact evaluation allow the candidate countries’ authorities to get used to European Commission’s procedures and. the Ministry of Transportation. Filosofia sprijinului european pentru dezvoltare regionala”.L. Editura Oscar Print. at the same time with those of the key-actors. Monitoring Committee. 204 . From an institutional viewpoint the Government of Romania has responded to the new challenges generated by the post-accession period designating the institutions. Constantin (coordonator). the Ministry of Economy and Commerce for the Sectoral Operational Programme on Economic Competitiveness. Monitoring Committees have been established for the Community Support Framework. rural development and fishing. the Ministry of Labour. for each Operational Programme as well as for the Cohesion Fund. Forests and Rural Development for the Sectoral Operational Programme on agriculture. 2002. creating the institutional framework for measures implementation. Complement Programme) have been introduced in the Romanian legislation on this occasion. Bucuresti. the Ministry of Agriculture. Lucrurile Primului Simpozion al Asociatiei Romane de Stiinte Regionale.Chapter 15 significance11: on the one hand the financial aid is viewed as a way of reducing economic and social disparities between the candidate and the EU member countries. 11 Nica. thus. “Politica de dezvoltare regionala între necesitaea interna si cerinta externa. Social Solidarity and Family for the Sectoral Operational Programme on human resources development. to be prepared for the administration of the much higher amounted financial funds after accession to the EU. N. the Ministry of Environment and Water Management for the Sectoral Operational Programme on environment infrastructure. the units in charge with the implementation and administration of the EU financial assistance via structural instruments (Hotararea de Guvern 497/2004). SAPARD and ISPA instruments have been employed). for the 2007-2013 programming period the EU’s annual financial support for Romania (via European Regional Development Fund. Probleme actuale ale dezvoltarii regionale în Romania. European Social Fund and Cohesion Fund) is expected to be three times bigger than in the pre-accession period (when PHARE. Payment Authority). which will co-ordinate the implementation of the EU assistance.

One of the crucial questions for Romania’s regional development in the perspective of accession to the EU will be the increase of its capacity to absorb the Structural Funds and to what extent it will be reflected by the amelioration of regional disparities not only in Romanian but also in the European context. Under these circumstances the EU has had to ensure that the financial assistance provided to Romania will be effectively.59) and the ratio between the least developed Romanian region and the EU-25 average (0. regional competitiveness and employment and European territorial cooperation. transparency are entirely understood and carefully observed. monitoring. CHALLENGES FOR POST–ACCESSION PERIOD Undoubtedly. “Obligations of EU Member States and the Implementation of the Regional Development and Cohesion Policy”.27) as well as the ratio between the GDP per capita in the most developed Romanian region and the EU-25 average (0. As many studies have already pointed out interregional disparities in Romania are neither bigger nor smaller than in many other European countries12. . Creating conditions for a higher capacity of absorption of structural funds means that in the process of putting policies into practice all principles – programming. June 2005. presentation at the Seminar on Regional Development and Cohesion Policy. 205 12 Though. there are many cases of big differences between counties within the same region in terms of unemployment rate.“Initial training in European Affairs for Civil Servants from the Central Public Administration”. rationally used and all institutions involved are fully committed to offer a promising response to the three new priorities of the economic and social cohesion policy. Their success will depend on lots of factors that cannot be extensively discussed in this paper. partnership.. namely convergence. evaluation and control are applied in compliance with the EU rules and the European Commission’s proposals with regard to efficiency. Though. “Initial Training in European Affairs for Civil Servants from the Central Public Administration”. 13 Matusova. For example. But. as resulted from the debates within the Seminar on Regional Development and Cohesion Policy . which took place at the European Institute of Romania in June 2005. They refer to “the intervention of the Commission in controlling and monitoring in proportion with the degree of assurance the situation is by far much worse when the intra-regional disparities are taken into consideration.Chapter 15 7. This provides an important explanation for the very intense negotiations undertaken on Chapter 21 – “Regional Policy and Co-ordination of Structural Instruments”: a EU of 27 is expected to record an initial 5% increase in GDP and an 18% drop of the average GDP per capita13. S.87. some reflections are to be briefly presented. preparing the regional development strategy and the NDP. For example. European Institute of Romania.20) things appear to be completely different. creating the legal and institutional framework represent major steps for Romania in the European integration process but the most difficult time for most strategies and plans is when they must be turned into action. if the ratio between the average GDP per capita in Romania and the EU-25 average is considered (0. additionality. the ratio between GDP per capita in most developed Romanian region (Bucuresti – Ilfov) and that in the least developed one (North-East) is 2.

Regional Economics and Policy.. relations. consulting firms. This can create the basis for a healthy regional competition and for a rational vertical and horizontal co-operation at the same time. such as information. above all. Blackwell. but also indirect and induced ones and not only in short run but also in mid. and strategic initiatives based on public-private cooperation16. as it happens at a large scale throughout EU countries. “The Transformation of Local Production Systems: International Networking and Territorial Competitiveness”. They create links. exchanges between business firms (especially small and medium ones). training centres. social and ecological benefits being expected by the actors involved in network cooperation and the region itself such as: increasing the use of synergetic effects through cooperative planning. C. 15 Armstrong. universities.. unless the free-rider problem can be overcome” 15. on a very objective. Taylor. In a broader sense the idea of supporting co-operation and partnership structures should get a stronger support in Romania. H. This co-ordination is required since the benefits of such policies will spill over into neighbouring counties/localities and “acting independently will lead to under-funding of local development. local public administration.and even longer run) and good chances of implementation in the required period will be selected. as a guarantee of bridging the gap between words. European Institute of Romania. reducing the time of reaction to regional structural 14 Koutalakis. associations of producers. J. For Romania a very sensitive issue remains an effective and efficient way of targeting in the process of employing the financial assistance based.Chapter 15 given by the Member State and the financial stakes involved. June 2005. chambers of commerce. infrastructure. but restitution possible)”14. banks. services. 16 Cappellin. transparent ex-ante project evaluation so as to make sure that the projects of the highest multiplier effects (not only direct. as well as the need of co-ordination between local authorities with regard to their development policies. The co-operation between central and local administration for carrying out programmes of national interest or local projects exceeding the own funding capacity can be considered in this context. (1998). presentation at the Seminar on Regional Development and Cohesion Policy. If the so-called ‘transactional approach’ is applied both central and local administration institutions will be able to define the general norms (‘rules of the game’) and act for removing the obstacles to a greater and more flexible integration among various economic actors through the provision of ‘public goods’.. The advantages of creating true territorial networks. clarification of the mechanisms for financial correction in case of irregularity. a series of economic. 206 . R. should be also very seriously considered. payments conditioned by the commitment of the Member States on the reliability of the country’s management and control systems. “Initial Training in European Affairs for Civil Servants from the Central Public Administration”. “Regional Development Policies”. in European Research in Regional Science 8/1998. 2000. conditionality of the Cohesion Fund linked to the respect of convergence programmes (temporary suspension of commitments. declarations and facts. research institutes.

the policy measures meant to improve the frame conditions for overall regional development should constitute a coherent ‘package’ including economic..S. communication. As pointed out by international experience. Nijkamp. R. Innovative Behaviour in Space and Time. Inter-firm Networks and Regional Networks. 17 Sprenger.L. (eds). stressing and taking advantage of the specific feature of each local area. development of new services and products.J. infrastructure.17.. This conclusion brings about a new perspective on regional competition as well. and Kowalski.M. It is an important lesson to be learnt by Romania in underlying the regional policy in the context of the European cohesion fundamental objective. P.Chapter 15 problems. creativity and cultural identity. Fischer (eds). improving the integration of the environmental dimension into regional development by ex-ante assessment. R. NSS ADAPT. in an increasing regional competition there will be always winners and losers. Oxford. Regional Development Reconsidered. CONCLUSION In conclusion. Department of Spatial Economics. R&D Development Activities and Technology Policies in Countries in Transition: The Case of Central Europe”. Bonn. behaviour simply means what people do. cultural and socio-political elements.. as opposed to what they say they do or what they are supposed to do. 19 Constantin.S. Understanding Local Government. attitudes – even more than financial constraints – are crucial elements for the real success of regional strategy and policy19. Some theoretical and policy perspectives”. M. higher support to regional initiatives. etc. Networks and partnerships can also have an important role for raising the public awareness and supporting the involvement of local communities in promoting local development projects in accordance with their major interests. 21 Nijkamp. P. Therefore in our opinion the behavioural challenges – participation. The aim of the package must be the definition of a ‘regional profile’20. 2002. “Innovative Behaviour. mimeo. in G. Especially in the case of Romania this issue has a special relevance since the long communist period had a very bad influence on the local communities’ behaviour as well as on the whole society: the way of perceiving the democratic values and attitudes have been perverted to a great extent. (1997). Springer Verlag. so that the transition to a democratic society has to face enormous challenges in order to transform the wrong mentalities and attitudes. 207 . Atalik. C. the modern approach in analysing local government is a behavioural approach. Indeed. especially for Central and East European countries. Springer-Verlag. legal. “Northern Poland regional development initiative and project. in Bertuglia. J. indicators. “An Institutional and Cultural Perspective on Romanian Regional Policy”.. S. 20 Funck. choice of projects. in legal and institutional terms18. Lombardo. but “it is important to recognise the difference between absolute and relative winners (and losers)”21. Martin Robertson. Free University of Amsterdam. 1980. (1997). confronted with the new EU requirements. (2001). 8. D. mentalities.H. 18 Stayner.U.

M. 2000. R. in Bertuglia. Atalik. 2004. “Planul Naþional de Dezvoltare – instrument pentru realizarea coeziunii economice ºi sociale în România”.. Springer-Verlag. implementarea ºi gestionarea instrumentelor structurale. Regional Development Policy in Romania. Innovative Behaviour in Space and Time. Taylor. Romanian Government and European Commission. (1997). în D. Fischer (eds). Lombardo. – Cojanu. Constantin. 2004. 497 din aprilie 2004 privind stabilirea cadrului instituþional pentru coordonarea. Springer Verlag.. Blackwell. D. ”The Impact of the EU Enlargement on Romania’s Regional Policy: The Role of Structural Funds”. R. J. Avantaje competitive ºi dezvoltare regionalã.. Folescu. Regional Economics and Policy. P. R&D Development Activities and Technology Policies in Countries in Transition: The Case of Central Europe”. the European Institute of Romania. A. paper presented at the 17th European Advanced Studies Institute in Regional science.Chapter 15 Bibliography – Armstrong. D. C. Porto.S.paper for the 44th Congress of the European Regional Science Association. D. – Frentz. Jula (coordnatori). (1998). Specific Requirements of the EU Structural Instruments and Policy Implications for Romania. Bucharest. August 2004. – Hotãrârea Guvernului României nr. 1997. Phare Programme. in G. (coordinator).. and Kowalski.. 2002. Ailenei. “Competitiveness and Territorial Cohesion: The New Challenges for EU 25”. in European Research in Regional Science 8/1998. Split. Bucureºti. V.. – Constantin.S. R. – Green Paper. Lucrãrile celui de-al Treilea Simpozion al Asociaþiei Române de ªtiinþe Regionale..L. S. “Innovative Behaviour. (eds).L. “An Institutional and Cultural Perspective on Romanian Regional Policy”. Regional Development Reconsidered. 2004. – Constantin.. J. – Funck. Editura Oscar Print.L. Pre-Accession Impact Studies (PAIS) II Series. – Camagni. – Cappellin.H. Croatia. M. G. June 28 – July 4. 208 . “The Transformation of Local Production Systems: International Networking and Territorial Competitiveness”. 1323 din 20 noiembrie 2002 privind elaborarea În parteneriat a Planului National de Dezvoltare.. Nijkamp. D. H. – Hotãrârea Guvernului României nr.

– Matusova. European Institute of Romania. – Nijkamp. Probleme actuale ale dezvoltãrii regionale In Romania. 209 . Lucrãrile Primului Simpozion al Asociaþiei Române de ªtiinþe Regionale.. Oxford. C.L. “Northern Poland regional development initiative and project. N. “Initial Training in European Affairs for Civil Servants from the Central Public Administration”. Springer Verlag. G. Department of Spatial Economics. June 2005. în D. Inter-firm Networks and Regional Networks. Prospects and Policies. NSS ADAPT. Free University of Amsterdam. June 2005. R. în Monitorul Oficial 577/2004. – Legea 151/1998 privind dezvoltarea regionalã În România. Regional Convergence in the European Union: Facts. “Initial Training in European Affairs for Civil Servants from the Central Public Administration”. S. – Legea 315/2004 privind dezvoltarea regionalã În România. “Obligations of EU Member States and the Implementation of the Regional Development and Cohesion Policy”. 1980. Some theoretical and policy perspectives”. Martin Robertson. Constantin (coordonator). mimeo. – Tondl. P. Bonn.. “Politica de dezvoltare regionalã între necesitaea interna ºi cerinþa externã. European Institute of Romania. – Stayner. – Sprenger. presentation at the Seminar on Regional Development and Cohesion Policy. J. (1997). “Will the New EU Regional Policy Meet the Challenges of Enlargement?”.Chapter 15 – Koutalakis. Editura Oscar Print.U. în Monitorul Oficial 204/2001.R. Bucuresti. 2002. – Nica. Understanding Local Government. Filosofia sprijinului european pentru dezvoltare regionalã”. “Regional Development Policies”. presentation at the Seminar on Regional Development and Cohesion Policy.. in J. Parellada (Eds..).. (2001). Cuadrado-Roura and M. 2002.

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Chapter SECTION 5 EU ENVIRONMENTAL POLICY 211 .

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And last but not least. the EU as a unique political identity. The EU represents the most developed system of international environmental policymaking. but has gradually moved into the centre of what largely defines our society: its system of production and consumption and the externalities it creates. Moreover. leadership in global environmental dynamics has rarely come from the other side of the Atlantic. Indeed. Examples include the countries in Central. Due to its size and the importance and history of a number of Member States in international environmental politics this is not surprising.Chapter 16 CHAPTER 16 EU ENVIRONMENTAL POLICY Hans Bruyninckx* 1. given the position of the United States since the 1980’s. INTRODUCTION The importance of understanding EU environmental politics and policies reaches much beyond the narrow adoption of EU directives and their impact on national policies. In that sense it goes much beyond any other environmental regime that is described in the traditional literature on international environmental policy making. it is the only comprehensive institutional entity with legally binding. To the contrary. Another reason to pay close attention to environmental policy evolutions of the EU is that it is becoming an ‘exporter’ of policy views and instruments. However. it is increasingly obvious that there are massive environmental consequences associated with what we produce. how we produce it and what happens during and after consumption. with all the recent criticism that is has befallen. Moreover. It has to be clear that the weight attributed to environmental policy nowadays is closely intertwined with the place of countries and the EU in global processes of production and consumption. we defend the point of view that environmental policy is not taking place in the margins of modern society. Indeed. the EU is gradually growing into a role of global leadership on environmental issues. is still a source of inspiration for other countries that wish to integrate.and South America and in Asia. enforceable environmental norms. Besides a number of social and economic externalities. self chosen isolationism and the adamant defence of economic interests *Associate Professor ofInternational Environmental Policy and Sustainable Development at the Catholic University of Leuven (Belgium) 213 . several other countries and regions look for inspiration at the EU.

the political leaders of the EU realised that new initiatives were necessary to capture this new theme in the regular functioning of the EU. the European institutions paid relatively little attention to environmental issues. HISTORY: FROM A FOOTNOME TO FULL COMPETENCY During the period from 1957 till 1972. It is interesting in hindsight that at that moment EU and national legislation still developed rather independently. Environmental issues were not mentioned in the EC Treaty and also politically unimportant during the first two decades. the impact on general EU policy making and the need to further develop the policy domain. the Directorate General for the environment (DG XI) was established. the EU officially recognised the need to develop an environmental policy. the ‘precautionary principle’. Some countries were clearly taking the lead and pushing the EU (Netherlands. First. These included – in a sort of embryonic shape . 2. Another important shift was the gradually increasing role of interest groups in the formation of EU environmental policy. This changes quite rapidly during the 1970’s. There are several reasons for this ‘neglect’.Chapter 16 over environmental protection has probably pushed the EU in this role of global leadership more than it wanted to at some times. As the importance of the theme increased. As in most OECD countries the 70s and early 80s are the period during which the basic environmental legislation on the large compartments of the environment is established (water. so did the budget. The Single European Act (1987) recognised the environment as a legal competency of the EU by adding Title VII to the EC Treaty. species protection. air.). Belgium). namely “continued and balanced growth”. Another key decision came from the Court of Justice. the goals of the new institutions were clearly stated in article 2 of the EC Treaty. As public opinion started to pay more attention to environmental issues. The European integration process was aiming at economic growth and political stability. Denmark and Germany) others lagging behind and stepping on the brake (Italy. The period between 1987 and 1992 further established a full fleshed and mature EU environmental policy. etc. The next year became pivotal in this process. It is 214 .the ‘polluter pays principle’. in 1981. A new Environment and Consumer Protection Commission was established. of institutionalisation of environmental issues in the broader functioning of the EU. as well as a Committee on Environment in the European Parliament. But probably the most important step was the development and implementation of the first Environmental Action Programme (1973-1976) in which some of the foundations of the EU approach to environmental policy were established. France. and environmental policy integration. This DG would play a central role in the further development of a comprehensive system of environmental legislation. In a 1985 decision (240/35) it clearly stated that environmental protection was one of the “essential objectives of the EU”. and the United Nations organised its Stockholm conference on the human environment (1972). During the Paris Summit in 1972. hence founding the UN Environmental Programme. Later.

This has led to adaptation of institutions. 2001. in addition. 215 . The Maastricht Treaty (1992) and the Amsterdam Treaty (1997) further consolidated environmental priorities by formulating the main mission of the EU as a “harmonious. and strong integration of environmental considerations in all other policies of the EU.… the sharing of intelligence in hallways and cafeterias …”1. and. (while slipping on that ranking in the last years as we might mention). It can be said that EU directives were in fact the main driving force of national environmental policy in most EU countries. exchanges of favours. 3rd and 4th Environmental Action Programmes the comprehensive nature of EU environmental policy was further established. it seems important to stress the fact that environmental policy making at the level of the EU (and at the national level as well for that matter) is much more dynamic than what this formal approach suggests. The EU has assumed a form of global leadership on issues such as biodiversity. unspoken understandings. This should lead to a high level of protection. 3. that the EU has become a major player in environmental policies. As a conclusion of this brief historic overview. prevention and precaution. The difference in approach between the EU and the USA on these issues has also become a part of an interesting diplomatic ‘game’ involving shifting coalitions of countries on different topics. environment has become one of the important policy domains of the EU. Environmental Policy in the European Union. there was hardly an element of environmental or nature protection policy that was not covered to some extent by EU directives. By 1992. but much more important to appreciate the cumulative role of informal meetings. This last point also underscores the fact that EU environmental polices have become part of the globalisation of environmental issues and norms. forest protection and last but not least global warming. rules and procedures. balanced and sustainable development” (Art 2 Preamble). In line with the international trends (especially the UN dynamic of the UNCED meeting in Rio 1992 and the WSSD meeting in Johannesburg in 2002) the last two Action Programmes have put the emphasis on sustainable development and not just on narrow environmental goals. However. we have to recognise that over a period of about 30 years. During the 2nd. source based policies for which polluters must pay. This is understandable as it is already rather complicated to grasp the complexity of how these institutions function. budgets and even policy priorities in the EU. at the beginning of this part. INSTITUTIONS AND ACTORS Most descriptions and discussions on the institutions of EU environmental politics emphasise the formal institutions. 1John McCormick. Hampshire.Chapter 16 important to notice that these changes took place with large public support as the environmental theme consistently scored very high on the list of important topics for public policy according to the Eurobarometer. Palgrave Publishing. desertification. As Mc Cormick puts it: “…it is important to understand the formal policy system. Basingstoke.

The role of DG XI of the European Commission When discussing the role of DG XI several issues stand out. located in Copenhagen. we should also discuss the role of DG XI (DG Environment) of the European Commission and the European Environmental Agency. the Council and the Court of Justice in environmental policy-making is quite similar to their role in other policy areas. 3.3. the Economic and Social Committee and the European Investment Bank. this EU body. This shift can be associated to a certain extent with the consecutive leadership of the two commissioners for Environment. Conceived during the late eighties. it was very much a top down administration. focussing on the ‘production’ of basic environmental legislation.during the following period. 3. and that large public investments should consider environmental aspects. The combination of political opportunity for the theme and strong leadership largely explains the enormous flight forward of the EU’s environmental policy. that although environmental issues are increasingly framed as global. competent and progressive women brought with them a more Scandinavian environmental policy attitude and an openness that was hitherto unknown. Their importance represents the belief that environmental policy has to be embedded in socio-economic debates.Chapter 16 In terms of formal institutions we will therefore only discuss those institutions that are typical for the environment. they worked together especially during the last several years with a number of top bureaucrats in DG XI who had a similar understanding of purpose and direction. as the role of the ‘traditional institutions’. adopting. on networking. If we concentrate on those institutions typical for “environmental policy”. The wealth of comparative information on all aspects of policy making is unparalleled. has been dedicated to provide sound. namely Bjerregaard (Denmark) and Walstrom (Sweden). implementing and evaluating environmental policy. These two committed. The role of the European Environmental Agency Underestimated by outsiders has been the impact of the European Environmental Agency. there are many regional differences and opportunities. More emphasis on participation. It has become the main information source for those involved in developing. independent information on the EU environment. and finally established in 1994. The role of other EU institutions Other institutions that have lesser-known competencies in environmental matters include the Committee of the Regions. One is the rather strong shift in policy style it has undergone. like the Commission. and subsidiarity was evident.2. 3. as is the weight of its periodic reporting on different aspects of the policy. Until 1991.1. In addition. Things changed rather strongly – when considering the resilience of bureaucracies for strong change . 216 .

national lobbying concerning implementation modalities. The EU has in that sense triggered a major lobbying movement in Europe that is now much more like the system that exists in Washington DC in the USA. one should not underestimate the sort of two-level game that is played on environmental matters. of systems of voluntary agreements between companies or sectors and the state. from an exclusive competency of the state and its institutions to a more dynamic process of interaction between state. the reasoning in terms of efficiency and effectiveness and the fact that globalisation is changing the position of the state and of other actors are factors that contribute to this shift according to the literature. Birdlife International and the European Environmental Bureau. These two financing mechanisms have indeed played a significant role in funding infrastructures for the environment and in integrating environmental concerns in other publicly financed projects.and almost by definition . They represent the nine most prevalent environmental movements. during the implementation phase. However. However.Chapter 16 Some of these aspects come together in for example European Structural Funds or in Cohesion Funds. They have no formal standing in the EU institutions.means that the relationship between the EU institutions and national states on the one hand and actors representing the markets (producers in first instance) and civil society (pressure groups. Later. Environment Policy and civil society In the more theoretical literature on environmental policy making. It is therefore important to point out that the EU indeed has multiple formal and informal relations with both types of actors. the term governance is supplanting government or traditional policy making. We observe the reflection of this shift in development of more market based policy instruments. This happens alongside the European level attempts to influence outcomes. The inability of the state to respond to all challenges.4. Greenpeace. citizens-consumers) are becoming more central to effective environmental policy making. The European Economic and Social Committee is the formal place where employers and employee organisations meet to discuss issues related (also) to the environment. 3. Brussels has several thousand professionals representing major labour unions and employers’ organisations and industrial branches. This includes WWF. At the level of civil society. NGOs. Friends of the Earth. Lobbying takes place at the national level to influence the impact that can be exerted by the national government on EU policymaking process. distributional issues and use of instruments remains important. market and civil society. of labelling schemes that are mainly conceived and negotiated between NGOs and producers. This different orientation also . the main activity comes from the so-called Green 9. the nexus of interaction is much more located in numerous meetings between representatives of the EU directorates and representatives from various organisations. yet they are informally extremely important in the process of policy 217 . Governance is then referring to the shift in the setting of societal rules and norms and their implementation. organised at the European level.

This is not entirely new since the EU has for a long time been the main proponent of environmental policy integration. it also means that in balancing economic. Through multiple contacts with the Commission (which also subsidises a number of them quite substantially) the voice of civil society representing the interest of the environment is part of the process. What they expect from the Commission is that the principles of participation are increasingly an integral part of policies. Indeed. one of the strong aims of the Green 9 is to improve the participatory nature of EU environmental policy making and implementation. environmental policy making has put itself squarely in the middle of broader policy objectives. Yet. it is by far the largest federation or umbrella organisation of environmental movements in Europe. citizen involvement can take place at different levels. integrated policy making. The explicit role of the EEB is to “protect and improve the environment of Europe and to enable the citizens of Europe to play their role in achieving this goal”. Given the subsidiarity principle. The call for citizen participation is worth highlighting. development. Also. this goes a long way in the direction of fundamental principles of sustainable development. A more formal engagement on sustainability has been taken during the discussions that have produced the so-called Lisbon strategy and Gothenburg strategy.Chapter 16 formation. Whereas the agreement reached during the Lisbon Summit. stakeholder participation and other principles have become an integral part of environmental policy making. or on which the policy should be based (as in ‘sustainable energy’ or ‘sustainable transport’). It is fair to say that more then in any other policy domain this has been the case for environmental policymaking. social and environmental objectives. especially given the debate about the democratic deficit of the EU. The most interesting organisation from the point of view of broad policy view and impact is probably the European Environmental Bureau. outlined a strategy to make the EU the 218 . With reference to the Arhus Convention. In essence this means that long term thinking. 4. representing more than 15 million members. scientific research and environment are currently referring to sustainable development as either the overall objective to which the specific policy should contribute. This entails the incorporation of environmental objectives into all stages of policy making of non-environmental policy sectors. almost all important policy documents in areas as diverse as energy. FROM ENVIRONMENTAL POLITICS TO SUSTAINABLE DEVELOPMENT: INTEGRATING LISBON AND GOTHENBURG Since the United Nations Conference on Environment and Development in Rio de Janeiro in 1992. Indeed. which explicitly outlines the rights of citizens to participation and information. In fact. with specific recognition of this goal as a guiding principle for the planning and execution of policy. transport. environmental movements have emphasised this issue strongly during the last years. With more than 140 member organisations from 30 countries. sustainable development has been one of the guiding principles since the Maastricht Treaty and as such part of most EU policymaking. sustainable development has become the guiding principle of several large policy domains.

will be the actual results of policies in the direction of more sustainable development. etc. sustainable entrepreneurship. living up to the Kyoto agreements regarding global warming and taking the lead in the negotiations that have to result in longer-term post-Kyoto targets. and of transport policies in line with sustainable development goals. Terms such as corporate social responsibility. As the main actors in production processes. and also in pollution. The terminology and the know-how of how to do this largely exist. preferences and prices and their impact on the global market for agricultural products. This means that the creation of wealth.Chapter 16 most competitive economy worldwide by 2010 (a date that has been deemed unrealistic by now). It is clear that this will probably be the most daunting challenge for the next decades as the current energy system has too many negative externalities. The EU has assumed global leadership in the debates that accompany this challenge. More important than the discourse. in the absence of any USA commitment in these matters. a serious commitment from businesses in light of sustainable development objectives is mandatory if the policy objectives are to stand any chance at success. It is obvious that there is also a strong North-South dimension to this debate.g. First. without putting untenable stress on the global ecosystem. while new technologies are still largely in the stage of development. Short. However. in principle the EU environmental policy is today part of a much more fundamental and larger objective. it is primordial that companies are involved and take the lead in matters of sustainability. as farmers in the developing countries have the hardest time to enter the EU market with their products. which we have as EU on the state of the global environment. the creation of employment. or in other words our economic performance.and more radical shifts in technology (e. at this moment. Linked to this goal is the development and increasing use of renewable energy sources. triple bottom line management. For the CAP this also includes the very difficult debate about quota. Third. namely a gradual decoupling of the economy. under the Swedish presidency an environmental dimension was added to this strategy. structural funds. are well known in the business community and receive much verbal attention from the official representatives. Improving efficiency in the use of natural resources – energy and others . Finally. At the level of the EU both objectives have been combined in a sustainable development strategy. our energy regime) form the backbone of this strategy. 219 . It is also an essential element of global solidarity as it frees up space for development in the South. should be decoupled from the impact on the environment. Crucial parts of this policy from the point of view of the environment are the following. yet have not resulted in much fundamental change. in technology development and innovation. Only in that way can we decrease the negative impact. few indicators point in the direction of what should be the bottom line of this strategy. however. a serious and critical analysis of the Common Agricultural Policy (CAP). namely creating and contributing to a more sustainable global society. Equally important is more democratic control and participation on these policies.

The EU institutions can hardly be blamed for this. is the lack of good knowledge.Chapter 16 5. has produced several questions: One. This leads to suboptimal results from an environmental perspective. numerous policies fail from the start. our total material input and our transportation patterns are not really changing. A classic example is the improvement of air quality due to environmental policies. etc. why have commitments often failed to be implemented in more effective ways? And three. Some countries are better than others in this respect. This factual input. environmental policies have to be evaluated in the context of changing patterns of production and consumption. because they are poorly conceived. Also important. it is interesting to look at some of the arguments that drive the debate on these questions. The EU has always been a strong proponent of integrated environmental policy making and long term planning. which is annihilated because of the enormous increase in transportation – both private cars and trucks – which results in an overall worse air quality in several respects. but therefore not less valid. In other words. They have to implement EU directives. the stickbehind-the-door of EU implementation regime is the obligatory nature of its directives. if not impossible to de-couple. According to careful analysis and studies. Other reasons for the implementation gap have to be found in the policy process itself. Yet. if the current system doesn’t function well. don’t take pragmatic implementation issues into account. the difference between the objectives of the Environmental Action Programmes and their results has often been very significant. etc that would contribute to more adapted and hence adoptable policies. is that societal evolutions have often outrun environmental policies. good practices. A very general remark. Indeed. it will be very difficult. it is fair to claim that the main problems are situated at the level of the Member States. THE IMPLEMENTATION ISSUE One of the issues that have received much attention in the evaluation of the EU’s environmental policies is the so-called implementation gap. tools. 220 . data. yet the problem is generally present. Of equal importance is the piecemeal. despite the phenomenal work performed by the European Environmental Agency. As long as our energy use. why has the system of European governance fallen short in dealing with environmental problems? Two. but the actual application of these principles in its own policies has proven a serious challenge. yet often fail to do so in terms of time and effectiveness. however. Even more fundamental is that the most environmentally progressive proposals often fail or are diluted during the bargaining process. Without exaggerating. They are vague. as it is the clear and univocal responsibility of the Member States. ad hoc and isolated fashion in which policies are often developed. what can be done about it? Although it is obvious that we cannot deal with all these issues in this short chapter. are not well discussed with stakeholders.

6. a cynical believe in the old ideology of unlimited and uninhibited economic growth. in how citizens and scientists think about environmental problems. it is obvious that the environment as a policy theme has been through fundamental changes during the last decades. before it resorts to a full-fledged case in front of the European Court of Justice. the air quality for some substances (acid rain for example). From a non-issue at the conception of the European project of integration and cooperation. or at worst. the European Environmental Agency gives a mixed picture at best. the EU environmental policy has developed from an addition to the national policy to the main source or at least point of reference of national policies. In other words. We will briefly revise and rephrase them in this concluding part. Citizens and organisations have the unique right (in international environmental issues) to take their state or other actors to court at the EU level. Examples include the quality of surface water. This has been especially new and challenging for those countries. a number of problems have deteriorated and remain huge challenges. global warming. the deterioration of fish stock and air pollution problems linked by ever increasing traffic. especially during the 1970s and 80s. even though the EU has devoted much policy attention to them.Chapter 16 or in other words the compliance mechanism. etc. it has become one of the most visible and strongest policy areas. but is our conviction that it goes beyond that. On the other hand. It is based on at best an incomplete understanding of the issues. and also citizens and organisations have the right to use the legal tools of the EU to demand implementation when it is failing. As a strong promoter of policy principles such as the polluter pays principle and precautionary principle its impact has been enormous on other actors. In terms of actual environmental outcomes of the EU policies. The EU has also become an important independent actor in those changes. First. for 221 . or that it is time to relax a little bit on environmental policies. which have been described as laggards in environmental policy making. A number of problems have improved. the claim by some that the worst environmental issues have been solved. the penalty procedure and the preliminary ruling. Second. It takes an average of over six years before the Commission receives a complaint and an actual judgement by the Court. The Commission can do this through the infringement procedure. the gradual designation of wilderness and nature protection areas. This has been partly due to broader changes. These include the decline of biodiversity. CONCLUSION The previous chapters have demonstrated several key elements of the EU environmental policy. is a false claim. It also partially undermines the credibility of the implementation system and of the policy-making capacity of the EU itself. given the growing global economic competition. Indeed. possible further environmental degradation and damage to ecosystems and human health. One of the main problems with this otherwise extremely advanced system is that it functions very slowly. This time lag signifies a loss in implementation timing. The Commission.

the Commission. The design of good and effective directives has proven to be a serious challenge. a term often linked to the Lisbon strategy on the competitive position of the EU in the global economy. the environment has faired well. Innovation. yet important role in this game is played by lobbyists for the industrial branch organisations and representatives of the European environmental movement. and other parts of the formal institutional structures. The least formally visible. the current Greek Commissioner will bring remains to be seen. In fact. Employers’ organisations. serious implementation problems remain. What Mr Dimas. which have been lacklustre in implementation. Of equal importance is an understanding of the social forces that co-shape the policy by influencing national governments. We have also pointed at the importance of strong individuals at the top of the institutions. Spain and Belgium. it is our strong conviction that the two are intertwined. They represent the actors described in more recent approaches to environmental governance. That is in the end sustainable development. the European Parliament. Italy. if one really wants to understand the formation and functioning of EU environmental policy making it is not enough to know the formal institutions and their functioning rules and norms. and will most likely not be solved by the standard policy approaches. global warming and energy regime are not solved. will be just as much needed to solve environmental problems. EU regulation has often meant a serious step beyond what they would have done on their own initiative. The blame for the latter is clearly situated with national governments. Strong economic performance will depend on our ability to find solutions for the negative externalities associated with our current system of production and consumption. 222 . Third. The same is true for the actual implementation.Chapter 16 countries such as Portugal. even with strong and efficient implementation we come to the conclusion that the state of the EU environment is still problematic. Yet. Fourth. This last remark is also at the same time an open door for future EU environmental policy. although a very large number of directives has been made and implemented. Some of the most fundamental issues regarding biodiversity. labour unions and environmental movements play the largest role here. With two strong Scandinavian Commissioners. Greece.

2001.eu.htm – European Parliament Environment Committee: http://www.eea.htm – European Consultative Forum on the Environment and Sustainable Development: http://europa.int/comm/environment/forum/home. Palgrave Publishing. Relevant official documents and information can be found at the following websites: – European Environment Agency: http://www. Basingstoke.int – European Commission: http://europa.eu.htm – Institute for European Environmental Policy: http://www.Chapter 16 Bibliography: – John McCormick.europarl.int/comm/index_en.eu.ieep.eu.int/comm/dgs/environment/index_en.eu. Hampshire.eu.htm Directorates-general at the European Commission: – Environment: http://europa.org. Environmental Policy in the European Union.html – Fisheries: http://europa.eu.int/committees/envi_home.uk 223 .int/comm/dgs/fisheries/index_en.int/comm/dgs/energy_transport/index_en.htm – Energy and Transport: http://europa.

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CHAPTER 17
ADAPTING THE ROMANIAN SYSTEM FOR THE PROTECTION OF THE ENVIRONMENT TO EU STANDARDS – OUTCOMES AND FUTURE CHALLENGES
Cristina Maria Arion*

1. INTRODUCTION
The Fifth EU enlargement is seen in many respects as being unlike the previous ones. Environmental issues have added yet another dimension of complexity to the process, as the Center and Eastern Europe Countries (CEEC) presented the EU with an environmental situation rich in contrasts: on the one hand, a unique reservoir of wilderness areas in regions where the ecosystems were preserved; on the other, a series of environmental hot spots. The environmental situation in Romania is far from being ideal. A recent evaluation of this situation1 offers a mixed picture of the problems Romania is currently facing. The issue of environmental protection in Romania is a sensitive one and the issue of local pollution caused by heavy industries, transports and agriculture seems to weight heavily in the balance. Recent reports present an alarming picture of the state of the environment in Romania: the levels of air pollution are quite high, intensive utilisation of pesticides in agriculture has polluted soils and water, and the latter has also been affected by wastewater. Urban waste dumping is another area of concern, as the Romanian government acknowledges that most urban wastes are stocked on sites that do not benefit from any system for the protection of the environment2. As for industrial wastes, although subjected to relatively strict regulations, the application of these rules is largely insufficient and does not provide adequate protection. Last but not least, noise pollution affects the quality of life in urban areas.

Following a brief account of the evolution of environmental issues in the EU
* Lecturer 1

in European and International Law, University Paris-Sud, Jean Monnet Faculty, Paris, France. Ministerul apelor si al protectiei mediului, Romania curata. Program concret pentru sanatatea mediului, Bucuresti, aprilie 2002 (www.mappm.ro). 2 According to sources in the Romanian Ministry of Environment and Waters, only half of the Romanian population has access to an organised garbage collecting system, while industrial and mining waste often lies in improvised dumps. See the aforementioned program Romania curata and Razvan Amariei, “Romania Confronts Environmental Problems”, South-East Times, March 1st, 2005. 225

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enlargement process, the main phases of the adjustment of the Romanian system of environmental protection to EU standards will be summarised. Our examination of the issue will conclude with a few remarks on the challenges Romania is still facing in the area of environmental protection.

2. ENVIRONMENTAL PROTECTION IN THE EU ENLARGEMENT PROCESS: AN ISSUE OF INCREASING IMPORTANCE 2.1. The Environment: Just Another Area of Legislative Approximation?
The EU approach to environmental protection in the framework of the eastward enlargement seems to have followed the same tortuous path as the relations between the CEEC and the EU in general. After an initial phase of hesitation as to the future form of the relations between the CEEC and the EU, the conclusions of the European Council of Copenhagen3 have set accession to the EU as the final goal of the mainly economic cooperation established at the beginning of the 1990s. It is only later on, in preparation for the Essen summit4, that the EU integrated the dispersed efforts of assisting the CEEC into a coherent framework: the pre-accession strategy, based upon the EC association agreements (Europe Agreements), structured dialogue with the European institutions and financial aid through the PHARE programme. In a similar way, the issue of environmental protection was initially treated in relation to the internal market requirements and without due reflection on the concrete impact of the assimilation of the environmental norms in the candidate countries or on the strategy to be followed in this respect. Environmental protection was nevertheless considered as a priority. In the Copenhagen summit conclusions, the European Council “underlined the importance of the approximation of laws in the associated countries to those applicable in the Community, in the first instance with regard to distortion of competition and, in addition, in the perspective of accession, to the protection of workers, the environment and consumers”5. In the Europe Agreements, as illustrated by the agreement concluded with Romania6, a specific provision deals with the environment. Article 81.1 of the said agreement states the obligation of the Parties to “develop and strengthen their cooperation on
E.C., no. 6/1993. broad lines of the pre-accession strategy can be found in the preparatory paper of the EC Commission, The Europe Agreements and Beyond : A Strategy to prepare the Countries of Central and Eastern Europe for Accession, COM (94) 320 final, 13 July 1994. 5 Bull. E. C., no. 6/ 1993, I. 13. 6 Official Journal L 357 , 31 December 1994, p. 2 - 189.
4 The 3 Bull.

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environment and human health, which they have judged to be a priority”. This provision mentions certain areas of environmental protection (para 2) and the forms of cooperation to be instituted according to the agreement (para 3), such as the exchange of information and experts, transfer of clean technologies, training programs, cooperation at the regional level, and joint research activities. The environment is also singled out as one of the areas where the approximation of laws should be pursued according to article 70 of this Europe agreement. Furthermore, article 72.2 mentions sustainable development as one of the guiding principles of the policies to be adopted by Romania in order to promote the economic and social development of the country and echoes the “integration principle” present in the EC treaty in its article 174. More precisely, Article 72.2 states that “these policies should ensure that environmental considerations are also fully incorporated from the outset and that they are linked to the requirements of harmonious social development”. In addition to these specific provisions, environmental considerations are integrated in sensitive areas covered by the agreement, such as water management (article 82), transports (article 83), energy (article 79) or nuclear safety (article 80). Despite all this, at the beginning of the enlargement process, there was no particular strategy concerning environmental issues. Instead, these were mainly dealt with in the broader framework of legislative approximation. One of the first steps taken in preparing the candidate countries for accession was to identify the parts of EC legislation that had to be rapidly translated into national law. It should come as no surprise that internal market rules were identified as parts of the acquis that were of utmost importance in the Commission’s White Paper on the Preparation of the associated countries of Central and Eastern Europe for integration into the internal market of the Union7. These parts of EC legislation indirectly touched upon environmental issues as they covered mainly product standards, but this represented only roughly 50% of the environmental acquis8. It is interesting to note that in Agenda 20009 the Commission observed that none of the candidate countries would be able to adopt and implement the whole of the environmental acquis at the time of its accession to the EU. The position adopted by the Commission can be regarded as surprising as it stands at odds with the obligation of integral transposition of the European acquis, which was always presented as a sine qua non condition for accession. It amounts thus to a softening of this obligation10 at a time
7 COM (95) 163 final, 3 mai 1995. 8 Communication from the Commission

on Accession Strategies for the Environment: Meeting the Challenge of Enlargement with the Candidate Countries of Central and Eastern Europe, COM (1998) 294, 20 May 1998, p. 7. 9 COM (97) 2000, p. 67. 10Alexander Carius, Ingmar von Homeyer, Stefani Bär, “The Eastern Enlargement of the European Union and Environmental Policy: Challenges, Expectations, Speed and Flexibility” in Katharina Holzinger and Peter Knoepfel (eds.), Environmental Policy in a European Union of Variable Geometry? The Challenge of the Next Enlargement, Basel, Helbig&Lichtenhahn, 1999. 227

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when the negotiations with the candidates from the “Luxembourg group”11 had not even started. It could, nevertheless, be seen as a realistic position that can be justified by the extent of the challenges posed for the candidate countries by the requirements of approximation and implementation of the environmental acquis.

2.2. A More Coherent Framework for Dealing with Environmental Issues in the Accession Process
The Commission document Agenda 2000 established the basis for a more structured approach of the process of enlargement. This document introduced the enforced preaccession strategy based upon a new key element in the preparation of the candidate countries, viz. the partnerships for accession: bilateral instruments signed individually by each of the candidates and the EC Commission. A National Program for the Adoption of the Acquis (NPAA) accompanies the partnerships for accession and must be implemented by every candidate country. The EC Commission suggested in this context that the transposition of the framework directives, as well as the development of detailed harmonisation and implementation strategies for the sector specific directives concerning the environment, should be the short-term priorities of the NPAAs. The year 1997 is important for the treatment of the issue of environmental protection in the accession process, inasmuch as the first signs of a certain ‘differentiation’ can be identified as this area comes to be progressively promoted by the EC institutions. A Guide To The Approximation of European Union Environmental Legislation12 was adopted in order to highlight particular aspects of EC legislation on environmental matters. This is a first step of an approach designed to render more coherent the treatment of environmental protection in the framework of the enlargement to the CEEC. It was prompted by the evident lack of preparation of the candidate countries. The first studies on the preparedness of the CEEC countries conducted in 1996 revealed that extent of the work that remained to be done13. They showed14, for instance, that in Romania only 38% of the framework directives have been introduced into national law. Compared to other candidate countries such as
11 This is a commonly used formula designating Hungary, Poland, the Czech Republic, Estonia and Slovenia plus Cyprus and Malta: the countries that started accession negotiations in March 1998 following the Commission’s recommendations at the Luxembourg summit in July 1997. 12 SEC (97) 1608. 13 Regional Environmental Center, Approximation of European Union Legislation: Case Studies of Bulgaria, Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Romania, Slovak Republic and Slovenia, Szentendre: Regional Environmental Center, 1996, p. 149. 14 Ibid, p. 8.

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Hungary, Poland and Slovakia, this represented a relatively slow pace of legislative approximation. Drawing lessons from the past enlargements, in which the issue of environment has not played a very important role15, the Commission in 1998 finally adopted a specific strategy16 that stressed the importance of this matter in the pre-accession process and set the priorities of legislative approximation. In this document, the Commission identified the challenges facing the candidate countries in adapting their systems of environmental protection to EU standards. The first - and most obvious - challenge is, of course, the legislative one17. The second challenge is linked more generally to the administrative capacity of the candidate countries to ensure effective implementation of the environmental acquis. It should be recalled in this respect that in the framework of the pre-accession strategy, the environment benefits from the same support mechanisms as other areas of EC activity. Technical support is also available through the TAIEX bureau and the twinning projects, which latter expressly designate environmental protection as a priority. In 1999, an additional form of support was established: the so-called ‘PEPA’ program for “Priority Environmental Program for Accession”. The main role of PEPA is to support the development of implementation plans for directives requiring particularly heavy investment and to ensure that countries have a clear set of priorities concerning the projects to be implemented in the following years18. The third challenge identified by the Commission is the financial one. Since January 1st 1999, a special form of financial support has been available in the framework of the enforced pre-accession strategy through the ISPA program19. Half of the resources of this fund are attributed to financing investment projects in the area of environmental protection. The financing is dedicated in priority to areas (such as air quality control, water and waste management) in which the CEEC countries were facing serious problems according to the evaluations conducted by the Commission and which require particularly heavy investment.
15 As was demonstrated in the case of Spanish accession, the mere engagement of a country to adopt and implement the environmental acquis is not in itself sufficient to ensure effective compliance with European legislation after accession. Cf. Atle Christer Christiansen, Kristian Tangen, “The Shadow of the Past: Environmental Issues and Institutional Learning in EU Enlargement Processes”, The Fridt Jof Nansen Institute, FNI Report, no. 1/2001, 45 p. On the other hand, environmental issues were central to the enlargement to the EFTA countries, but in a quite different manner, since the environmental standards in these countries were generally higher than those of the EU. Furthermore, the participation of these countries in the Economic European Area had equally prepared them to implement most of the rules concerning the environment. See in this respect, Danish Ministry of Environment, The Environmental Challenge of EU Enlargement in Central and Eastern Europe, Thematic Report, December 2001. 16 Communication from the Commission on Accession Strategies for the Environment: Meeting the Challenge of Enlargement with the Candidate Countries of Central and Eastern Europe, COM (1998) 294, 20 May 1998. 17 Ibid., p 2. 18 Communication from the Commission, The Challenge of Environmental Financing in the Candidate Countries, COM(2001) 304 final, 8 June 2001. 19 The funds provided via the ISPA program are distributed according to the principle of co-financing and only account for 85% of the total budget of the projects in question. Cf. “New EU Instrument To Attract Fresh Funds For Environmental Investment” Enlarging the Environment, Newsletter from the European Commission on Environmental Approximation no 15/ August 1999.

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Furthermore, the LIFE program20, originally directed toward the financing of the environmental projects of EU Member States, was extended also to the CEEC countries. It should also be noted that the participation in community programs, which was presented in Agenda 2000 as an important element of the pre-accession strategy, became effective for the first time in the area of environmental protection, as on the basis of bilateral agreements with the EC the candidate countries participated in the European Environmental Agency21. Besides the general challenges, the Commission identified a number of sector specific challenges in its Communication. It was thus underscored that most of the CEEC will encounter difficulties in meeting the EC standards of air quality and, furthermore, that this was largely due to excessive emissions from stationary sources such as power plants and local district heating installations22. Another area of concern was that of waste management. The Commission identified the directives dealing with the incineration and management of municipal and hazardous wastes as representing the greatest challenge for the CEEC23. As far as water management is concerned, the Communication underlined the necessity of pursuing investments for improving the quality of drinking water and the management of wastewater, with a special emphasis on the nitrates utilisation standards24. Concerning industrial pollution control and risk management, the Commission insisted on the transposition and implementation of the Seveso directive25, which in its opinion required more attention, as this would considerably reduce the risks of major accidents from industrial installations throughout the region26. The overall evaluation of these specific points showed that, as a rule, much remained to be done to integrate the acquis. The Commission emphasised, however, that the approximation of the acquis is not a priority in itself, but must be adapted to the particular necessities of each candidate country27.

Council Regulation (EEC) no 1973/92 of 21 May 1992 establishing a financial instrument for the environment (LIFE), Official Journal L 206, 22 July1992, p.1-6 and subsequent modifications. 21 Concerning Romania’s participation see Council Decision 2001/584/EC of 18 June 2001 on the conclusion of the Agreement between the European Community and Romania concerning the participation of Romania in the European Environment Agency and the European environment information and observation network, Official Journal L 213, 7 August 2001. 22 Communication from the Commission on Accession Strategies for the Environment: Meeting the Challenge of Enlargement with the Candidate Countries of Central and Eastern Europe, COM (1998) 294, 20 May 1998, p. 5. 23 Ibid. 24 Idem, p. 6. 25 Council Directive 96/82/EC of 9 December 1996 on the control of major-accident hazards, Official Journal L 10, 14 January 1997, so-called Seveso II Directive, replacing Council Directive 82/501/EEC on the major-accident hazards of certain industrial activities, Official Journal L 230, 5 August 1982, adopted in reaction to the industrial accident from Seveso, Italy. 26 Communication from the Commission on Accession Strategies for the Environment: Meeting the Challenge of Enlargement with the Candidate Countries of Central and Eastern Europe, COM (1998) 294, 20 May 1998, p. 6. 27 Idem, p. 8. 230

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Strategy Paper: Making a Success of Enlargement. and especially note 38. Composite paper . The question of whether what has been achieved are not just “easy successes on paper”33 can be legitimately raised. Report on the progress towards accession by each of the candidate countries. “Pre-accession” in Marise Cremona (ed.Reports on progress towards accession by each of the candidate countries. 13 October 1999. in its Communication the Commission adopts a twofold approach to environmental protection issues in the framework of the enlargement process. the negotiations were closed relatively easily32 and the institutions accepted more or less lengthy transitional periods for the application of specific directives. XII/1. the Commission emphasised that. 30 European Commission. the Commission acknowledged the progress accomplished by some of the candidate countries and underlined the efforts that still had to be made by all candidates as regards the administrative capacity to implement the environmental acquis30. The EC institutions seemed to favour a flexible approach to chapter 22. One year later. as the capacity – both in terms of resources and of administrative preparation . COM (1999) 500. globally. The Enlargement of the European Union.Chapter 17 It was also underscored in the Commission’s Communication that the fact of identifying certain areas as requiring particular attention did not mean that these parts of the acquis were inherently more important than other parts. 6. 29 European 28 Idem. which was adopted after negotiations with most of the CEEC countries on the chapter devoted to environmental maters in the acquis (Chapter 22) had already been closed. p. 8 November 2000. 2003. 33 Ibid. none of the candidate countries was fully prepared as far as environmental legislative approximation was concerned and that all of them would face serious difficulties in the near future. 13 November 2001. 31 European Commission. COM (2000) 700. Composite paper . vol.of the new Member States to implement the acquis seems to be lacking. 231 . in accordance with the requirement that the NPAA reflect country-specific priorities. Commission. This last observation can be found also in the 2001 report31.Reports on progress towards accession by each of the candidate countries. 23. since in spite of the problems repeatedly emphasised all along the process. to the particular environmental needs and problems of each country. A global assessment of the problems and priorities common to all the candidate countries is supplemented by case by case attention. These two complementary criteria are at the heart of Commission’s annual reports on the progress of the candidate countries. COM (2001) 700. 32 Marc Maresceau. Thus. p.Oxford University Press. In its 1999 annual report29. Collected Courses of the Academy of European law.). but was based rather on the recognition that all the candidate countries had considerable problems in the areas in question28.

It.Chapter 17 3. While it is true that environmental protection officially became an area of public action in 199034 when the first ministry of environment was created.1. Partea I. the main tools for achieving these objectives are the elaboration of integrated policies. 232 . Bulletin. Politica mediului. Indeed. “Romania. ‘Second generation’ environmental legislation is founded on the concept of sustainable development. even after the transition to democracy. spring 1996. international cooperation and public participation. ADAPTING ROMANIAN ENVIRONMENTAL LEGISLATION: KEY PHASES OF THE ACCESSION PROCESS 3. nr. recognizes the right of citizens to associate in environmental protection organisations. Romania was. nr.ier. 36 Steven Stec. one of the last former communist countries to adopt ‘second generation’ environmental legislation36 making the protection of the environment a major public interest objective. By virtue of article 5 of the Environmental Protection Law. environmental impact studies and enhanced planning and implementation procedures.ro). Its stated aims are the protection of the biodiversity. A series of additional rights include the right to consultation on all environmental issues. the right of access to administrative or judicial authorities. the basic legislation stating the principles of environmental policy was adopted only much later. 35 Legea protectiei mediului. and the right to adequate compensation for environmental damages. Monitorul Oficial al României. Romania adopted its environmental legislation relatively late. According to Romanian law. CEELI Law report. comprising the prevention. Central and East European Law Initiative of the American Bar Association. 137 din 29 decembrie 1995. 30 (www. The attention given by the Environmental Protection Law to conformity programs as 34 Institutul European din Romania. Delayed Beginnings of an Environmental Protection System The extent of the challenge posed by EU accession in the sphere of environmental protection can be explained by a rather slow crystallisation of Romania’s environmental policy. Micromonografii . While much of the damage to the environment had its origins in Romania’s communist past. furthermore. the state recognises the right to a healthy environment and guarantees access to information concerning environmental conditions.Politici Europene. 304 din 30 decembrie 1995. the country did not make environmental protection a top priority. p. Not until December 1995 did the Romanian parliament adopt the Environmental Protection Law35 providing the basic framework for the protection of the country’s environment.New Law Ends Era”. alongside Macedonia. polluter-pays and precautionary principles.

Leaving aside areas requiring heavy investment and substantial administrative involvement40. 1996. Poland. a slow legislative process. waste management and atmospheric pollution. Romania was the only candidate country for which the Commission expressly stated that environmental issues should be given priority. Romania seemed to comply with the fundamental principles of the EC environmental policy stated in article 174 TEC (formerly 130 R)37. Ioan Hortopan. Indeed. Lithuania. the candidate countries had to identify their short-term and mid-term priorities for action and to adopt their NPAA for achieving them. however.Chapter 17 tools for gradually inducing industries to comply with international standards is one of its novel aspects: the legislation imposes a requirement of obtaining environmental permits. Mihai Lesnic. The most sensitive question. p. delays in the establishment of coordination structures for EU accession. Romania. the implementation of environmental legislation that has raised a whole series of problems ever since the adoption of the first informal report on the preparation of the CEEC countries38. Slovak Republic and Slovenia. Other problems highlighted were the lack of strategy in approaching environmental issues. could only meet EC standards in the long run. 38 Ibid. After the change in the European approach to enlargement represented by the adoption of the enforced pre-accession strategy. and it would become a sort of recurrent theme. 40 These areas are sewage sludge. COM(97) 2003 final. This report analyses in a detailed manner the state of legislative approximation in Romania until 1996. The European Commission’s first evaluation of Romania’s membership application39 would confirm these problems. This assessment would be later confirmed by the evaluations of the European Commission. which at that time was considered to be too hesitant. 3. Latvia. Szentendre: Regional Environmental Center. legislative approximation was also slow in the other areas. 39 European Commission’s Opinion on Romania’s Application for Membership of the European Union. concerned the implementation of the acquis. It is. 233 37 Simona .2. Estonia. drinking water. “Country Reports: Romania” in Approximation of European Union Legislation: Case Studies of Bulgaria. as well as the gap separating Romania from the countries in the ‘Luxembourg group’ in the matter of environmental protection. and overlapping administrative competencies in the implementation of the environmental acquis. Hancu. It likewise introduces a ban on waste imports and strict controls on hazardous substances. As far as the basic principles of environmental legislation are concerned. Hungary. Slow Pace of Approximation and the Issue of Formal Compliance One of the main issues identified by the informal evaluation referred to above was the lack of financial resources. Czech Republic. like the other candidates. with respect to which Romania. 97.

Monitorul Oficial. the reforms conducted were not considered sufficient and the Commission suggested strengthening the authority of the competent ministry. Thus. The same slow pace of legislative approximation will be recorded in 200143. working paper nr. The decision to sign the accession treaty with the eight CEEC. On the institutional level. 347 din 29 iunie 2001. A partnership between the different components of civil society and the local authorities was therefore instituted in order to promote public awareness of environmental protection. aprilie 2001. Centrul pentru politica publica. This document concentrates on a few high priority areas. was taken at the Copenhagen European Council of December 2002. Adopted in April 2002. 42 Legea 41 European 234 . COM (2002) 624. nr. the legislative approximation was proceeding slowly and without a real strategy or a coherent vision41.SEC(2002) 1409. A detailed action plan for legislative approximation for the years 2002 and 2003 was attached as an appendix. including environmental protection. Fondul de mediu in Romania. however. A new initiative in the field of national environmental protection was Romania Clean. 13 November 2002. the preparations of Bulgaria and Romania for accession would receive individualised treatment in the Roadmaps for Bulgaria and Romania46. 46 Roadmaps for Bulgaria and Romania. see Luminita Chivu. 45 Previously cited. 43 European Commission’s Regular Report on Romania’s progress towards accession. 24. The report’s main contribution. COM(2002) 700 final . Commission’s Regular Report on Romania’s progress towards accession. A Concrete Program for the Health of the Environment45. 73/2000 privind Fondul pentru mediu. this policy document presented itself as an instrument for systematising the national efforts for EU accession.Chapter 17 Romania has experienced some difficulties also in this respect. 44 European Commission’s Regular Report on Romania’s progress towards accession. which summarise the progress that needs to be made in view of accession in 2007. Romania had to adopt rules instituting an environmental fund42. COM(2000) 710 final. plus Cyprus and Malta. nr.SEC(2001) 1753. the only notable progress being the adoption of the NPAA. as the adoption of the NPAA was delayed. Constantin Ciutacu. The Commission observed that in the area of environmental protection. It thus met a requirement stated in the Commission’s regular reports. Another important aspect of the adjustment to EU standards involved the financing of environmental policies. Partea I. The year 2002 brought signs of a positive evolution: Romania opened negotiations on chapter 22 in June and the Commission provided for the first time a more optimistic evaluation of the approximation of environmental legislation44. Societatea Academica din Romania. lays in the policy that it established in view of ensuring effective public participation in environmental matters. For an acount of the problems related to the creation of this fund. COM(2001) 700 final . Thereafter.

According to the Commission’s 2004 assessment. on the other). nuclear safety and radiation protection. The Commission noted. particular attention still had to be paid to completing the transposition of certain aspects of horizontal legislation and sector-specific directives concerning air quality. waste management. water quality. 235 . were to play a key role in the implementation. regional and local levels and improving the coordination between different administrative levels as well as with other relevant authorities. and environment. according to the Romanian legislation. that some attempts to develop strategic planning had been made in certain areas. The Commission’s next regular report48 underscored that Romania has made good progress in the area of environmental protection since its application for membership was first reviewed in 1997. water and forestry. the Commission noted that the recruitment procedures in environmental administration seemed to be well on track and that. Also on the positive side. as waste management. the report noted that Romania had taken decisions to strengthen its administrative structures. nonetheless. industrial pollution. such. It emphasised. provided sufficient budgetary resources continued to be allocated to the environment sector. the 2003 report emphasised that Romania was concentrating too much on legislative approximation and formal compliance with the obligations stemming from the acquis to the detriment of effective implementation. this should considerably increase the performance of the public services. But it stressed that there was still much to be done with respect to the establishment and completion of necessary implementing structures: including further strengthening administrative capacity at national. The Commission also insisted on the necessity of restructuring the local environmental protection agencies that. on the one hand. The 2003 report also criticised the institutional structure set up to implement environmental legislation. Finally. surveillance and control of environmental rules.SEC(2003) 1211. Taking note of the merger of two previously independent ministries (agriculture. noise. the Commission criticised this approach as bringing about instability and a confusion of competencies in a context already burdened by insufficient administrative capacities. however. the next assessment of Romania’s application by the Commission47 confirmed the positive evolution of legislative approximation in the field of environmental protection. chemicals. However. Romania had achieved a generally satisfactory level of legislative alignment. that In order to be ready for membership. COM(2003) 676 final .Chapter 17 In 2003. COM (2004) 657 final. 47 European Commission’s Regular Report on Romania’s progress towards accession. 48 European Commission’s Regular Report on Romania’s progress towards accession. for instance.

such as glass. Prepared by the Commission’s Departments. February 2005. 50 Romania has requested transition periods for ten directives (on the control of volatile organic compound emissions resulting from the storage of petrol. water quality. the quality of water intended for human consumption. See on these aspects. report no. According to the Commission’s 2004 report. Romania’s negotiations with the EU on the environmental chapter were conducted relatively quickly. (www. According to the accession treaty signed in Luxembourg on 29 April 200549. The longest transitional period obtained by Romania concerns water quality.ro. The global objective of recuperation and disposal of most categories of waste should be attained by 31 December 2011. 4.mie. 49 The text is available in Romanian on the homepage of the Ministry of European Integration: http://www. urban waste water treatment. only limited aspects of the EC legislation could be subjected to transitional periods and only if the candidate state presented a credible timetable for full compliance with EU standards. Ministerul Integrarii Europene. including in terms of investment. integrated pollution prevention and control. the requirements of EC legislation will be progressively implemented during the first three years after accession. waste management. and this figure should rise to 48% by 2010 (with several exceptions for certain categories of waste. 236 . packaging and packaging waste. the landfill of waste.mie. Document de pozitie in negocierile asupra capitolului 22 – Protectia mediuluiui inconjurator. air quality. 5859/05. which should meet EU standards by 2017. By January 1st 2007. the integral recycling of which will not be possible before 2013). nature protection. Concerning air quality. even though the negotiations on this chapter were soon to be closed. Romania enjoys the benefits of various transitional periods concerning water quality. emissions of certain pollutants into air from large combustion plants and incineration of waste) and for one regulation (on the supervision and control of shipments of waste). The issue of formal compliance with EU environmental acquis continued to be singled out by the Commission. This evaluation regards the full implementation of European legislation as a major challenge for Romania. additional efforts are required in order to implement fully EC legislation in key sectors such as air quality. A summary of the result of the negotiations can be found in Report on the Results of the Negotiations on the Accession of Bulgaria and Romania to the European Union. discharges of dangerous substances into surface water. As the Commission constantly recalled. the issuing of integrated permits.ro ). Romania will also have to tackle the issue of certain particularly problematic incineration facilities by 2008-2009. Romania must be able to recycle 32% of the total volume of wastes. OUTCOMES OF THE NEGOTIATIONS AND FUTURE CHALLENGES Like with the other CEEC countries. waste electrical and electronic equipment. waste and incineration installations50. and chemicals.Chapter 17 The necessity of putting credible strategies into practice in order to implement effectively the environmental acquis is a recurrent theme in the Commission’s assessment.

104 p. Most of the funds Romania will have to allocate to environmental protection will be dedicated to improving water quality. Romania should therefore seek assistance – both technical assistance and co-financing support – for the years to come to in order to meet its investment needs. amounting to nearly 20 billion euros for the next twenty years.Chapter 17 These transitions periods were accepted by the EU in areas where compliance with its standards requires the most substantial financial investment by Romania. România ?i integrarea european? . As far as the other challenges identified by the Commission are concerned. 53 Ibid. Nevertheless.mst. This seems. 22 iunie 2005.euractiv. Institutul European. www. This is an issue that affects other areas of the acquis as well. only one of them seems to have been effectively solved by Romania and this is the issue of legislative approximation. the administrative capacity to implement fully the environmental acquis. as recent assessments by the same sources indicate a total of 29. Romania is to take up the financial challenge by mobilising three major sources of funds: direct state budget financing (approx. 52 See Antoaneta Etves. financing by private operators (9 billion euros) and internal and external financing programs (13 billion euros)53.dk/udgiv/Publications/2003/87-7972-7174/html/kap01_eng. Romania’s Road to Accession: the Need for Environmental Focus. moreover. “Provocarile europenizarii în protectia mediului: cateva refletii pornind de la cazul României” in Ana-Maria Dobre. However. Studies have shown54 that Romanian institutions are not always prepared to carry out the technical preparations required to obtain funding from financing programs like ISPA. 54 Danish Ministry of Environment. 2005. But due to the technical nature of the subject matter.). Programulu National de Aderare la UE.htm). environmental protection as a whole will continue to pose a serious financial challenge to Romania. According to the initial studies conducted by the European Commission51. Ramona Coman (coord. mai 2000. seems the most difficult to address and needs particular attention. (http://www. 237 51 Guvernul Romaniei. 89. These figures provide an indication of the extent of the environmental problems from which Romania still suffers and of the complexity of the environmental issues related to its EU accession. 55 Cristina Arion. the necessity to comply with European environmental protection standards will require from Romania a financial effort on the order of 3 to 4% of GDP. to have been an underestimate. it is a particularly vexed question in the in Uniunea europeana”. Truly national priorities must also be reflected in the conception and application of this policy. also in the longer run. Thematic Report. p. The third challenge identified by the Commission.3 billion euros52. which seems to be the most serious environmental problem. It is thus expected that Romania will rely heavily on EU funding and this is another compelling reason for strengthening administrative capacity.ro . “Miliarde de euro pentru intrarea aerului românesc . it should not be forgotten that most of the efforts that have been made in this respect over the last years amounted to concentrating on the formal and technical aspects or the acquis without real strategic reflection on environmental policy. February 2003. 7 billion euros). which is not only about complying with standards55.

Official Journal L 230. E. Official Journal L 10. of the one part. monitoring equipment. 15 June 2005. As recent studies have indicated56. Official Journal L 357. 1: For a Stronger and Wider Union. training of personnel. 31 December 1994. Official Journal L 206. – Europe Agreement establishing an association between the European Economic Communities and their Member States. Agenda 2000.C. www. 2 – 189. no.16. Administrative Capacity for Implementation and Enforcement of EU Environmental Policy in the 13 Candidate Countries.int. of the other part. EC Documents: – Council Regulation (EEC) no 1973/92 of 21 May 1992 establishing a financial instrument for the environment (LIFE). 57 “EU/Romania: Bucharest Warned to Act on Accession Problem Areas”. and between local and central authorities is a major obstacle to effective action.eea. 5 August 1982. inspection and enforcement are as a general rule inadequate for the successful implementation of the acquis. European Report. poor communication at the central level between competent ministries. Vol. 3 May 1995. In addition. – Council Directive 96/82/EC of 9 December 1996 on the control of majoraccident hazards.Chapter 17 context of environmental protection. – Conclusions of the European Council of Copenhagen. – Commission. p. 238 . 56 ECOTEC. Relevant official documents and information: Official Documents: 1. Administrative capacity. Bull.eu. and Romania. COM (94) 320 final. White Paper on the Preparation of the associated countries of Central and Eastern Europe for integration into the internal market of the Union. A Final Report to DG Environment. The Europe Agreements and Beyond: A Strategy to prepare the Countries of Central and Eastern Europe for Accession. The insufficiencies in the effective implementation of the environmental acquis are considered important enough to have justified the recent issuance of a warning letter by the European Commission57. – European Commission. 14 January 1997 (Seveso II Directive) replacing Council Directive 82/501/EEC on the major-accident hazards of certain industrial activities. All these issues should be addressed as a matter of priority.. 6/ 1993. the problems affecting Romania’s capacity to implement the acquis are serious. shortcomings in implementation could delay Romania’s accession. COM (95) 163 final. 22 July1992. 13 July 1994. – Communication from the Commission. p. June 1993. In the opinion of the Commission.

report no. – Working Document of the Commission. 20 May 1998. COM (97) 2003 final. 8 November 2000.Reports on progress towards accession by each of the candidate countries. – European Commission’s Regular Report on Romania’s progress towards accession. Roadmaps for Bulgaria and Romania. 6 October 2004. 20. COM (2002) 700 final. 13 November 2001. February 2005.Reports on progress towards accession by each of the candidate countries. Prepared by the Commission’s Departments. – European Commission.U. 9 October 2002. – European Commission’s Regular Report on Romania’s progress towards accession. E. 13 October 1999. – European Commission. The Challenge of Environmental Financing in the Candidate Countries. 2: The Challenge of Enlargement. – European Commission. Guide To The Approximation of European Union Environmental Legislation. – Communication from the Commission. – European Commission’s Opinion on Romania’s Application for Membership of the European Union. COM (2000) 700. SEC (97) 1608. COM (97) 2000. Bull. Composite paper . July 1997. COM (2004) 657 final. COM (1998) 294. – European Commission’s Regular Report on Romania’s progress towards accession. – Report on the Results of the Negotiations on the Accession of Bulgaria and Romania to the European Union. Report on the progress towards accession by each of the candidate countries. COM (1999) 500. Composite paper . Official Journal L 213. – European Commission’s Regular Report on Romania’s progress towards accession. COM (2001) 304 final. – European Commission. COM (2002) 624. 239 .. – European Commission’s Regular Report on Romania’s progress towards accession. Supplement 1997/05. – Council Decision 2001/584/EC of 18 June 2001 on the conclusion of the Agreement between the European Community and Romania concerning the participation of Romania in the European Environment Agency and the European environment information and observation network. 5 November 2003. COM (2003) 676 final. COM (2001) 700. 8 June 2001. COM (2000) 710 final. Strategy Paper: Making a Success of Enlargement. 5859/05. 7 August 2001. COM (2001) 700 final. – Communication from the Commission on Accession Strategies for the Environment: Meeting the Challenge of Enlargement with the Candidate Countries of Central and Eastern Europe.Chapter 17 Vol. 8 November 2000. 13 November 2001. 13 November 2002. p.

( www. p. 2002.Politici Europene. Micromonografii . 240 . Asser Press. December 2001 (http://www. Program concret pentru sanatatea mediului. “Provocarile europenizarii in protectia mediului: cateva reflectii pornind de la cazul Romaniei” in Ana-Maria Dobre. Monitorul Oficial al Romaniei. Document de pozitie in negocierile asupra capitolului 22 – Protectia mediuluiui inconjurator. Monitorul Oficial al Romaniei. mai 2000 (www.dk/homepage ). 641 – 677. m s t . The Environmental Challenge of EU Enlargement in Central and Eastern Europe.). Kirstyn Inglis (coord. Kristian Tangen. Constantin Ciutacu. working paper nr. aprilie 2001.mst. Politica mediului.ro). “Romania Confronts Environmental Problems”. Partea I. 104 p. Fondul de mediu in Romania.mie. – Alexander Carius. no. aprilie 2002 (www. Romania si integrarea europeana . 137 din 29 decembrie 1995. Speed and Flexibility” in Katharina Holzinger and Peter Knoepfel (eds. Programul National de Aderare la UE. “The Shadow of the Past: Environmental Issues and Institutional Learning in EU Enlargement Processes”.M. Bucuresti.ier. – Legea protectiei mediului nr. Ingmar von Homeyer. – Cristina Arion. Studies and monographs: – Razvan Amariei. Thematic Report. 304 din 30 decembrie 1995. Institutul European. National Documents: – Guvernul Romaniei.C.ro). Societatea Academica din Romania. Stefani Bär. Partea I. 2005.ro ). Centrul pentru politica publica. FNI Report. Romania curata. Helbig&Lichtenhahn. Romania’s Road to Accession: the Need for Environmental Focus. p. – Danish Ministry of Environment. – Legea nr. 24. nr. The Hague.mappm. March 1st. – Ministerul Integrarii Europene. ( h t t p : / / w w w. 1/2001. Environmental Policy in a European Union of Variable Geometry? The Challenge of the Next Enlargement. February 2003. 347 din 29 iunie 2001.7 9 7 2 . 2005.7 1 7 4/html/kap01_eng.gov. Ramona Coman (coord. – Ministerul Apelor si al Protectiei mediului. Expectations. South-East Times. Kirstyn Inglis – “European Environment Law” in Arnold Ott. – Luminita Chivu. d k / u d g i v / P u b l i c a t i o n s / 2 0 0 3 / 8 7 .Chapter 17 2. 30 (www. nr. pp. Thematic Report. Handbook on European Enlargement. The Fridt Jof Nansen Institute. T.htm). Basel. – Atle Christer Christiansen.). – Rainer Arnold. 1999.). “The Eastern Enlargement of the European Union and Environmental Policy: Challenges. – Danish Ministry of Environment. – Institutul European din Romania. 45. 73/2000 privind Fondul pentru mediu.ro).

org.eipa.mie.ro. – Regional Environmental Centre for Central and Eastern Europe: www. – Anne Marie Sciberras. – Ministerul Apelor si al Protectiei Mediului: www. Hungary.). 1996.europa. – Ministerul Integrarii Europene: www.New Law Ends Era”. – Euractiv: www. Poland.eu.nl). pp. no.Chapter 17 – Marc Maresceau. CEELI Law Report . Collected Courses of the Academy of European law. Latvia. 2003. Slovak Republic and Slovenia. Internet Information Sources: – European Commission. 9-42. XII/1. 149.htm.org/env/epr/studies/romania/welcome. Szentendre: Regional Environmental Center.ro. DG Enlargement Page on Romania: www.ro.ier. – Regional Environmental Center. – United Nations Commission for Europe.mappm. Lithuania.unece. spring 1996. 241 . Eipascope. 3/2002 (http://www. – European Commission Delegation in Romania: www. Estonia.infoeuropa. Czech Republic. “Challenges for the Accession Countries in the EU’s Environmental Field”. “Romania. Newsletter from the European Commission on Environmental Approximation no 15/ August 1999.htm. Romania. vol.euractiv.Oxford University Press. – Institutul European din Romania: www. “Pre-accession” in Marise Cremona (ed. – « New EU Instrument To Attract Fresh Funds For Environmental Investment » Enlarging the Environment. Central and East European Law Initiative of the American Bar Association. Approximation of European Union Legislation: Case Studies of Bulgaria.rec. Environmental Performance Review for Romania: www. The Enlargement of the European Union. p.ro.int/comm/enlargement/romania/index.ro. Bulletin. – Steven Stec.

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Chapter SECTION 6 EU ECONOMIC POLICY AND EMU 243 .

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However. The mounting tensions within. The outcome was the Werner Committee on EMU. French negotiators showed that they were not willing to contemplate the shift of sovereignty over fiscal policy to the EEC level. They argued – from their own historical experience of German currency union in the nineteenth century – that a monetary union would not work without a political union (and a test of this was a fiscal authority at the EEC level). where the French President Georges Pompidou launched the idea (which earlier had been raised by Giscard d’Estaing as Finance Minister. the Bretton Woods exchange-rate system. German negotiators were suspicious of French seriousness of purpose. This is characteristic of a long-standing driving role by French political leaders on EMU. The next main achievement was the consequence of Franco-German leadership by Chancellor Helmut Schmidt and President Valery Giscard d’Estaing: the Exchange-Rate Mechanism (ERM) of 1979. and break up of. and it is historically interesting to contrast them. Hence German negotiators lost confidence. United Kingdom. for instance. The Werner Report was Keynesian rather than monetarist in inspiration. The main legacy of this episode was a system of exchangerate co-ordination called the ‘Snake’. the inflationary shock of the 1973 oil crisis and consequent ‘stagflation’ (the combination of high inflation and high unemployment) undermined the credibility of Keynesianism and prepared the way for a new economic paradigm based on monetarism. neither France nor Italy were able to sustain membership. This was seen by them as a first stage in a process of * Professor. but rejected by President De Gaulle). Bradford University. Hence the Werner blueprint for EMU was soon dead. It was the first of two committees on EMU (the second was the Delors Committee in 1988-89). 245 . The report shared the fate of Keynesianism in the 1970s. which reported in 1970. Cardiff University. No less seriously. This was the so-called ‘coronation’ theory of EMU: that monetary union was the final point in a process of economic and political union that would ensure a framework of solidarity to make it sustainable. it did not speak of the requirement of an independent European central bank and gave great attention to a balance between an economic pillar with fiscal authority and a monetary pillar involving co-ordination of the national central banks.Chapter 18 CHAPTER 18 ECONOMIC AND MONTERAY UNION Kenneth Dyson* 1. HISTORY OF EMU The history of the Economic and Monetary Union (EMU) goes back to the Hague Summit of the leaders of the original 6 founder members in 1969.

So. This was a politically skilful move. crucially. and this required a firm anti-inflationary policy stance. It was always recognised that strategically everything depended on Germany if there was to be EMU. its completion by eliminating exchange-rate risk and making prices and costs transparent. Strikingly. it also implied a privileged German role. Delors ensured a pro-EMU leadership. Further testing of French resolve with the January 1987 ERM crisis persuaded French negotiators that a new determined effort was required to achieve EMU. from Germany. The ERM itself evolved. not whether (which was a matter for heads of state and government). French policy was to ensure that the Franc was as stable as the Deutsche Mark. a so-called ‘D-Mark’ zone. A key date was the French ERM crisis of March 1983: when President Francois Mitterrand’s reflationary economic policy ran into crisis. and. not with the ERM in mind. The key move came. However. They were co-opted in order to bind them in to the process of creating EMU and thus prevent them from becoming technical and highly persuasive critics. it was an object of pride. EMU was the logical complement of the Single Market. Hence linking to it ensured economic stability. It was envisaged as a system of exchange-rate co-ordination based on an artificial European unit of account. as with Schmidt and the ERM. Delors concentrated on ensuring a unanimous report. Chancellor Helmut Kohl took this up and worked on it with European Commission President Jacques Delors (who had been French Finance Minister during the 1983 ERM crisis and was a long-standing advocate of EMU). as negotiated technically by the central bankers. the membership was made up largely of the national central bank governors. The Hanover Summit of 1988 was used to establish the Delors Committee on EMU. This process is of vital long-term importance. German Foreign Minister Hans-Dietrich Genscher used the German Presidency of the EEC in early 1988 to re-launch the idea of EMU as timely now that the Single Market programme had begun. the remit was that the Committee was to consider only how EMU was to be achieved. Parities were set in terms of the Deutsche Mark. he opted to stay in the ERM and to shift to a policy of competitive disinflation. the Bundesbank insisted from the outset that it would set monetary policy only with Germany in mind. it was a matter for the individual Member State to take corrective action. However. if a currency had problems. not the Bundesbank.Chapter 18 creating EMU by establishing a ‘zone of economic stability’ in Europe. The ERM is vitally important in the history of EMU. Germany had the strongest and most stable currency in the EEC. It was the training ground for EMU: a stage in which Member States could demonstrate their preparedness for EMU by their ability to sustain a parity without tensions or devaluation (a formula to be taken up in the Maastricht convergence criteria for entry). The design made sense in that Germany had the most stable and credible EEC currency. This meant that the German Bundesbank was in effect setting the monetary policy parameters for the ERM members. it turned out to be a Deutsche Mark centred system. Political leadership of EMU was acquired at a price: the all-important 246 . The Deutsche Mark was of enormous symbolic importance in post-war identity building for Germans.

It was also not consistent with the ‘coronation’ theory in that progress with political union was slight. An independent European Central Bank (ECB).Chapter 18 institutional and policy details of EMU were delegated to technicians. beginning in December 1990. with stage one of EMU to begin in June 1990 and an intergovernmental conference (IGC) on EMU to follow. This was wholly consistent with Kohl’s central aim – to use Maastricht to make EMU and European integration ‘irreversible’. to secure price stability. The Delors Report was accepted at the Madrid Summit. ‘German unification and European unification are two sides of the same coin’. EMU lacked a secure framework of solidarity. There was reference to fiscal rules to bind national governments. The process of creating EMU was accelerated. 247 . Hence it was in major respects an ‘EMU for central bankers’. far removed in guiding economic philosophy from the Werner Report. The latter Committee drafted the Statute of the European System of Central Banks (which was untouched by the IGC) as well as the Statute of the European Monetary Institute which was to prepare stage three of EMU from 1st January 1994. A process of macro-economic policy co-ordination (the Broad Economic Policy Guidelines). The surprising element was the agreement to a final deadline for stage three: if not 1996. In his phrase. Kohl was determined to ensure continuity in Germany’s European policy and demonstrate this by actively pursuing the main European project at hand. The core principle enshrined in the Delors Report of 1989 was German – that the new European central bank must be independent and have just one single mandate. borrowed from Konrad Adenauer. especially the central bankers. by German unification in 1989-90. Convergence criteria to assess whether a state was ready to enter. and political leadership strengthened. Opt-outs for Britain and Denmark. The difference between the two IGCs was that the IGC on EMU had been very carefully prepared by the Delors Committee and much technical work in the EC Monetary Committee and the Committee of EC Central Bank Governors. then 1st January 1999 at the latest. EMU. and three stages of EMU were proposed. It was also in essence a monetarist construction. Hence doubts about its sustainability remained. The EMU provisions of the Treaty on European Union that emerged at the Maastricht Summit in December 1991 were in most respects unsurprising: A three-stage process. Hence it was decided to bring forward the IGC on EMU and to have a parallel IGC on political union (which was strongly pushed by the Germans). An excessive deficit procedure. This last issue was to become critical given further slow progress with the Amsterdam and the Nice Treaties and then the crisis of ratification with the European Constitutional Treaty. The major input of ideas came from the Bundesbank. The Maastricht convergence criteria and the excessive deficit procedure were worked out in the EC Monetary Committee.

For French and other policy makers the ERM was an expression of German/Bundesbank power. there were also technical arguments. in short. never far from the surface in debates about EMU. they are bound together by a policy paradigm of sound money and finance on which the Treaty provisions rest. Power was. However. Behind this argument was a resentment at US monetary and economic power and a desire to see an independent Europe. and transparency of prices and costs. Similarly. fiscal policy and structural policies to improve competitiveness. the solution was either exit or a transfer of German monetary power to a European central bank in which Germany would be just one voice amongst others. The solution seemed to lie in sharing power in a currency union. Most EU economies were highly tradedependent. French views on EMU were based on an anxiety about Germany’s growing economic and monetary power within Europe and some evidence that it was a less pliant partner. This paradigm has a number of key theoretical elements: The neutrality of money According to monetarism. 3. In the absence of those conditions EMU could prove a source of tensions and conflicts rather than a solution to them. These two themes – the structural power of the US and of Germany – were behind Pompidou’s launch of EMU at the Hague Summit in 1969. no commissions to pay on foreign-currency exchange. Moreover. THE REASONS BEHIND EMU EMU originally emerged out of the debate about the sustainability of the post-war Bretton Woods system of exchange-rate co-ordination based on the US dollar. Its demise would clearly destabilise the trading and investment patterns that had been at the heart of European integration with serious effects on output and jobs. EMU offered a reduction of transaction costs: no more barriers of exchange-rate risk and uncertainty. However. this solution begged further questions about the conditions of a successful currency union – notably economic convergence and political solidarity. even with the ERM in which rates could be changed whether by agreement or crisis.Chapter 18 2. There was also a desire to escape from the tensions and conflicts of the ERM. This system suffered essentially from a US policy of ‘benign neglect’. However. French policy makers in particular used this argument to suggest that Europe needed its own ‘monetary personality’. The trade potential was limited by exchange-rate risk and uncertainty. the potential gains of the European Single Market were not fully exploited. imports and exports accounted for a very large proportion of GDP. in the long-term monetary policy does not affect output and employment. Hence it can be targeted strictly and solely on price 248 . EMU would ‘complete’ the single market. THE INSTITUTIONAL FRAMEWORK Central to the institutional framework of EMU is an asymmetry between monetary policy.

This shapes the mandate of the European Central Bank. There is no qualified majority voting as in the Council of Ministers. The solution is an independent central bank and strict fiscal rules. Hence they are disciplined in their behaviour. Independence is very important for two reasons. nor any member of their decision-making bodies shall seek or take instruction from any of the Community institutions or any government of a Member State. It also gives birth to the argument that economic growth and employment are determined by supply-side conditions. Credibility depends on ‘binding hands’. Here the voting rights take the form of ‘one man/one vote’. The ESCB is considered to be highly independent. empirical research generally shows a negative correlation between various indexes of central bank independence and the level of inflation. Monetary policy is ‘supranational’. Hence politics generates a business cycle of boom and bust that destabilises the economy. This is designed to demonstrate that members are not there to represent their states but to reflect on the Euro Area as a whole. on the other hand are tempted to boost economy in short term in order to get political popularity even if this conflicts with promises to control inflation. Moreover. members of an independent central bank do not have to be re-elected. Inflation is a phenomenon of expectations. effective anti-inflation policies depend on building and maintaining credibility with market actors. One important institutional features of the ECB is its independence. service. Their prime role is setting the interest rate for the Euro Area as a whole. The result is inflationary policies that. The design of the ECB and of the Stability and Growth Pact reflect this belief. According to monetarism. vicepresident. They expect and anticipate that the central bank will be tough on inflation. notably how competitive product. First. The ECB governing council is responsible for monetary policy and consists of the ECB president. which groups together the ECB and the constituent national central banks. 249 . The political business cycle Governments have an incentive to lower taxes and increase spending as elections approach. Politicians. Monetary policy is solely a matter for the European System of Central Banks. are replaced by disinflation. the new exchange-rate mechanism that ties the national currency to a parity and fluctuation band with the euro. directors and the (currently) 12 national central bank governors. For EU members that seek Euro Area entry this requirement is met by participation in ERM2. The Treaty of Maastricht states that neither the ECB. capital and labour-markets are. This is achieved by making the central bank independent and by putting in place strict fiscal rules. following the election. nor a national central bank.Chapter 18 stability.

This puts in place a set of fiscal rules that can be described as ‘hard’ co-ordination in that the rules are fairly precise and sanctions are available for those states that repeatedly fail to meet them. however. in part because of domestic resistance to market liberalisation and in part because the Lisbon process has been discredited by slow progress and a growing gap in productivity performance between the US and the EU/Euro Area. flexibility and mobility in labour markets. peer review. recognised that the fiscal policy of one state spills over into other states. The ECB is independent on all dimensions: in defining what price stability means as an objective. and any sanctions. in its personnel (who must be drawn from the central banking profession). The result is a common interest in employment policy and structural reforms to markets and to welfare states. It is based on agreeing broad policy guidelines rather than rules. agreed in 2000. Here again. This pillar of EMU has proved even more controversial. knowledge-based economy by 2010. in its instruments (it has sole responsibility for interest rates and open market operations). any ‘naming and shaming’ of states. but is even more independent. 4. states could be tempted to ‘free ride’. fiscal policies remain the responsibility of the Member States. the ECB monetary policy needs to be supported by fiscal policy. This spells out basic rules and procedures. engaging in fiscal expansion and exporting the effects to the rest of the Euro Area through higher interest rates for all. Otherwise. responsibility remains with the Member States. The solution was the excessive deficit procedure in the Treaty. The ECB originally defined its price stability target as inflation “below 2 per cent”. It is. with the loss of the national exchange rate on entering EMU. However. and more competition in product. improved education and training. Hence they are left with just fiscal policy (which is constrained by rules). indeed. It lacks firm. binding national targets. with the objective of creating the world’s most advanced. Structural policies to improve competitiveness are vital in the EMU because entry states lose their two main mechanisms for economic adjustment – the exchange rate and the interest rate. Most important is ‘goal’ independence. and ‘benchmarking’ best practice in improving growth and employment. co-ordination is ‘soft’ and takes the form of the Open Method of Co-ordination. This reflected its absolute priority to establishing its credibility as an inflation fighter when it had no history as an institution on which to draw. In contrast. Similarly. Moreover. The Pact has proved highly controversial and was amended in 2005 (see below). in contrast to fiscal policy. the discipline of foreign exchange markets on national fiscal policies is lost.Chapter 18 The role of the Central Bank shows the highly ‘supra-national’ character of the EU’s monetary policy framework. However. At the heart of this has been the Lisbon process. these were given greater specification in the Stability and Growth Pact. Hence a new discipline is required. service and capital markets. THE ECB AND MONETARY POLICY The ECB is modelled on the German Bundesbank. it can claim to be the most independent central bank in the world. and in its finances (its capital comes from member central banks which are themselves independent). It could not assume that it could simply borrow (and 250 . negotiated between 1995 and 1997 on the initiative of the German government.

the ECB monetary policy has contributed to making the euro a credible currency by resolutely containing inflationary pressures. In this sense it has gained credibility. especially the property markets in Italy and Spain. It has revised its monetary policy strategy in 2003 to reflect the lack of short-term predictive value of the money supply ‘pillar’ of the strategy for inflation. However. There have also been some negative effects in asset price inflation. Aggregate inflation has remained close to its target. One criticism is that the inflation target should be a political decision. especially in his press conference after council meetings and in testimony before the European Parliament. Finally. it is argued that ECB policy is too inflexible because it lacks a ‘symmetrical’ inflation target. Greater stress is now laid on the economic ‘pillar’. Low interest rates have also meant an enormous relief on the debt servicing costs of states like Italy: the higher the public debt. 5. reflecting substantial domestic structural changes. This very strong disinflationary bias could prove costly to growth and employment. Germany has substantially reduced its unit labour costs over the same period. and forecast inflation. Impressively. fiscal policies. the greater the relief. so that 251 . There is a lack of democratic accountability. inflation can be too low to facilitate growth. At the same time interest rates have been at an historical low for most Euro Area states. On the other hand. The minutes of ECB governing council meetings are not published. Another criticism points to a lack of transparency. In 2003 this target was redefined as “below but close to 2 per cent”. Germany – with just about the lowest inflation rate – has experienced much higher real interest rates than its competitors. showing that it has gained. which includes a range of variables like exchange rate. a series of problems have emerged: First. which earlier had to set their own interest rates at a higher level than German rates because they lacked credibility. The money supply ‘pillar’ remains in part because it is seen as of value in capturing asset price inflation and longer-term threats from excessive credit and in part to reassure those who wish monetary policy to be based on a single clear rule. and the central bank accountable for meeting this target (as with the Bank of England).Chapter 18 squander) the credibility of the Bundesbank. EVALUATION OF EMU AFTER 5 YEARS Despite the criticisms made of it. but speaks of “below 2 per cent”. German exports to the Euro Area states have grown enormously since 1998. It has not proved a main beneficiary of EMU. The result has been expansionary monetary policy for most Euro Area states. The ECB has not escaped criticisms. It does not set a target with an upper and lower boundary. members do not express their own views. especially from British economists and policy makers. wages. The ECB has been very successful in locking in market expectations of Euro Area inflation very close to its target. the main economy of the Euro Area is locked into economic stagnation. However. This job is left to the ECB president.

EMU did not prove a force promoting convergence in growth and employment rates. The Pact takes over the convergence criteria of deficits no higher than 3 per cent of GDP and public debt at 60 per cent of GDP. Since then nominal growth rates have fallen. Secondly. The explanations are domestic rather than to be found in the Euro Area. Larger states like France. devaluation. The Pact has proved less effective than the Maastricht convergence criteria in enforcing fiscal discipline for the simple reason that the convergence criteria were backed by the sanction of exclusion from joining EMU. Its competitive position deteriorated after 1999. Some Member States. By 2005 Italian politicians were beginning to contemplate euro exit. Finland. this process ceased after 1999. after entry fiscal performance diverged rather than converged. France. Belgium. it proved incapable of reducing its fiscal deficits and resorted to creative accounting to hide the true position. Its debt position was twice the level in the Maastricht criterion (60 per cent of GDP). In consequence. and growth very low. Ireland. by 2005 some big problem states were beginning to emerge and questions to arise about whether they could sustain membership. Italy and the Netherlands generated dismal figures. Hence the ECB has a very strong interest in the Pact. again. on the other. This is designed to ensure that debt comes down towards 60 per cent. even though it would lead to a huge increase in debt servicing costs. The last five years saw divergence in these indicators. It can be argued that the costs of euro exit are higher for problem cases like Italy than for more successful states. unemployment remains very high. Italy had been deprived of the traditional instrument that it had used to restore lost competitiveness. Germany and Italy repeatedly breached the limits. However. hence Italy and others worked hard to address fiscal problems in 1996-97. though the formation of the Euro Area witnessed convergence in inflation rates and fiscal deficits.Chapter 18 by 2005 it had regained a significant competitive advantage after starting with an overvaluation of the Deutsche Mark on entering the Euro Area. divergence was more evident. It identifies the central objective as fiscal positions “close to balance or in surplus” over the economic cycle and deficits no higher than 3 per cent. displayed considerable discipline: Austria. Germany. Finland and Spain enjoyed expansion. Thirdly. Italy was the Achilles heel of the Euro Area. In consequence of poor growth. Despite these achievements. for instance. On the one hand. Moreover. THE STABILITY AND GROWTH PACT The Pact is central to the credibility of the Euro Area and is designed to ensure that Member State fiscal policies support rather than undermine the ECB monetary policy. it was premised on trend growth rates that held when the Maastricht Treaty was being negotiated. especially smaller. and was a critic of its reform in 2005. Led by Italy. they included Greece and Portugal. 6. However. 252 .

Sweden has not officially negotiated an ‘opt-out’. Slovenia) are targeting 2007. they do not deal with growth rates or employment. More stress was to be laid on the debt criterion. states were to be under greater pressure to cut debt during periods of economic expansion. They raise the question of whether “real” convergence can and should be sacrificed for the sake of meeting the Maastricht criteria. If Italy were to avoid the excessive deficit procedure. others approximately 2010 (Bulgaria and Hungary). They have established a central parity with the euro and must keep their currencies within the fluctuation band “without severe tensions” and “without unilateral devaluation” for at least two years. 7. Hence there is a chronic fiscal problem in parts of the Euro Area. Malta. This blow to the authority of the Commission was a blow to the credibility of the Pact. the new Pact would lose any serious credibility. However. and each state remains responsible for its own entry strategy. Latvia. This change meant that Italy became a key test case of the credibility of the reformed Pact. Accession states are given only one option: to become ‘Member States with derogation’ which means that they are expected to prepare for entry. states with debt levels below 60 per cent were given more flexibility over deficits. Latvia. Euro Area entry depends on meeting a series of conditions. These are tests of “nominal” convergence. and to prolong the length of time that states had to correct deficits. The next issue is ERM2 entry: six states have joined since 2004 . This is a market-test of convergence. targeted on states with the highest debt. Cyprus. Some states (about six of the 2004 entrants: Estonia. no timetable is attached. and long-term interest rates (again a market-based test).Estonia. In September 2003 the Pact hit a crisis when France and Germany persuaded ECOFIN to halt the excessive deficit procedure that the Commission wished to apply to them. public debt (60 per cent). deficit (3 per cent of GDP). but a referendum in September 2003 showed the clear resistance of the Swedes to join the euro-zone. they are running deficits outside 3 per cent. whilst Romania targets 2014. Lithuania. fiscal. for instance. to take a looser view of when economic conditions might allow a higher deficit. The other Maastricht convergence criteria to be met relate to: inflation (a tough test based on the three best-performing EU states). Two should be met on EU accession: freedom of capital movement and independence of the national central bank. Cyprus. Slovenia. The EU needs to enforce a more differentiated approach to fiscal surveillance. 253 . EURO AREA ENLARGEMENT Britain and Denmark have ‘opt-outs’ from EMU negotiated at Maastricht (though Denmark was unlike Britain a long-standing member of the ERM and now ERM2). It was revised in 2005 to allow more ‘temporary’ exceptions. Lithuania. Also. There were some improvements. For states like Greece and Italy with huge debt levels persisting surpluses would be required. Malta. However.Chapter 18 deficits should be lower to achieve the required target. With lower nominal growth rates France and Germany too are accumulating rather than defraying debt. More stress was laid on a ‘pro-cyclical’ Pact.

Chapter 18 Accession states have three strategic options: they can defer euro entry and focus on real convergence.eu.en. DG Economic and Financial Affairs: http://europa. London and New York. Florence.).html – European Commission.98-118. Variation and Convergence. 2003.eu. in B.htm 254 .eu. Discussion Paper”. Kohler-Koch and R. “Economic and Monetary Union in Europe: a Transformation of Governance”. Hungary and Poland).int/emu/en – European Commission’s website of the euro: “The Euro. our currency” http://europa. p. – Kenneth Dyson (ed.htm – Economic and Financial Affairs Council: http://ue. Eising (eds. they can use EMU accession to lock in or anchor a pre-existing framework of domestic discipline (as in the three Baltic States. 1999. Bulgaria and Slovenia). European University Institute. infrastructure development and the welfare state (as seems to be the case in the Czech Republic. Oxford.int/home/html/index. – Kenneth Dyson. Robert Schuman Centre. The Transformation of Governance in the European Union. “Living with the Euro: A Provisional Balance Sheet. European States and the Euro: Europeanisation. 2002.ecb.int/comm/economy_finance/euro/our_currency_en.int/comm/economy_finance/index_en. Bibliography: – Paul De Grauwe.). Relevant official documents and information can be found at the following websites: – European Central Bank: http://www. or they can use it to enforce an absent domestic discipline. Routledge. Oxford University Press.

continues when a country becomes a member of the EU. INTRODUCTION Slovenia joined the EU on the 1st of May 2004. and is reinforced later when the country joins ERM II. the implementation starts already at the pre-accession stage. THE DECISION TO JOIN THE EU IS ALREADY A DECISION TO JOIN THE EMU When a country decides that it wants to become a member of the EU it must be aware that it has also decided for membership in the EMU. As the implementation of EMU acquis is a rather lengthy process. The cases of the United Kingdom and Denmark which have so-called ‘opt-out clauses’ . although a member with derogation.Chapter 19 CHAPTER 19 IMPLEMENTING THE EMU ACQUIS – EXPERIENCES OF SLOVENIA Matej More* 1. the relevant acquis will be first recalled by these main stages. with a current target date of 1st of January 2007. The acquis that a country has to transpose and implement at each stage will be reviewed focusing on Slovenian experiences. which might also be typical to other candidate countries. 2. This paper gives an overview of the implementation of the major parts of EMU acquis as experienced by Slovenia and its plans to complete the implementation process. there is no possible ‘opt-out clause’ from any obligations given to new Member States including obligations derived from the EMU acquis. joined the exchange rate mechanism II (ERM II) on 28 June 2004 and is now progressing towards nominal convergence which involves important legal. like Romania. which is still an ongoing one. That is why Slovenia. The Copenhagen Council stated clearly that membership of the EU requires that “a candidate country has the ability to take on the obligations of membership. Within this context. * Secretary in the Cabinet of the Minister of Finance of the Republic of Slovenia. economic and monetary union”. 255 . which goes in stages. Implementation is fully completed with the changeover to the euro. Slovenia aspires to become a full member of the EMU and adopt the euro as its own currency at the earliest possible time. including adherence to the aims of political.enshrined in the protocols to the EC Treaty . Due to various predominantly economic reasons. At the same time Slovenia also became a member of the European Monetary Union (EMU). Indeed. especially on those. administrative and technical preparations for the changeover from the present national currency. together with Estonia and Lithuania. problems and difficulties.might be misleading as the candidate countries might think that they do not need to join EMU if they do not want to. the Slovenian tolar to the euro.

THE EMU ACQUIS The EMU basically means three things. but it becomes the monetary policy of the whole euro zone pursuing common interests of all Member States. However. Compilation of Community Legislation on Economic and Monetary Union. participate in the creation of a single monetary policy through the ESCB (European System Of Central Banks) and the ECB (European Central Bank) according to their Statute2. The EMU acquis consists mostly of so called ‘primary legal sources’ which are directly 1 When this chapter refers to the EMU and its members. These are two very obvious elements of the EMU. Protocol on the Statute of the European System of Central Banks and of the European Central Bank. the EMU also means something else. 3. of which every Member State of the EU is aware. As they do not have their own currency any more. it is no longer their own monetary and exchange rate policy they could cope with when dealing with specific economic problems of their own country. when it reaches the necessary state of preparedness.e. has no ‘opt-out clause’ from any obligation given to new Member States. The EMU principles are already enshrined in the EC Treaty. and in several Council Regulations and Decisions3. like other countries joining the EU on 1st May 2004. only full membership is considered i. It is a high degree of coordination and convergence of economic policies. In order to have an effective monetary policy it needs to be supported by other economic policies and in particular by fiscal policy which is formally still in the domain of the Member States of the EU. Slovenia assumes the obligation to accept all EMU acquis and ultimately. and in particular fiscal policy. 256 . As a result. they also lose monetary and exchange rate policy as economic policy tools. there are several Commission Recommendations mostly dealing with technical aspects of the introduction of the euro. First. only Member States 2 without derogations and which have already adopted the euro. will adopt the euro. Member States. As a result. Protocol annexed to the Treaty establishing the European Community. 3 European Commission. it means a common currency for all members of the EMU1. However. The other Member States of the EU are always referred to as EMU members ‘with derogations’. Parallel to that. These principles are further elaborated in the Statute of the European System of Central Banks and of the European Central Bank. Member States have to give up their own national currencies and adopt the euro as a common currency. the adoption of the euro is a ‘must’ for new Member States. in Title VII “Economic and Monetary Policy” (articles 98 to 124).e. adherence to the EMU does not only mean giving up its own currency and monetary and exchange rate policy but it also means loosing autonomy in conducting economic policies. July 2004. In addition.Chapter 19 Slovenia. fiscal policy becomes a matter of common concern: according to the EMU acquis it needs to be coordinated among Member States in order to achieve a high level of convergence of economic policies. they lose their monetary sovereignty. Instead. all Member States of the EMU. the monetary policy of those Member States becomes a single monetary policy of the whole euro zone i. however they have the freedom to decide on the appropriate moment when to adopt the euro. In addition to that. That means that with the accession to the EU. of course.

This precondition opened the way to negotiations for EU membership. As for the EMU acquis they already had to implement specific parts. were required to start actively preparing to fulfil EMU obligations already at the preaccession stage. there is a requirement in the area of legal convergence: national legislation needs to be made compatible with Treaty articles 101. On the other hand. and The prohibition of privileged access of the public sector to financial institutions. in order to demonstrate the capacity to take on the EMU acquis. Nevertheless. Candidate countries must first join the EU before they can be eligible for the euro. The prohibition of any direct financing of the public sector. Although liberalisation of capital movements is not a specific part of the EMU acquis. it is an important precondition for the EMU. a precondition for an adoption of the euro. First of all. there was the requirement to complete liberalisation of capital movements according to the Treaty provisions.Chapter 19 applicable and need not to be transposed into national legislation. 4. but much more on coordination of economic policies in order to achieve nominal convergence. This related to the process of legal convergence: Slovenia was required to make its national legislation compatible to the Treaty and the Statute provisions regarding: The independence of the central bank.e. The implementation of the most important parts of the EMU acquis and the subsequent adoption of the euro is supposed to be done by candidate countries after they have joined the EU. Countries which are on the way to join the EU and later to join the EMU are not supposed to implement all the acquis at once in the pre-accession stage. IMPLEMENTATION OF THE EMU ACQUIS IN THE PREACCESSION STAGE As we have already mentioned. In the field of the EMU acquis. the implementation of the EMU acquis is a process in several stages. 257 .108. as it is the requirement for the other chapters of the acquis. Slovenia and the other candidate countries were expected to fully liberalise capital movements already at this early stage. Nevertheless. Slovenia and other countries. In this respect the EMU acquis implementation differs from most of the other chapters of the EU acquis where the first step of implementation of the acquis implies a rather extensive transposition of EU directives into national legislation. the implementation is less focused on legal convergence i. 102. which made part of the last EU enlargement in May 2004. Provisions of these articles need to be transposed into national legislation. transposition of the EU law into national legislation.109 and the Statute of the ESCB. the candidate countries of the last EU enlargement had to carry out economic reforms to become functioning market economies in order to meet the socalled economic criteria and to be able to sustain competitive pressure from the EU market. Treaty provisions that lead to the adoption of the euro apply only to the EU Member States.

1. The EC Treaty requires full and complete removal of all restrictions on capital movements and payments between Member States and between Member States and third countries. without any administrative intervention. On the other hand. had to be duly proved as justified during negotiations in order to be accepted by the EU. which is able to manage risks to which the sector is exposed by capital inflows and outflows is the other major precondition that has to be fulfilled if capital liberalisation is to be accomplished successfully. This. Liberalisation of capital movements is without any doubt a very positive development and can contribute towards better integration of the EU economy in the world economy and to higher growth.once members of the EU . 4.without the fulfilment of basic preconditions . The Asian crisis in the mid 1990’s is one of the examples for that. The most important preconditions are financial and macroeconomic stability of the country in a way that its inflation and interest rates are not substantially higher then in it’s neighbour countries. of course.it might be contra-productive and potentially lead in extreme cases also to financial crisis. countries . Without a full liberalisation of not only current account transactions but also capital account transactions it is not possible to speak about equilibrium exchange rate. Once candidate countries remove all restrictions on capital flows and payments and enter the EU they have to sustain all pressures from the market. neither in respect of capital movements nor in respect of legal convergence. It is also an important element of a functioning market economy.Chapter 19 In the negotiation process candidate countries might have asked for certain transitional arrangements in the form of transitional periods or certain transitional measures for those parts of the acquis that countries were obliged to apply but might be unable to apply. especially banking sector. In addition to that. Freedom of capital movements is an absolute freedom that goes beyond the principle of non-discrimination. Slovenia in this respect did not ask for any transitional arrangements. This is why the liberalisation of capital movements had to be done already before accession to the EU. If not well prepared and achieved too early . The principles of capital account liberalisation are enshrined in EC Treaty provisions (articles 56 to 60). The EU opted for unilateral liberalisation of capital movements towards the whole world. As such it is a basic precondition for the adoption of the euro. In such a situation a country does not necessarily know at which stage its national currency values should be converted in euro. Slovenia was occasionally criticised 258 . a robust financial sector. Possible restrictions on capital account affect the exchange rate. Slovenia was very aware of the risks of too quick liberalisation of capital movements. That is why it opted for a very gradual approach. Liberalisation of Capital Movements Liberalisation of capital movements is one of the four basic freedoms and a corner stone of a single market.are no longer allowed to use safeguard measures in the case capital movements threaten the exchange rate and monetary stability (so called ‘monetary clause’).

The Bank of Slovenia was preventing too high appreciation by intervention on the foreign exchange market and with a sterilisation of monetary effects of its foreign exchange intervention. Comparing the association agreement to the ones of other countries. Only an independent central bank can effectively pursue a policy of stable prices as the major goal of their monetary policy and thus contribute to the first Community objective of “sustainable non inflationary growth” (article 2 of EC Treaty). As a result. it had also provisions regarding liberalisation of capital movements requiring Slovenia also to fully remove restrictions on real estate transactions – long time before becoming a full member of the EU. 4. especially the banking sector. The Association Agreement with the EU. interest rates also remained on a high level for long time. Slovenia removed last restrictions regarding very short-term capital flows in the mid-2003. This gave a modest incentive to structurally adjust and improve its competitiveness.2. there is an impression that the Slovenian Association Agreement with the EU was to some extent stricter. Looking at the Treaty and the Statute. As for the candidate countries they were already in the pre-accession stage required to adopt the principles of independence of their central banks. The Independence of the Central Bank Article 108 of the EC treaty requires each Member State to ensure at latest at the date of establishment of the ESCB independence of their central banks. too slow liberalisation also meant that the domestic financial sector. the supply of foreign currency constantly outweighed demand and the Slovenian tolar was appreciating in real terms. This would have been beneficial for the Slovene economy. On two occasions the Bank of Slovenia also administratively intervened by curbing foreign portfolio investment (introducing custody accounts on non-resident investment in domestic securities) and domestic borrowing abroad (introducing non-interest bearing deposit on resident borrowing abroad). Nevertheless. approximately one year before its entry into the EU. and the Statute of the ESCB and the ECB. With capital account of balance of payments in surplus and current account close to balance. The Slovenian approach was focusing on macroeconomic stabilisation and building up of prudential capacity of the financial sector. negotiated in 1995 and ratified and entered in force in the beginning of 1999. the slow pace of liberalisation seems to help keeping main macroeconomic aggregates in balance and completing liberalisation in an orderly way without any major problems or even currency crisis. It required immediate liberalisation of direct investment and credit operations and gave a four years transitional period for portfolio investment and real estate investment. Faster opening up would have brought them earlier down to European levels. Namely.Chapter 19 by the EU of being too slow. remained too much and for a too long period protected from outside competition. the concept of independence is a rather elaborated 259 . This implies the obligation to make their legislation compatible with EMU acquis comprised in the Treaty. In addition to that. However. During the liberalisation of capital flows Slovenia was facing constant pressure on exchange rate appreciation. set pace of the liberalisation steps.

the Slovene legislation was not in line with the EMU concept of personal independence. These two goals. were clearly not in line with the EMU concept of functional independence. which might be on certain occasions even conflicting objectives. Slovenia adopted a new Law on the Bank of Slovenia in 2002 in accordance with the EMU acquis in terms of functional. Financial independence. following the German model of the Bundesbank. On the basis of this constitutional provision the first Law on the Bank of Slovenia was adopted in 1992. The Slovene legislation from 1992 sets two major goals for the Bank of Slovenia: stability of prices and liquidity in domestic and external payments. in its article 152. The Slovene Constitution. Looking more deeply it discovered that the legislation is incompatible in more or less all criteria for independence as stipulated by the EMU acquis. a central bank shall not seek or take instruction from external bodies (be it a Community institution or body. Although. Institutional independence. The only admitted exemption is part-time employment of board members in University or research institutes. As regards the last concept. is granting independence to the Bank of Slovenia stipulating that it is independent in carrying out its tasks and reports only to the Parliament. Personal independence. The EMU acquis is stipulating four criteria for the independence of the central banks of the Member States: Functional independence. they should have a mandate that is long enough or last at least five years. annul or defer the central bank’s decisions. This is clearly not in line with the EMU acquis as a right to ex ante control of the budget may create situations where the financial independence is compromised. In carrying out tasks regarding monetary policy. where potential conflicts of interests are excluded. The governor and members of the board should be completely independent. At the same time nobody has the right to approve. This basically means that a central bank should have only one major objective of monetary policy: stability of prices. A central bank should be in the position to avail itself of the appropriate financial means to ensure that its tasks can be properly fulfilled. When starting negotiating with the EU. 260 . the national government or any other body). suspend.Chapter 19 concept. it turned out that the independence of the Bank of Slovenia was not fully in line with the EMU acquis. The governor should not be relieved from the office unless he/she no longer fulfils conditions necessary for the performance of his/her duties or has been found guilty of serious misconduct. Slovenia opted for the ‘professionalisation’ of the board members. In this respect. Slovenia granted independence to the Bank of Slovenia already in its Constitution. Slovenia was quite confident of having legislation on the central bank in line with the EMU acquis. In the Slovene legislation of 1992 the Parliament has been given the power to approve the budget of the Bank of Slovenia. financial and personal independence. These decisions are final.

this is also an important element to ensure the freedom of capital movements and prevent market distortions. there was a provision stipulating the possibility of a short-term overdraft facility for the government with the central bank. as in the previous case. except for prudential reasons. investment funds and other relevant acts require these financial institutions to invest a certain percentage in bonds issued by the Slovene government. The Slovene legislation on insurance companies. It was limited to 5% of the annual volume of the budget and intended to be used only within the year to overcome potential liquidity problems of the budget. It was only a legal possibility and had actually never been used by the Slovene government. Namely. This has been done for two reasons: To support government bonds. At the end of the year the credit would have to be repaid. 4. Prohibition of Privileged Access of the Public Sector to Financial Institutions The next important provision of the EMU acquis is enshrined in article 102 of the EC Treaty and in Regulation 3604/93.4. Monetary policy can in no way be a source of financing the public sector.). It concerns the prohibition of the privileged access of the public sector to financial institutions. This Treaty provision is a very important element of fiscal discipline. The Law on the Bank of Slovenia of 1992 was not compliant to this provision. This provision is complementary to the prohibition of direct central bank financing and concerns all financial institutions (banks. Nevertheless. The idea behind these provisions is that the public sector must be subject to market discipline and must be put on the same level as the private sector as regards borrowing of financial means. etc. This actually represented privileged access of the government to financial institutions. The first Treaty provision in question relates to the prohibition of direct financing of the public sector by a central bank (article 101 of TEC). 261 . Governmental bonds were considered as safer then other instruments on the market. Neither government nor local communities or any other bodies governed by public law should have overdraft facilities or credit facilities with a central bank. investment funds. The relevant provisions have been abolished by changes in the legislation. insurance. Also a central bank is not allowed to directly purchase debt instruments issued by the public sector.Chapter 19 4. Prohibition of Direct Financing of the Public Sector The Law on the Bank of Slovenia of 2002 transposed two other important Treaty provisions regarding access of the public sector to financial means. it represented inconsistency with the Treaty provision and was removed with the new Law on the Bank of Slovenia of 2002. The objective is. In addition. especially when outward investment of insurance companies and investment funds were still not legally possible. It also supports the independence of a central bank. to put the public sector under market discipline.3.

The status of an EMU member with derogation is stipulated in article 123(3) of the EC Treaty and Chapter IX of the Statute of the ESCB and the ECB. It should avoid excessive fluctuations of its exchange rate. The actual exchange rate can vary around the central parity within the agreed standard fluctuation band. the European Central Bank. Basically it consists of the exclusion of the Member State and its central bank from rights and obligations within the ESCB. Slovenia has retained powers in the field of monetary policy in conformity with its Law on the Bank of Slovenia. monetary policy can no longer cope with shocks to the economy. The shaping of economic policies as a matter of common concern. 262 .Chapter 19 5. which the Bank of Slovenia and the Slovene government envisage for 2007. Slovenia started with the preparation to enter the ERM II immediately after its accession to the EU. This period of two years is a test for the ability of accommodative responses of fiscal. At the same time. the period of counting will start again. The central parity of the Slovene tolar against the euro was determined by negotiations and is based on common views about long-term stability of the Slovene tolar by the Bank of Slovenia. and the ministers and central bank governors of the Member States participating in ERM II. If devaluation occurs. Participation in the ERM II is a precondition for the adoption of the euro.64 Slovene tolars for 1 euro.1. the Bank of Slovenia has become an integral part of the ESCB and the governor of the Bank of Slovenia a member of the General Council of the ESCB without voting rights. the ministers of finance of the Euro system Member States. income and structural policies. Namely. In this period there should be no devaluation. This is also a period of preparation for eventual participation in the Exchange Rate Mechanism II (ERM II). The exchange rate needs to be sustainable in the period of at least two years. 5. It should be only focused on price stability. whether it is in equilibrium. As a result. Among others a Member State ‘with derogation’ is also not subject to excessive budget deficit procedures under the EC Treaty. The exchange rate is supposed to be a rate at which the conversion towards the euro will be done at the end of the period. the Slovene government. and The gradual progress towards nominal convergence. MEMBERS OF THE EMU WITH DEROGATION While becoming a Member State of the EU on May 1st 2004 Slovenia also became a member of the EMU ‘with derogation’. which is +/.15%. After fully implementing all EMU acquis at the pre-accession stage Slovenia has now to focus on the following aspects of the EMU acquis: The exchange rate policy as a matter of common concern. So far. The central parity has been set at 239. This is a test for the exchange rate. Exchange Rate Policy and Exchange Rate Mechanism II (ERM II) A Member State with derogation has to consider its exchange rate policy as a matter of common concern. On 28 June 2004 Slovenia entered the ERM II. there have been no problems in Slovenia with exchange rate stability within ERM II and the exchange rate seems to be accepted by market players.

As Slovenia has joined ERM II at the end of June 2004. 263 . Economic Policies as a Matter of a Common Concern EU Member States have to consider their economic policies as a matter of a common concern. Slovenia is thus no longer completely autonomous in conducting its economic policies. Economic policies have to be coordinated on the level of EU in the framework of ECOFIN. it is now somewhere half way of the two-year period for which stability of exchange rate has to be demonstrated. Slovenia is already meeting the public finance and longterm interest rate criteria. Only those Member States which fully meet convergence criteria can adopt the euro. However. The inflation rate is still beyond the convergence criteria and it is expected to be also the biggest problem in meeting the convergence criteria. sound public finance and balance of payments.3. They have to be put in line with broad guidelines issued by the EU Council in order to contribute to EU objectives of which the most important are stable prices. Nominal Convergence Criteria (“Maastricht Criteria”) To fulfil the nominal convergence criteria is a condition for the adoption of the euro. 4 European Commission. The nominal convergence criteria are the following: The following table is showing Slovenia’s compliance with the nominal convergence criteria as on April 1st 2005. July 2004. fiscal policy is given most importance. In particular. they are supposed to gradually progress towards the nominal convergence criteria (so called “Maastricht criteria”) and consider them as medium term objective. Member States should achieve or aim towards budget consolidation in line with the principles and procedures stipulated by the Stability and Growth Pact4.Chapter 19 5. 5. Nominal convergence criteria are not a requirement for EMU Member States ‘with derogation’. The economic policies of the Member States are subject to regular multilateral surveillance. Compilation of Community Legislation on Economic and Monetary Union.2.

THE DATE FIXED FOR THE ADOPTION OF THE EURO The stage of membership in the EMU with derogation is also a period in which a country has to think about the date on which it intends to adopt the euro. with 2 million inhabitants and accounts for only 0. For countries with a still weak real convergence in terms of a big development gap measured in GDP per capita. Slovenia is already very close to meet nominal convergence whereas a relatively high degree of real convergence has already been achieved. real convergence. In the following chart we can see that the Slovene GDP per 264 . The Slovene economy is relatively strong and robust with a structure very similar to that of the EU economy. On the other hand. Slovenia is a small economy. Joining the common currency area is more beneficial for smaller countries because monetary policy is more effective in larger currency areas. The present decision is to adopt the euro as soon as possible with a target date of January 1st 2007. balance of payment adjustment and sustainability of competitiveness of their economies. transition of the Slovene economy to a modern market economy is to a sufficient degree completed. Firstly. The current level of Slovene economic development is comparable to the level of development of the euro zone countries. and a very different economic structure it may be better to postpone the time of the adoption of the euro until a higher level of real convergence is achieved. Formally the country has to comply with nominal convergence criteria.3% of total GDP of Member States of the EMU.Chapter 19 Meeting nominal convergence criteria in Slovenia (April 2005): 6. The currency area of the Slovene tolar is therefore very small. With the adoption of the euro they give up their own monetary and exchange rate policies as very useful tools to influence economic activity. However. although not a formal requirement from the point of view of the EMU acquis. has also to be seriously considered by the candidate country. Secondly. Slovenia is among the new Member States that have opted for an early adoption of the euro. Given the currently relatively favourable macroeconomic situation in Slovenia and in its environment it is very likely that nominal convergence will be achieved in the next two years. factors determining real convergence are not against the early adoption of the euro. Besides. Several reasons are in favour of the early adoption of the euro.

The chart bellow shows the percentage of exports and imports combined in GDP. The chart below shows that the structure of value added production by economic activity in Slovenia does not differ too much from the one in the euro zone either. 265 .problematic in a monetary union where there is no room for ‘local’ monetary policy measures . Slovenia is also a very open economy and already well integrated into the EU economy.Chapter 19 capita in Purchasing Power Parity (PPP) in 2001 was on the level of 69 of the average of the euro zone countries. Because the structure of Slovenia’s economy is similar to that of countries within the euro zone. In GDP per capita PPP Slovenia already surpasses some present EMU members (Greece) and is very close behind Portugal and Spain. asymmetric shocks . Slovenia is among countries with the highest share of exports and imports in GDP. The Slovenian economy does not show similarities with the EU average only in terms of GDP and PPP.are less probable. which is an additional argument that speaks in favour of the early adoption of the euro.

Although Slovenia is still in the ERM II and the target date of adoption of euro is fixed for 2007. Consequently. Slovenia will have to meet fully the Maastricht criteria. Convergence Report 2004: http://www. Ljubljana.Chapter 19 7. Slovenia will have no transition period for the introduction of the euro currency. Programme for ERM II Entry and Adoption of the Euro. while coins will still be issued by Slovenia. a decision for abolishment of derogation and adoption of the euro will be made. July 2004.int/home/html/index. the Bank of Slovenia looses monetary power and banknotes are issued by the ECB. – European Central Bank.pdf . Vlada Republike Slovenije. After this period. – Banka Slovenije.ecb. PREPARATIONS FOR CHANGEOVER TO EURO The final stage of the implementation of the EMU acquis is the changeover to the euro currency. if the conversion rate is irrevocably fixed.si/html/publikacije/evropa/ERM2%20_BS_Vlada_200311.html 266 . Compilation of Community Legislation on Economic and Monetary Union. Joint Programme of the Slovenian Government and the Bank of Slovenia. The assessment of the criteria will be done after at least two years in the ERM II with a stable exchange rate.bsi. The euro as a book currency and notes and coins will be introduced simultaneously. There will be a very short period of only 7 days of dual circulation of the Slovene tolar and the euro. If the assessment is positive.en. November 2003: http://www. Bibliography: – European Commission. preparations for the changeover to the euro currency are already in full swing. the Slovene tolar notes and coins will be withdrawn from circulation.

SECTION 7 EU SOCIAL AND EMPLOYMENT POLICY .

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research and higher education policies were. are and will be rather weak. 2000. “The Open Method as a New Mode of Governance: The Case of Soft Economic Policy Co-ordination”. November 2001. The project of Monetary Union (1992) has been strongly influenced by the rigorous monetary discipline inspired by Germany1. Faculty of Political Science. It started with negative integration. pp. Oxford. HIGHER EDUCATION AND RESEARCH POLICY Erol Kulahci* 1. one can be struck by the strengthening of the general trend of socio-economic liberalisation which prevails in the project of European construction. p. Oxford University Press. 1 * Lecturer. Negotiating Economic and Monetary Union. Therefore. EMPLOYMENT POLICY. the Single European Act (1986) has specially favoured the liberalisation of goods and capital. i. “The treaty on European Union and its revision. but it is important to restate that they are not the only policy domain shaping socio-economic and socio-political policies. p. 2 Gerda Falkner. the recent result of the debate on the EU budget 2007-2013 suggests that some well-off countries are not ready to contribute significantly to the EU distribution mechanisms. Institute of European Studies. “EMU as Europeanisation: Convergence.Chapter 20 CHAPTER 20 EU SOCIAL POLICY. Routledge. Diversity and Contingency”. progresses on European social. Accordingly. Survival of the European Welfare State. 1999. 269 .732. Kenneth Dyson. Next.e.645-666.). The Growth and Stability Pact (1997) has been designed to give further guarantee to the monetary discipline. Other relevant domains include research and education policies. European social and employment policies are key policy areas. Free University of Brussels. Journal of Common Market Studies. Kenneth Dyson and Kevin Featherstone.194. it is not surprising to notice a general asymmetry between the economic-financial liberalisation and the socio-economic regulation2. In addition. employment. Stein Kuhnle (ed. Dermot Hodson and Imelda Maher. Vol. Belgium. November 2000.39. Journal of Common Market Studies. Sea change or empty shell for European social policies?”. the progressive removal of internal trade barriers between Member States. London and New York. INTRODUCTION When reviewing the development of socio-economic policies from the Treaty of Rome (1957) to the Mid-term review of the Lisbon Strategy in 2005. N°4.

Beyond the Market. The following disposals are adopted: the freedom of movement of workers. the Treaty of Maastricht. except the United Kingdom. However. state autonomy and national social policy”. The European Union. The legislative breakthrough starts with the Treaty of Rome (1957).5. 1998. ”to have recourse to the 3 David Hine. This Protocol was signed by the twelve Member States at the time and annexed to the Treaty on European Union. Two important legislative disposals have been adopted in the social policy field: Harmonisation related to health and safety of workers: the SEA allowed qualified majority voting (QMV). The Protocol authorised the then 11 Member States. the provisions on equal pay for both sexes. rules relating to working time. Corporatist policy-making procedures: the creation of a process of bargaining between management and labour at the European level through the social dialogue. This distribution occurred in five successive steps: the Treaty of Rome. 270 . the Treaty of Amsterdam and the Treaty of Nice. noting that eleven Member States (all except the United Kingdom) wished to continue to make significant progress in this field. “During the 1960s and the 1970s. Routledge. there are measures related indirectly to the Internal Market: labour law standards for young or pregnant workers. The Treaty of Maastricht (Treaty on European Union) in 1992 had taken Social Policy one step forward with the adoption of the Protocol on Social Policy. For instance. the Single European Act. History This part will analyse the various characteristics of the European social policy by focussing on the historical distribution of competences between the EU and the Member States. SOCIAL POLICY 2. One has to wait almost thirty years to witness a second breakthrough with the Single European Act (SEA) in 1986. London and New York. This agreement encompasses an Action Programme on the implementation of the Social Charter. Three years later (1989). the Charter of Fundamental Social Rights for Workers is adopted following the proposal of the European Commission and the agreement between the Heads of state and government of the twelve Member States of the EC at the time. “Introduction. It does not prevent any Member States from maintaining or introducing more stringent measures for the protection of working conditions otherwise compatible with the Treaty. p. relatively little occurred to change this picture”3.1. A Treaty reform seemed indispensable to the overwhelming majority of Council delegations by the early 1990s. the application of the measures from the Action Programme necessitated a major change in the EC’s social policy rules and practice. the ‘existing equivalence between paid holiday schemes’ and the European Social Fund: to provide financing for training and relocation program for displaced workers (see next section). The EU and national social policy. David Hine and Hussein Kassim. by means of an Agreement on Social Policy.Chapter 20 2. rules on written employment contracts for all employees.

The Lisbon strategy proposes two formal axes: First.189-190. 2000. However. Left to Court and Markets?”. It prepares the report of the Spring European Council and presents indicators for benchmarking. In 1997. The absence of delineation from other topics where management and labour should indeed negotiate. “Social Policy. 5 Susana Borras and Kerstin Jacobsson. 4 Stephan Leibfried and Paul Pierson. employment and social cohesion. the support to the creation and development of firms (in particular SMEs). vol. the European Council adopted the Lisbon Strategy (2000)5.Chapter 20 institutions. European Research and Innovation Area. p. in Helen Wallace and William Wallace. 271 . The de facto exclusion of the EP. Oxford. the Treaty of Maastricht and the Protocol on Social Policy achieved an important procedural step forward and an expansion of competences which led to a series of additional directives”4. it intends to prepare the transition towards a “knowledge-based economy” around topics such as Information Society. On the surface. Policy-Making in the European Union.11. Oxford University Press. three topics are central: economic reform. In 2000. In institutional terms. procedures and mechanisms of the Treaty for the purposes of taking among themselves and applying as far as they are concerned the acts and decisions required for giving effect to the abovementioned Agreement”. the problematic aspects of the Protocol on Social Policy remained such as: The explicit exclusion from Community action of some major social policy issues. April 2004. The Treaty of Amsterdam (signed on 2 October 1997 and entered into force on 1 May 1999) restored unity and coherence to Social Policy by incorporating into the EC Treaty the Agreement referred to above. the new UK Labour government joined the Protocol on Social Policy. pp.273. The European Commission plays a considerable role. The “European Social Model” constitutes the second formal axis and is organised around four sub-topics: Education and life-long learning. the development of efficient financial market and the coordination of macroeconomic policies. the deepening of economic reforms to realise the internal market. no. the spring European Councils are institutionalised and deal specifically with socio-economic policies. more and better jobs as well as an active employment policy. As a result. The UK was granted an ‘opt-out’ from the Social Policy measures agreed by the rest of the Member States. 2. the modernisation of social protection and the support to social integration. “The open method of co-ordination and new governance patterns in the EU”. Journal of European Public Policy.

272 . the Treaty of Nice incorporates within the Treaty the Social Protection Committee. can make QMV applicable to those areas of Social Policy. The Commission reports annually on the progress in its Scoreboards. Modernisation of social protection systems. In addition. Social security and the social protection of workers. Protection of workers where their employment contract is terminated.2. It provides the roadmap for employment and social policy. be used for social security. there is to be mentioned the activity of the main actors on interest mobilisation and representation at the European level. Representation and collective defence of the interests of workers and employers.Chapter 20 In order to guide the Lisbon Strategy. The Treaty of Nice maintains the status quo. 2. In parallel. which are currently still subject to the rule of unanimity. the Commission drafted the Social Policy Agenda (2000-2005). the Council. Working conditions. dialogue between management and labour. However. This ‘bridge’ cannot. Equality between men and women with regard to labour market opportunities and treatment at work. however. In December 2000. Conditions of employment for third-country nationals legally residing in Community territory. translating the policy objectives of the Lisbon strategy for economic and social renewal into concrete measures. Consultation and information of workers. Combating of social exclusion. the development of human resources and the combating of exclusion. UNICE – Union of Industrial and Employers’ Confederations of Europe. which had been established by the Council pursuant to the conclusions of the Lisbon European Council. Integration of persons excluded from the labour market. Institutions and actors It is expected that the Community shall support and complement the activities of the Member States in the following fields: Working environment to protect workers’ health and safety. the Nice European Council endorsed six main social policy objectives: the promotion of employment. This activity is however still weakly organised: ETUC – European Trade Union Confederation. the improvement of living and working conditions. proper social protection. acting in unanimity.

The EU would like to focus on the modernisation of labour markets and social protection systems. EMPLOYMENT POLICY 3. education and counselling in the context of a lifelong learning policy. to support integration into the labour market of young people and persons returning to work after a period of absence. History In terms of the historical development of employment policy at the European level. The improvement of vocational training.3. the European Commission fixed the objective of diminishing unemployment to 10% until 2000. to facilitate the reintegration of the long-term unemployed. etc). deregulating the labour market and improving competitiveness. innovative and adaptable forms of work organisation.Chapter 20 UEAPME – European Association of Craft Small and Medium-sized Enterprises. the European Social Fund (ESF) is the first redistributive instrument of the Community. well-trained and flexible workforce. access to new job opportunities. CEEP – European Centre of Enterprises with Public Participation & of Enterprises of General Economic Interest.1. 2. In its White Book on Growth. Recent Evolution The Social Policy Agenda (SPA) for 2006-2010 presents the two following objectives: providing jobs and equal opportunities for all and ensuring that the benefits of the EU’s growth and jobs drive reach everyone in society. to avoid long-term unemployment. the EU started in the early nineties to consider seriously the problem of unemployment. technological advances and changing population patterns. 273 . The scope of the ESF encompasses five key areas for helping and improving the employment conditions across the Community: The development of active labour market policies to combat and prevent unemployment. In parallel to the ESF. with particular attention to persons at risk of social exclusion. the SPA for 2006-2010 is intended to help people take hold of the opportunities created by international competition. and entrepreneurship. setting up businesses. The improvement of access and active participation of women in the labour market (career prospects. It suggested considering instruments such as: increasing investment. The promotion of a skilled. The promotion of equal opportunities for all in terms of access to the labour market. Competitiveness and Employment (1993). While protecting the most vulnerable in society. 3.

It was decided that the Member States and the EC were to elaborate a coordinated common strategy for employment. At the same time the European Employment Strategy (EES) has been created. Strengthening the policies for equal opportunities. Raising the average employment rate of people aged 55-64 to 50% (currently 40%). Developing entrepreneurship. The Luxembourg European Council intended to give substance to this common strategy (November 1997) and thus adopted the four broad guidelines for employment: Improving employability. which has become the working method in the area of Social and Employment Policies. elderly people and women. The Luxembourg summit introduced the ‘Open Method of Coordination’ (OMC). long term unemployed. Encouraging adaptability in businesses and their employees.Chapter 20 In Essen (1994). Reinforce the efficiency of labour market policies. “Recommendations” for specific Member States can be issued by the Council of Ministers. The EES is based on the following four-step process: “Employment Guidelines” are proposed by the European Commission and adopted by the Council of Ministers which must be consistent with the broad guidelines on economic policy. With the Lisbon strategy. 274 . Improve measures in favour of young people. Increasing the number of women in employment to over 60% (currently 52%). During the 1996-1997 Inter-Governmental Conference the Heads of states and government agreed to include a Chapter on “Employment“ in the Treaty of Amsterdam (1997). the Heads of State and Government agreed on three objectives: Raising the average employment rate to 70% (currently 61%). the European Council concluded that it is important to: Invest in professional training. “National Action Plans” have to be written and presented by each Member States. Diminish indirect wage costs. A “Joint Employment Report” is presented by the European Commission and the Council.

The ‘Open Method of Coordination’ applies for this policy area. increasing the adaptability of workers and enterprises and the flexibility of labour markets as well as investing more in human capital through better education and skills.3. Institutions and actors Article 125 recommends that the “Member States and the Community shall. It stressed that three sets of actions are important in order to deliver growth and jobs: “Making Europe a more attractive place to invest and work” by extending and deepening the single market. The report criticised the Lisbon strategy arguing that there were too many objectives to be tackled and that it would be impossible to reach these targets by 2010. The MA is the body designated by the Member States to manage the Structural Funds programmes. 3. 275 . by increasing and improving investment in Research and Development. The MC plays a role of supervision and is set up by the Member States and the MA. facilitating innovation. “Knowledge and Innovation for Growth”. Recent Evolution When the Commission was preparing its Communication to the Spring European Council in 2005. The MC also assesses and approves the annual and final implementation reports on the programmes before they are sent to the Commission. “Creating more and better jobs” by attracting more people into employment and modernise social protection systems.Chapter 20 3. the Kok Report proposed the reduction of number of objectives and focused on ‘employability’. The Treaty of Nice maintains the status quo set up by the Treaty of Amsterdam. regional or local level or even the Member State itself. work towards developing a coordinated strategy for employment and particularly for promoting a skilled. there are at least four main actors of the decision-making process: the Commission. ensuring open and competitive markets inside and outside Europe. the Managing authority (MA). Chapter II). The Commission submitted its Communication to the European Council taking into account the suggestions from this report. This body can be a public or private authority at national. the Member States. It oversees the implementation of the programmes on the ground and it checks if the targets are reached. Accordingly. the Wim Kok Report was published. and the Monitoring Committee (MC). trained and adaptable workforce and labour markets responsive to economic change”. The MA and the paying authority can be the same if the Member State decides so. in accordance with this title.2. When examining the European Social Fund (ESF) (Title XI. the uptake of ICT and the sustainable use of resources as well as contributing to a strong industrial base. improving European and national regulations as well as expanding and improving European infrastructure.

In this context. Promotion of cooperation in the field of Community research. universities and public laboratories.1. 7 Ibid. with the 6th Framework Programme (2002-2006).40. Inertia and European Union Research Policy”. life sciences and the environment”7. Consequently. technological development and demonstration with third countries and international organisations. mainly in the energy sector. research centres and universities. and broadened main topic areas to include information technology. the Commissioner Philippe Busquin (1999-2004) launched the idea of a European Research Area (ERA) in order not only to coordinate.8 per cent in the United States and 2.4-5. History The European Unions Research Policy was designed in order to compete more effectively internationally and especially to keep the pace with the American advances in the field of science and technology6. 2002. Vol. COM (2000) 6. Towards a European Research Area. 18 January 2000. The Commissioner underlined that “the average research effort in the Union was only 1. the Community shall carry out the four following activities: Implementation of research. 8 Commission of the European Communities. p. 276 . Institutions and Actors Research Policy is an area where the EU is supposed to complement the activities carried out in the Member States.8 per cent of the EU’s GDP.Chapter 20 4. by promoting cooperation with and between undertakings. p. Thus. the Commission was allowed to manage an important budget: Focusing and integrating Community research 13 345 Mil Structuring the European Research Area 2 605 Mil Strengthening the foundations of the European Research Area 320 Mil TOTAL 16 270 Mil 4. as against to 2. 6 Thomas Banchoff. N°1. Journal of Common Market Studies. but also to integrate Research Policy at EU level. RESEARCH POLICY 4. In accordance. “Institutions.1. were combined in 1984 into a five-year framework programme. pp.2. various Community research activities. Subsequent programmes increased the funding available to transnational networks of researchers in firms..2. technological development and demonstration programmes.9 per cent in Japan”8.

upon proposal from the Commission. This was an experimental program. 7 536 Mil 1 824 Mil 73 215 Mil 5. London. The 1976 Joint Study Programmes scheme of the EU aimed at the promotion of joint programmes of study and research between institutions in several Member States10. 2002. The political context that limited the role of the EC in areas that the Member States saw as their own competency. after co-deciding with the EP.Chapter 20 Dissemination and optimisation of the results of activities in Community research. Recent Evolution The ambition of the European Commission is even more important for the period 20072013. p. the 7th Framework Programme. History Until the 1970s. HIGHER EDUCATION POLICY 5. Comparative and Conceptual Analysis. 166 and 167 TEC). the European Community was reluctant to give priority to actions in the field of education. Internationalization of Higher Education in the United States of America and Europe. 4. 10 Ibid. 277 .1.51. this scheme was replaced by the European 9 Hans de Wit. Four reasons are identified for this lack of development of EU competences in this policy field9: The emphasis on economic integration. In 1987. p.46. The Treaty of Nice maintains the status quo (Title XVIII). the European Commissioner Janez Potocnik presented the following proposal to the European Parliament and the Council: Cooperation Ideas People Capacities JRC (Non-Nuclear. The differences in national educational systems and the national orientation of these systems. Stimulation of the training and mobility of researchers in the Community. Act. the Council adopts legislation by QMV (Art.. In terms of decision-making and institutional actors. technological development and demonstration. A legal dispute on the limitations of the EC for actions in the field of education. Indeed. Starting with the 1970s new progresses appeared in the area of education and especially higher education. Greenwood Press. A Historcial. The most important achievement was the EU Mobility Programmes.3.) TOTAL 44 735 Mil 11 942 Mil 7 718 Mil.

including in the audiovisual sector. the recognition of diplomas and the development of the European Higher Education Area. In addition. master and doctorate. in the area of education and youth. Artistic and literary creation. Non-commercial cultural exchanges .2. important issues emerged such as the European Credit Transfer System (ECTS). Vocational training: Leonardo da Vinci. on a proposal from the Commission. The Maastricht Treaty (1992) included education for the first time in the Treaty. 5. Institutions And Actors In the field of education. 150. 5. Youth: Youth for Europe. the EU supports and supplements Member States in the following areas: Improvement of the knowledge and dissemination of the culture and history of the European peoples. Under the limits of its competence. evaluation procedures of school and university education or cooperation with third countries. Recent Evolution The recent main developments are related to the European Higher Education Area (EHEA). the Council can adopt legislative acts (directives or regulations) by QMV with the European Parliament’s co-decision in the areas of education. This largely intergovernmental process was built around the Bologna Declaration having as purpose to make “Higher Education systems” converge towards a consistent system based on three cycles: degree/bachelor. The Community launched as well a process of exchange of information and experiences on issues related to the education systems of the Member States: the Eurydice information network for sharing information on subjects such as lifelong learning. According to the present articles (149. Thus. the Council can adopt non-binding recommendations by QMV. Conservation and safeguarding of cultural heritage of European significance. The Treaty of Nice maintains the Amsterdam status quo. 251). youth and vocational training.3. the idea of an EHEA was developed outside the EU framework. Given the impossibility to advance in this policy field by means of the classical ‘Community method’. the Community has initiated several programmes such as: Education: Socrates and Tempus. European Voluntary Service.Chapter 20 Action Scheme for the Mobility of University Students (ERASMUS). 278 .

the “Quality Assurance and Recognition in a Global Perspective” as well as institutional autonomy and governance of universities. Enhancement of competitiveness in other parts of the world. Bibliography: – Kenneth Dyson and Kevin Featherstone. Negotiating Economic and Monetary Union. lifelong learning. pp.Chapter 20 The objective is to develop an EHEA by 2010. In addition. Journal of Common Market Studies. They tried to agree on topics such as doctoral studies and the synergy between Higher Education and Research. Diversity and Contingency”. “EMU as Europeanisation: Convergence. Oxford University Press. the Commission asked for the fulfilment of three conditions for the modernisation of universities: The need for higher and more efficient investments by opening up to private financing. Start to introduce a quality-assurance system. It stressed the necessity for 2005 to review progresses regarding quality assurance. ministers responsible for higher education in forty European countries met at Bergen. 1999. two-cycle-systems as well as the recognition of degrees and periods of students. the Berlin objectives (2003) stressed the importance of creating links between the EHEA and the European Research Area. November 2000. – Gerda Falkner. The Prague conference (2001) highlighted three objectives: Lifelong learning. Sea change or 279 . Issue a diploma supplement in a major language to all their graduates free of charge without the need of a request. Kenneth Dyson. the provisions related to education and vocational training remain mostly unchanged. The need for autonomy as well as better system and institutional management. The imperative of quality and excellence in order to push universities to seek world-class excellence. Two years later.645-666. three short-term targets for May 2005 were identified: Adopt a two-cycle system. In May 2005. Involvement of higher education systems and students in the process. In the Treaty establishing a Constitution for Europe. In this context. “The treaty on European Union and its revision. Oxford.

Internationalization of Higher Education in the United States of America and Europe.11. Commission of the European Communities.int/committees/empl_home.int/comm/education/index_en. The EU and national social policy.eu.40.5.189-190.cfm – Education and Training: http://europa.273. Development. 2002.194. London.html – Research. “The Open Method as a New Mode of Governance: The Case of Soft Economic Policy Co-ordination”. A Historcial. p. David Hine and Hussein Kassim. in Helen Wallace and William Wallace.46. Left to Court and Markets?”. COM (2000) 6. Comparative and Conceptual Analysis. N°1.int/comm/research/index_en.eu. – David Hine. Vol. 1998.html Parliamentary Committees in the European Parliament: – Committee on Employment and Social Affairs: http://www. 2. Policy-Making in the European Union. state autonomy and national social policy”. 2000.732. no. “The open method of co-ordination and new governance patterns in the EU”. Stein Kuhnle (ed. April 2004. November 2001. p. Routledge. – Susana Borras and Kerstin Jacobsson. pp. The European Union. London and New York.eu. “Institutions. Oxford. 2000. Routledge. Beyond the Market. vol. Relevant official documents and information can be found at the following websites: The Directorates-General of the European Commission: – Employment. Journal of Common Market Studies. p. 2002. – Stephan Leibfried and Paul Pierson. Greenwood Press. pp. Oxford University Press. 18 January 2000. “Social Policy.). Vol. Social Affairs and Equal Opportunities: http://europa. Hans de Wit. Technology and Innovation: http://europa. p. Towards a European Research Area. – Thomas Banchoff. “Introduction. N°4.europarl. p.1.4-5. Journal of Common Market Studies. Survival of the European Welfare State. Dermot Hodson and Imelda Maher.htm 280 .eu. London and New York.39.int/comm/employment_social/index_en. Journal of European Public Policy. p. Inertia and European Union Research Policy”.Chapter 20 empty shell for European social policies?”.

unice.asp?id=416&lang=en&mode=g Non-Governmental Organisations: – European Trade Union Confederation: http://www.eu.org/ Other links: – The European Agency for Safety and Health at Work: http://agency.eu.com/EN/index.ceep.eu.europarl.int/ – European training foundation: http://www.etuc.eu.shtml European Centre of Enterprises with Public Participation & of Enterprises of General Economic Interest: http://www.int/cms3_fo/showPage. Youth and Culture Affairs Council: http://ue. Social Policy.int/committees/cult_home.asp?id=411&lang=en – Education.htm – Committee on Culture and Education: http://www.osha.no/ 281 .etf.org/Content/Default.org/ – Union of Industrial and Employers’ Confederations of Europe: http://www.ueapme.bologna-bergen2005. Research and Energy: http://www.htm The Council Configurations: – Employment.int/ – Bologna process: http://www.asp? – European Association of Craft Small and Medium-sized Enterprises: http://www.eu.Chapter 20 – Committee on Industry.europarl.int/committees/itre_home. Health and Consumer Affairs Council: http://ue.eu.int/cms3_fo/showPage.

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* Advisor to the Director General of the Central Office of Labour. With respect to the acquis. TRANSPOSITION OF THE SOCIAL POLICY ACQUIS IN SLOVAKIA The necessary amendments to the Labour Code in order to comply fully with the EU acquis in the field of Social Policy were adopted on the 21 May 2003 and became effective as from 1st of July 2003. Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation (for example. These amendments completed the transposition of all directives in the relevant area.Chapter 21 CHAPTER 21 TRANSPOSITION AND IMPLEMENTATION OF EU SOCIAL AND EMPLOYMENT POLICY – EXPERIENCES OF THE SLOVAK REPUBLIC Valéria Kubalová* 1. Social Affairs and Family for Employment. Slovakia signed the Treaty on Accession to the European Union on 16 April 2003 and acceded to the EU on 1st May 2004. 283 . and Directive 2000/43/EC implementing the principle of equal treatment between persons irrespective of racial or ethnic origin have also been fully transposed. the Slovak Republic concluded its accession negotiations with the European Union at the Copenhagen European Council on 12-13 December 2002. negotiations in this chapter were already closed in 2001. the modifications of the Labour Code concerned in particular the following areas: Non-discrimination: The Slovak Labour Code provisions endorse the ban against discrimination in connection with the provisions of Directive 76/207/EEC on the implementation of the principle of equal treatment for men and women as regards access to employment. INTRODUCTION After an almost three-year ‘negotiation marathon’. the Slovak Republic fully accepted the acquis related to this field and has been prepared for its full implementation by the date of accession to the EU. Indeed. 2. Bratislava. the employer may not inquire about the employee’s sexual orientation). Slovakia. As regards the specific field of “Social Policy and Employment”.

PREPARATION FOR THE EUROPEAN SOCIAL FUND IN SLOVAKIA The Slovak Ministry of Labour. at the conclusion of the employment contract. special regulations or the relevant collective agreement. 135 concerning protection and facilities to be granted to workers’ representatives in the undertaking. Information and Consultation of Employees: Directive 2002/14/EC has been fully transposed into the Slovak Labour Code. Working time: The Slovak Labour Code provisions concerning working time were further specified in order to ensure greater flexibility within the organisation of working time and. Equally. Employers may require overtime work of up to 150 hours.Chapter 21 Protection of pregnant women and parental leave: The possibility to require information on pregnancy from natural persons applying for work prohibited for pregnant women was removed in order to comply with Directive 92/85/EEC. the “double monthly wage” limit for the exercise of the right to appropriate financial compensation in case the employer. simultaneously. The methods of participation by individual workers’ representatives are precisely defined and the amendment enables the concurrent operation of workers’ councils and trade unions in one undertaking. 3. The Labour Code amendments also increased the overtime work limit to 250 hours if agreed upon by the employee. Labour relations with respect to employees posted by their employers from the territory of an EU Member State to Slovakia to provide services to another employer are also governed by law. Social Affairs and Family has been designated as the Managing Authority for three programming documents: 284 . the Slovak Labour Code amendment has removed the exclusive position of labour unions in safeguarding the provision of fair and satisfactory working conditions of employees through elected representatives. the weekly working time per one employer is set at 48 hours. the ‘non transferability’ of parental leave is ensured in the provisions of the Labour Code amendment concerning maternity and parental leave in order to fully comply with Directive 96/34/EC. new forms of shortened working time have been introduced (up to 20 hours weekly). to guarantee appropriate protection for employees in accordance with Directive 93/104/EC concerning certain aspects of the organisation of working time (amended by 2000/34/EC). Workers’ representation: In accordance with the ILO Convention No. Posting of workers: The transposition of Directive 96/71/EC concerning the posting of workers in the framework of the provision of services has been completed. In addition. breaches the principle of equal treatment related to access to employment or other obligations was cancelled.

The obligatory character of active labour market measures (every applicant who meets the conditions stipulated by law is entitled to a contribution). and differentiation of the level of this support according to the level of unemployment in the region). Focus on marginalised groups and disadvantaged regions (support for the creation of jobs for long-term unemployed persons.Chapter 21 The Sectoral Operational Programme Human Resources (SOP HR)1. Social Affairs and Family (MLSAF). disabled persons. The EQUAL Community Initiative financed by the European Social Fund (ESF). and are based on the following principles: Individual and targeted (tailor made) approaches for unemployed persons. An internal document on the strategy for the use of ESF funding has been elaborated and used for the successful implementation of the programming documents. Objective 3. Support for the development of employment services provided by the private sector. The programme complements for both documents have been finalised and approved in 2004. a new organisational structure and a reinforcement of the personnel was approved by the Minister and is effective since 1st June 2002.sk Office of Labour. In order to enhance the performance of the administrative and organisational capacity of the ESF Management Section within the Slovak Ministry of Labour. Several rounds of negotiations and meetings with the representatives of the European Commission had been launched before the final version of both documents has been adopted in the first half of 2004. An IT monitoring system for structural funds has been developed for all EU Structural Funds. in accordance with the objectives of the European Employment Strategy. The Central Office of Labour. Social Affaires and Family of the Slovak Republic: http://www. Employment services have been provided at a higher level of quality since January 2004. too.upsvar.gov. 1 Sectoral 2 Central 2 Operational Programme Human Resources: http://www. The programming documents SOP HR and SPD-Bratislava. single parents. The Single Programming Document (SPD) NUTS II – Bratislava. Objective 3 including the Communication Action Plan were prepared and sent to the European Commission for negotiation in 2002.esfslovakia.sk 285 . Objective 3. All ministries dealing as Managing Authority and Intermediary bodies are on-line connected to this ITMS programme. young people. Information regarding the ESF is available on the website of the MLSAF. Monitoring committees have been created for both programming documents and the committees’ statutes and rules of procedures have been elaborated. Drawing of the ESF budget from both programming documents is based on the implementation of the National Projects. Social Affairs and Family has been designated as the final beneficiary for the implementation of active labour market policy through SOP HR as well as SPD-Bratislava. Compliance with principles of state aid and with the rules of the ESF.

social affairs and family to provide more directed and individually focused employment services. The Act on Employment Services (which took effect in February 2004) created a legal framework for the offices of labour. a series of measures have been taken and structural reforms have been put in place in Slovakia in order to meet the objective of the EU to establish a “competitive and dynamic knowledge-based economy with greater social solidarity and a higher rate of employment”. with a large share of long-term unemployed persons.eu. Slovakia’s high unemployment rate deviates significantly from the EU average.pdf 286 . A unified 19% rate of income tax was introduced for corporations and individuals and the system was made considerably simpler. At the beginning of 2004 an institutional reform came into force whose main effect was to combine employment services with the state administration’s activities in the area of social services and provide all services in the area of employment together with related social security benefits. In 2003 a significant reform of the tax system took place.int/comm/employment_social/employment_strategy/nap_2004/nap2004sk_en. Although the unemployment rate is falling. 4. Regional differences are important.Chapter 21 4. 3 Slovak National Action Plan for Employment for the period 2004-2006: http://www.europa. THE NATIONAL ACTION PLAN FOR EMPLOYMENT FOR THE PERIOD 2004–20063 As many other new Member States. which help unemployed citizens to get back into the labour market. This law improved the system for mediating employment with the private sector. low-skilled and older workers (especially older women). In order to increase the speed at which the measures begin to have an impact on the labour market the MLSAF has prepared national projects to be co-financed from the ESF. for creating temporary employment agencies and agencies for supported employing. it continues to be very high. disabled persons. The employment rate of women is low as well as the rate of young people.1. As a result the Slovak government has introduced and is implementing a number of structural reforms that relate to this strategic goal: The amended Labour Code of 2003 anticipates a balancing of the need for flexibility in the labour market with the requirement for the protection of employees’ rights in contractual relations. Structural policies The main strategic objective of the Slovak Republic is to achieve the target of the Lisbon strategy: a total employment rate of 70% in 2010. inheritance tax and gift tax were cancelled on the grounds that one income may not be taxed twice. With regard to property taxes. the expansion of freedom of contract including the options relating to collective bargaining. a simplification of the process for entering into an employment contract by extending the forms of employment available to employees. In accordance with the Lisbon strategy.

This reform is linked to a comprehensive reform of the ‘pay-as-you-go’ pillar of the pensions system. The implementation and impact of the reforms should be properly monitored. The Recommendations for Employment Policy in Slovakia The Council proposed the following recommendations for implementing employment policy in Slovakia for the year 2004: Increasing adaptability of workers and enterprises: The recommendations insist on further reductions in the high tax burden on labour.g.g. 287 . This so-called ‘second pillar’ of the pensions system shall guarantee the long-term financial stability of the pensions system. which consists mainly of social contributions. According to the Council. a system of compulsory oldage pensions saving has been introduced. Financing for active labour market policies is set to increase. albeit from a low level. Strengthening the status of small and medium enterprises (SME) is also one of the priorities of economic policy. the key focus is on increasing productivity through a favourable investment climate. young people. remove obstacles to part-time work) so as to create more job opportunities and facilitate job mobility. The recommendations calls for modern active labour market policies. support for business and effective regulation. diversify the risk of individual methods of financing pensions and create space for increasing the level of pensions provided. more flexible forms of work and greater use of part-time work. Social partners should be encouraged to promote more contractual and working time diversity (e. liberalisation. this could also contribute to raising female participation. special attention continues to be needed in order to increase the participation of older workers in employment. which has until now been based on the insurance principle. The labour market should be more inclusive and reforms should be implemented to encourage people to seek work actively. In addition to efforts aimed at making work pay. 4. and modern public employment services to ensure a wider coverage of the population. Several economic policy measures: In the market for products and services. it is important to continue the effective removal of unemployment and inactivity ‘traps’ and to transform undeclared work into employment by building on the ongoing reforms of the tax and benefit systems. According to the Council. the long-term unemployed. older workers) and disadvantaged regions. a higher intensity of competition. especially through the implementation of employment legislation and pension reform. greater access to training for the unemployed and the inactive. as is the number of people taking part.2. Attracting more people to the labour market and making work a real option for all: According to the Council.Chapter 21 As part of the implementation of pension reform. and the postponement of the retirement age for both women and men to the age of 62 years. Further attention is needed for groups at risk (e. people with disabilities. the new priority given to integrating the Roma population needs to be rapidly translated into action.

the Ministry of the Economy. the Statistical Offices and the National Labour Inspectorate to create conditions to gain detailed information on the problems of labour market supply. Social Affairs and the Family and the offices for labour. Central Office for Labour. regional government and the state administration in the regions The MLSAF works closely with the ‘economic’ ministries (the Ministry of Finance. Social Affairs and the Family. According to the recommendations. Posts and Telecommunications) to co-ordinate proposals for projects and policies aimed at increasing demand in the labour market. Social Affairs and the Family The Central Office for Labour. The response of the Slovak Republic’s employment policy to the employment guidelines and the Council’s specific recommendations for the Slovak Republic can be found in Slovakia’s National Action Plan for Employment (NAPE). It invites the regional governments and regional state administration bodies to present proposals for projects and policies for improving the relation between supply and demand in the regional labour markets with the co-operation of employers in the region. with the Slovak Ministry of Education. Economic restructuring. the Ministry of Agriculture and the Ministry of Transport. and to review the contributions to be made by individuals. The MLSAF co-operates closely with the Central Office for Labour. The key requirements for the development of a lifelong learning strategy are greater incentives to invest in training and to facilitate access to education. 4. regional and skills mismatches also call for greater support for occupational and geographic mobility throughout the life cycle. social affairs and the family (in total there are 46 such offices in Slovakia) are institutions created in January 2004 by the National Labour Office and the social affairs divisions of the former regional and district state 288 . there is a need to encourage investment in human capital and foster lifelong learning by further reforming the education system. This coordination and preparation of the NAPE in Slovakia is organised as follows: Co-operation of ministries. Partnerships for the implementation of employment guidelines The Slovak National Action Plan for Employment (NAPE) 2004-2006 has been prepared in accordance with the principles good governance and partnership. The Slovak MLSAF is in charge with the coordination of the preparation of the NAPE. which is used to design policies that improve the structure of supply and increase balance in the labour market. enterprises and society as a whole.3.Chapter 21 Ever more effective investment in human capital and lifelong learning: The alarmingly high unemployment rate among young people points to the need to bridge the gap between skills they have acquired in their initial education and the skills needed to succeed on the labour market.

Reform has brought these institutions closer to the jobseeker and they are released from carrying out activities that have no direct relation to services that support clients’ return to the open labour market (e. At local level. The state has no right to intervene in the collective bargaining process between social partners (except to determine mediators and arbitrators for collective disputes). 289 . the Higherlevel Collective Agreement for the State Administration). Government of the Slovak Republic The MLSAF presents the draft NAPE for approval by the government. social affairs and the family. which ensures that the Slovak strategy for employment has the approval of the Slovak government. actively involved in preparing legislation to enable the implementation of the European Employment Strategy in Slovakia (the Labour Code. At the same time it pays unemployment benefits to job seekers. Their main task is to get back as many job seekers and recipients of material need assistance as possible on the labour market in the shortest possible time. through the process of collective bargaining. Co-operation of the National Council of the Slovak Republic The National Council of the Slovak Republic has a significant role to play. guarantee insurance and contributions for unemployment insurance. the Collective Agreement for Public Services. the Slovak Confederation of Trade Unions and the Slovak Federation of Employers’ Associations present their standpoints and CESA recommends either that the plan should or should not be discussed by the Slovak government. and it cannot impose what is to be included in a collective agreement. It passes the laws that provide the important legislative framework for policies supporting and implementing changes and improving the situation in the labour market. Its branches at the regional level co-operate closely with the offices of labour social affairs and the family. the draft NAPE is discussed in the Council for Economic and Social Agreement (CESA) before it is presented for discussion by the Slovak government. Co-operation of social partners Social partners participate in the preparation of the NAPE by presenting partial documentation for the elaboration of the relevant guideline. At this discussion of the NAPE. At company level they can negotiate. the local government is involved in the implementation of the NAPE. however. accident insurance. Social partners were. As a rule. the Act on Employment Services. particularly in the implementation of the NAPE. they do not distribute unemployment benefit).g.Chapter 21 administration offices as part of the reform of the social system. Social Insurance Agency The Social Insurance Agency collects insurance for sickness benefit. the Act on Collective Bargaining. pension insurance. and co-operates most closely with the offices of labour. more favourable regulations on working conditions including remuneration and employment conditions.

financial resources from the state budget will be used. It is responsible for the collection of reliable information and ensuring that information is provided on the correct implementation of activities. Co-operation of scientific institutions and the research sector Scientific institutions (e. ministerial research institutes and universities) take part in the development of the NAPE and also in its implementation.4. The relevant ministries will be responsible for implementing individual priorities and measures and also for the transparency with which financial resources are managed during the implementation of these priorities and measures. In the Slovak Republic the Ministry of Education is appointed as an intermediate body under the paying/managing authority for SOP HR. In accordance with Decree no. Financing the NAPE The implementation of the NAPE is financed mainly from funds intended for the implementation of individual measures of the Sectoral Operational Programme–Human Resources (SOP HR). The Paying Authority also may not delegate to the payment unit the functions of submitting certifications of expenditure and applications for payment to the Commission.133/2002 the Slovak government appointed the MLSAF as the managing authority for the SOP HR. non-governmental organisations are invited to participate. The basic role of the payment unit is to ensure the transfer. The managing authority is directly responsible for managing and implementing operations within the framework of the operational programme financed from ESF. 4. national public funds and private funds will be used. The paying authority delegates the performance of some of its functions to payment units.Chapter 21 Co-operation with non-governmental organisations and organisations for the disabled During the preparation of documentation for the NAPE. in accordance with Slovak legislation. divided into the budget chapters and budget programmes for individual ministries. This means that Community funds. and of acceptance of payments from the EC. 290 . to carry out ex-ante control and to administrate the debtors’ ledger. SPD Bratislava NUTS II Objective 3 and the Community Initiative EQUAL. the Slovak Ministry of Finance was appointed as the sole paying authority for the structural funds. depending on the breakdown of individual measures for the relevant operational programme. The Slovak Academy of Sciences and its Institute of Forecasting and the Institute of Slovak and World Economics. In accordance with the Slovak Government Decree No. of EU funds from the state budget from the expenditure account of the relevant Ministry to the account of the final beneficiary based on the performance of a provisional financial control. In the case of domestic financial resources. with regard to compliance with Community rules. 617 of 5 June 2002.g. The paying authority retains overall responsibility for the delegated powers.

SECTION 8 EU JUSTICE AND HOME AFFAIRS .

Chapter 292 .

Third. security and justice” (AFSJ) can be regarded as one of the most significant developments in the European integration process at the beginning of the 21st century: First. Second. we will look at the current framework in terms of institutions. Today JHA measures belong to the fastest growing domains of the EC and EU legal acquis and are wide-ranging and ambitious to an extent which would have been difficult to imagine at the beginning of the 1990s. with most of these texts now being . United Kingdom. JHA policy-making touches upon a number of very sensitive political issues: the fight against crime and illegal immigration. This chapter will conclude with an assessment of future development perspectives for the AFSJ in the light of the Hague programme of November 2004 and the EU’s Constitutional Treaty which is currently in process of ratification. ensuring that asylum systems are both fair and protected against abuse and facilitated access to justice.Chapter 22 CHAPTER 22 EU JUSTICE AND HOME AFFAIRS Jörg Monar* 1. * Professor of Contemporary European Studies. instruments and decision-making procedures before we proceed to a survey of progress and deficits in the different policymaking areas. Jean Monnet Chair.of a binding legal nature. INTRODUCTION There are at least three reasons why EU justice and home affairs (JHA) policy-making in the context of the “area of freedom. Since 1999 the EU Council has been adopting on average around ten new texts per month. the AFSR has by now not only become a fundamental integration and treaty objective but also one of the major areas of ‘growth’ of EU action. 293 . JHA policy-making touches upon essential functions and prerogatives of the modern nation-state such as providing citizens with internal security.unlike in the earlier 1990s . controlling external borders and access to national territory and administering justice. Co-Director of the Sussex European Institute. University of Sussex. In the following we will first provide a brief account of the historical development of EU justice and home affairs cooperation since its origins in the 1970s. Then.

such as the mutual recognition of court decisions in the civil and commercial law areas. As a result the Member States of the European Communities for more than two decades only cooperated within the EC on a very limited number of JHA issues which were directly related to the creation of the Common Market. the Council of Europe did not provide an adequate framework for action on issues of particular common interest for the EC Member States themselves. As a result the ministers of interior created in 1975 the so-called TREVI (“Terrorisme. however.Chapter 22 2. In spite of these limitations TREVI proved to be a success because it opened up the relevant services of the ministries and police forces for the first time for regular cooperation in the EC context and led to an increased efficiency in the fight against terrorism. which provided for regular meetings at the level of ministers and senior officials for the purpose of information exchange. Italy and United Kingdom in particular) were faced with increasing threats by terrorist activities and there was clear evidence of cooperation between these different terrorist groupings. In the context of the Council of Europe a number of conventions on important JHA issues were negotiated since the 1950s (extradition 1957. These conventions also formed a point of departure for the closer cooperation the EC Member States later developed within the EC and EU context. Yet there was an important framework for cooperation outside the EC framework in which the Member States played an active role: the Council of Europe. radicalisme et violence internationale”) framework. money-laundering and organised crime. With its much larger membership and limited mandate. no permanent institutions and no legal or budgetary instruments. Germany. etc. mutual legal assistance in criminal matters 1959. and a range of Council of Europe legal instruments are in fact today considered to be part of the EU legal acquis. TREVI was created outside the framework of the EC Treaties as a purely intergovernmental cooperation structure with no legal basis. THE DEVELOPMENT OF EU JUSTICE AND HOME AFFAIRS COOPERATION – FROM TREVI TO THE AFSJ The founding treaties of the three European Communities in the 1950s did not make any formal provision for cooperation in the JHA domain. Such an interest evolved in the 1970s when a number of the Member States (France. The Member States therefore gradually expanded the scope of their TREVI cooperation until the 1980s to the fight against drugs. which was not matched by similar cross-border law enforcement cooperation between the Member States.) which allowed for the establishment of a basis of cross-border cooperation in Europe in the criminal justice field. coordination and the facilitation of cross-border cooperation in the fight against terrorism. validity of criminal judgements 1970. By the mid-1980s justice and home affairs cooperation between the Member States was driven forward by two other factors: The first of those was the political objective of the abolition of controls on persons at internal borders between the Member States which was considered to be important both for the creation of a ‘Europe of the citizens’ and for the completion of the Internal Market through the lifting of any remaining border 294 . transfer of proceedings in criminal matters 1972.

It gave the EU institutions for the first time competences to act in these areas. A number of new intergovernmental coordination groups within the EC (such as the Rhodes Group of Coordinators on Free Movement) were set up which. The second factor of development in the 1980s was the Internal Market programme which was implemented from 1985 to 1992. inter alia. As several Member States were against any ‘communitarisation’ of JHA policies. immigration and transnational organised crime areas as a result of the new permeability of borders in Europe and the disintegration of state internal security systems in some of the former communist countries in the East exposed these weaknesses and led the EC Member States to give for the first time a treaty base to their cooperation in the JHA domain through the Treaty of Maastricht which was signed in 1991 and entered into force in 1993. these new competences were laid down in a separate part (Title VI) of the Treaty establishing the European Union – not in the EC Treaty – which became thereafter known as the ‘Third Pillar’ of the EU. judicial cooperation in civil and criminal matters and police cooperation and fight against serious forms of crime “matters of common interest”. immigration. police cooperation. both inside and outside (TREVI and Schengen) of the EC framework. which were joined by more and more of the other EC Member States. In response five Member States (France. The emergence of increased challenges in the asylum. capitals and services the Internal Market programme forced also all EC Member States – not only those participating in Schengen – to reinforce cooperation on a number of JHA issues in order to prevent especially the new free flow of goods and capitals across borders from creating increased internal security risks.Chapter 22 controls. Germany and the Benelux countries) decided in 1985 to go ahead with this objective outside of the EC framework and created the ‘Schengen’ system. prepared the decision taken in 1990 to create a European police office which later led to the establishment of Europol. From 1985 onwards the Schengen countries. Through its removal of most of the remaining barriers to the free movement of goods. Yet for internal security reasons a number of Member States – and in particular the United Kingdom – were not willing to proceed with this objective in the EC context. The Treaty of Maastricht formally declared asylum. By 1995 these compensatory measures were fully in place and controls on persons at internal borders were fully abolished. gradually designed and implemented a large number of so-called ‘compensatory measures’ encompassing external border controls. asylum. By the end of the 1980s the Member States were therefore engaged in a wide range of forms of intergovernmental cooperation in the JHA domain. Yet this cooperation was weakened by the absence of treaty based action possibilities and the proliferation of often poorly coordinated intergovernmental groups. the fight against various types of crime and the creation of a sophisticated Schengen Information System (SIS) in order to ‘compensate’ for the loss of traditional controls on movements of persons across internal borders. Because of the extensive nature of these ‘compensatory’ measures the Schengen system became in fact a precursor and laboratory for justice and home affairs cooperation within the EC (and later the EU) as a whole. the ‘First’ being 295 .

The Treaty also provided for the ‘communitarisation’ of the areas of asylum. In form of the overall objective of the creation of the “area of freedom. though. which entered into force on 1 May 1999. required unanimity amongst the Member States for all decisions. The progress brought by the Treaty of Amsterdam came at price. security and justice” (Article 2 TEU) the new Treaty elevated the JHA domain to a fundamental treaty objective which. immigration. The Member States could also not agree at Amsterdam to grant an exclusive right of initiative to the Commission and co-decision powers to the European Parliament. In the final stage of the Amsterdam negotiations Germany insisted on maintaining unanimity voting also for the communitarised areas during the transitional period. was linked to a whole range of precise objectives some of which were to be achieved during a transitional period of five years (until end of April 2004). Only police cooperation and judicial cooperation in criminal matters were left in the ‘Third Pillar’ (Title VI TEU). A further important reform was the incorporation of the Schengen system into the EU. but there as well the decision-making capacity was increased by the introduction of precise objectives and more effective legal instruments. While the Maastricht ‘Third Pillar’ had the important consequences of giving to the entire JHA domain an EU treaty base and allowing for the incorporation of TREVI and the other intergovernmental groups into the institutional system of the Union.Chapter 22 formed by the EC Treaty and the ‘Second’ by the Common Foreign and Security Policy (CFSP) respectively. it had become clear by the mid-1990s that it needed to be reinforced in order to allow for more efficient action by the EU. restrictions which were only lifted partially after the end of the transitional period. which has significantly reduced the decision-making capacity of the Union in these areas. bringing them under the scope of the Community system with its well established legal instruments. severely restricted the roles of both the Court of Justice and the European Parliament and had not put an end to the separate existence of the Schengen system outside of the EU. which agreed in June 1997 on the Treaty of Amsterdam. 296 . The opportunity to reform the Maastricht ‘Third Pillar’ arose during the 1996/97 Intergovernmental Conference. border controls and judicial cooperation in civil matters which were transferred to a new title (Title IV) of the EC Treaty. which finally became a full part of the EU acquis with the entry into force of the Amsterdam Treaty in 1999. provided only for a limited right of initiative of the European Commission. however. with an option. it also had a number of serious weaknesses: It lacked precise objectives and adequate legal instruments. Although some progress – such as the definitive establishment of Europol and several measures against organised crime – was achieved under the regime of the Maastricht ‘Third Pillar’. this time. The role of the Court of Justice was considerably enhanced across all JHA domains. a certain degree of fragmentation for the AFSJ since ‘opt-outs’ had to be granted to Denmark from the communitarised policy-making areas and to The United Kingdom and Ireland both from the incorporated Schengen system and the communitarised areas. this also in the light of the upcoming eastward enlargement. to join any measures in this domain if they should wish to do so.

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Nevertheless the Treaty of Amsterdam marked a major breakthrough for JHA cooperation in the Union which were marked by the adoption of well over a hundred texts by the Council every year since 1999 of which a much higher number than before have been of a fully legally binding nature. The Treaty of Amsterdam provided the basis for both the decisions of the Tampere European Council (October 1999) to proceed towards a common European asylum system, to make substantial progress with mutual recognition in the criminal justice domain and to establish the cross-border prosecution unit Eurojust, and for the Seville European Council (June 2002) which has added to the objectives of the AFSJ a stronger emphasis on the fight against illegal immigration and reinforced cooperation on external border controls. The Treaty has also made all elements of the AFSJ – including the Schengen system – part of the Union acquis which new Member States have to accept upon accession, as a result of which the ten new Member States which joined in 2004 also automatically joined the Schengen system, although they still have to wait some time before they can join the operational parts of the system. It seems fair to say that on the basis of the Amsterdam reforms – which remained essentially unchanged by the Treaty of Nice (2003) – the AFSJ has become today one of the most important policy-making domains of the Union.

3. INSTITUTIONS, PROCEDURES

INSTRUMENTS

AND

DECISION-MAKING

3.1. The Institutional Set-up
The intergovernmental origins of EU JHA cooperation, its sensitivity from a national sovereignty point and the intergovernmental elements left in the current Treaty provisions have made this a domain in which the Member States continue to play a more prominent role than in other ‘communitarised’ areas of EU policy-making. This is reflected, first of all, in an important role played by the European Council (regrouping the Heads of State or Government) which since 1999 has repeatedly taken important initiatives regarding the further development of the AFSJ and regularly includes JHA relevant issues in its “Conclusions”. This means that the Heads of State or Government of the EU have assumed a role of policy initiation in this domain, reducing thereby to some extent the traditional role of the Commission as the ‘motor’ of policydevelopment.

The JHA Council The most important decision-making instance on the AFSJ remains the Council (of Ministers) which meets as the “JHA Council” normally on a monthly basis. It brings together both the ministers of interior and of justice of the Member States. The presence of representatives from both ministries, which normally are the cabinet ministers themselves, not junior ministers or state secretaries, does not always make decisionmaking easier as ministers of interior occasionally disagree with the colleagues from the ministries of justice, especially if those belong to a different party in coalition
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governments. All legislative acts are formally adopted by the Council, although in practice ministers only deliberate on acts on which compromises have not yet been found at the committee level (so-called ‘B’ points).

COREPER II and the Council’s Committees The ministers’ deliberations are prepared by the COREPER II which regroups the Permanent Representatives themselves, a further indication of the political importance of this domain. The Permanent Representatives are helped by their so-called “JHA advisers”, experts delegated to the Permanent Representations by the ministries of interior and of justice which in practice also serve as ‘watch-dogs’ of their ministries regarding the policy-making process in Brussels. The COREPER II relies heavily on compromises on texts already been found in committees below its level, the most important of which are the SCIFA (Strategic Committee on Immigration, Frontiers and Asylum), the Committee on Civil Law Matters and the Article 36 Committee (which coordinates work in the areas of police cooperation and judicial cooperation in criminal matters). Those committees are composed of senior officials from the respective national ministries and the Commission and normally sort out key compromises on texts to be adopted by the Council at their level. Below the level of these committees there are over 20 different working parties composed of experts from the ministries and the Commission who deal with the more detailed issues of, for instance, EU visa policy, expulsion, Europol and the fight against terrorism. There are also ‘horizontal’ working parties to ensure overall coordination of EU action in the areas of the fight against drug-trafficking and organised crime. The work of these working parties is coordinated by the senior committees to which they also report. The working parties, the committees and the Council itself are supported by the Directorate-General of the Secretariat-General of the Council whose officials often play an important role in helping the Presidency in finding compromises between national positions.

The European Commission The Commission has had to struggle to establish its role in the JHA domain, having been hampered in the 1990s by its originally rather restricted right of initiative, an unwillingness of some Member States to let it play a more significant role and a rather limited in-house expertise on JHA matters. Yet as a result of the Amsterdam reforms, the establishment of a new Directorate-General (“Freedom, Justice and Security”) and a more pro-active policy line under the Prodi Commission, the institution has gradually been able to enhance its position since 1999 which was further reinforced on 1 May 2004 when the Commission, as a result of the end of the transitional period, gained an exclusive right of initiative in the communitarised JHA areas. Disposing now of significant in-house expertise because of a dedicated Commissioner’s portfolio in the domain, the Commission now plays a policy-initiating and implementing role rather similar to that it has in other Community domains in the communitarised areas, but a slightly weaker one in the remaining ‘Third Pillar’ where it still has to share its right of initiative with the Member States.
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The European Parliament The European Parliament had to content itself until 2004 with a consultative role on most legislative acts in the JHA domain which – having regard to the obvious implications JHA measures can have for citizens’ rights – has been one of the most glaring elements of the EU’s democracy deficit. Yet as a result of the decision taken by the Council on 22 December 2004 to move to the co-decision procedure in all communitarised areas with the exception of civil law cooperation and measures on legal immigration (see below) the Parliament has obtained full legislative co-decision rights with the Council in these domains from 1 January 2005 onwards. This is certainly going to strengthen its position in the JHA domain very considerably, although it will continue to be limited to the right to be consulted only in the remaining areas of the ‘Third Pillar’. The Parliament has entrusted a special standing committee with the scrutiny of measures in JHA domain – the Committee on Civil Liberties, Justice and Home Affairs (LIBE) – which, as its name already indicates, has tended to place a special emphasis in its scrutiny of EU action on the question of adequate protection of civil liberties.

The European Court of Justice Since the entry into force of the Treaty of Amsterdam in 1999 the Court of Justice (ECJ) has acquired substantial judicial control powers in both the communitarised and the non-communitarised domains. Yet its powers are still more limited than in other policy areas under the EC Treaty. In the communitarised areas the important preliminary rulings procedure, which allows national courts to refer to the Court for questions of the application of EC law, has been limited to national courts of last instance. This reduces the Court’s case-load but makes it also more difficult, for instance, for asylum or immigration cases to reach review by the ECJ. In all JHA areas the Court’s role is restricted by an explicit exclusion from its jurisdiction of national measures relating to the maintenance of law and order and the safeguarding of internal security (Article 68(2) TEC and 35(6) TEU). In addition, the acceptance of preliminary rulings by Member States in the areas of the ‘Third Pillar’ is not mandatory but subject to a declaration by each Member State that it is willing to accept such jurisdiction (Article 35(2) TEU) – which not all Member States have made.

The Special Agencies It is among the specificities of the AFSJ that the Council has set up a whole range of special agencies which are sui generis institutions entrusted with special tasks. The most important of those are Europol, Eurojust, the monitoring centres for drugs and racism and xenophobia, the European Police Academy and the external borders agency, which is in the process of being established. These institutions do not have, however, any role in the decision-making process and are limited to information exchange and analysis, coordination and training tasks.

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3.2. The Instruments
In the communitarised areas of Title IV TEC the legal instruments are those of the EC, i.e. in most cases “regulations” and “directives” whose legal status, including their “direct effect”, has been amply clarified through case law of the ECJ. In the areas of the ‘Third Pillar’ the most important applicable legal instruments are “decisions” and “framework decisions”, with the latter being designed as instrument for the approximation of laws, which is binding on the Member States but leaves it to them to adopt implementing legislation. According to the EU Treaty, they do not have “direct effect” (Article 34(2)). In addition to the legal instruments the Council also often uses non-binding instruments, the most important of those being the adoption of multi-annual “action plans”. These action plans normally focus on priority areas of EU action – such as the fight against drugs, terrorism and organised crime – and define both shorter and longer-term objectives for common action through legislation or other means. Although not legally binding, the action plans have become important programming instruments, which largely determine the sequence of measures taken by the EU and the extent of legislative action. Since the Treaty of Amsterdam the EU budget can be used to finance measures both in the communitarised and the non-communitarised areas. The annual EU budget has a separated heading for the AFSJ whose total allocation for 2005 amounts to Euro 526 million (out of a total budget of Euro 116.5 billion). Finally, it has to be mentioned that the EU can also use external instruments to pursue JHA objectives. Because of the principle of the parallelism between internal and external competences (developed by the ECJ) the EC can negotiate and conclude agreements with third countries in all of the communitarised areas. In the ‘Third Pillar’ areas the Union can do the same by using the ‘Second Pillar’ treaty-making procedure (Article 24 TEU in conjunction with 38 TEU). The EU has already used these external powers in several cases and is likely to do so more often in future as internal JHA measures increasingly require complementary action at the international level.

3.3. The decision-making procedures
The Treaty of Amsterdam had not brought an immediate breakthrough towards majority voting in the JHA domain, maintaining initially unanimity for the transitional period of five years. The Treaty of Nice, which entered into force on 1 February in 2003, accelerated the passage to the use of qualified majority in the communitarised areas, a move which was completed by a decision taken by the Council on 22 December 2004 (OJ L 396/45 of 31.12.2004) to apply the co-decision procedure to all communitarised JHA areas under Title IV TEC with the exception of measures relating to legal immigration and to family law from1 January 2005 on. As a result the Council now decides by qualified majority on asylum, matters of illegal immigration, external border
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controls and civil law cooperation issues (with the above mentioned exception of family law) by qualified majority voting, and this on the basis of an exclusive right of initiative by the Commission (see above). In the remaining ‘Third Pillar’ areas (police and judicial cooperation in criminal matters), however, unanimity continues to prevail, and the Commission there still has to share the right of initiative with the Member States. Overall therefore substantial areas of the AFSJ remain dominated by the unanimity principle, which in most cases means longer delays in decision-making and least common denominator agreements.

4. PROGRESS AND DEFICITS IN THE DIFFERENT POLICYMAKING DOMAINS 4.1. Asylum Policy
The free movement of persons within the EC and the abolition of controls at internal borders have provided a powerful argument for a substantial harmonisation of asylum law within the EU. In an ‘area’ of free movement restrictive measures by one Member State inevitably tend to divert asylum applications to other Member States, with the risk that this generates a ‘race to the bottom’ of asylum guarantees. The first step taken towards a common approach in the asylum domain was the Dublin Convention, which entered into force on 1 September 1997 and has since been transformed into an EC Regulation (No 343/2003, OJ L 50/1 of 25.2.2003). This socalled Dublin Regulation establishes criteria and mechanisms for determining the Member State responsible for examining an asylum application. These criteria, which include – for instance – the existence of family links of the asylum seeker in a Member State, allows for the identification of a single Member State for the processing of an asylum application whose decision is normally recognised by all other Member States so that a rejected asylum seeker will in most cases not get a second chance in another Member State. The Member States have had considerable difficulties to agree on common minimum standards on procedures for the granting and withdrawing of the refugee (asylum) status. The Member States have failed so far to agree on a common list of ‘safe third countries’ to which rejected asylum seekers can be returned after the termination of their procedure. This constitutes a serious deficit as procedural standards continue to vary widely amongst the Member States which means that asylum seekers continue to be treated rather differently from one Member State to the other during their procedures. Regarding minimum standards for the reception of asylum seekers the Council has been more successful. A Directive was adopted in January 2003 (No 2003/9, OJ L 31/18 of 6.2.2003) which defines a range of minimum standards regarding the subsistence of asylum seekers and their access to a number of social rights such as health and
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education. These standards, however, are rather ‘minimalist’ and leave it largely to the individual Member States, for instance, to grant or not grant asylum seekers access to their labour markets. After long and difficult negotiations the Member States have also been able to agree on an approximation of rules regarding the recognition and content of the refugee status: On 29 April 2004 the Council adopted the so-called ‘qualification’ Directive (No 2004/83, OJ L 304/12 of 30.9.2004) which provides for a minimum harmonisation of the qualification elements for the status of refugee as defined – rather vaguely – by the 1951 Geneva Convention. In addition, the Member States were also able to agree on the establishment of a European Refugee Fund (2000) co-financing national projects for the reception, integration and repatriation of refugees and on minimum standards for the protection of displaced persons (2001). Taken together, these measures have at least put elements of a truly ‘common policy’ into place.

4.2. Immigration Policy
The main emphasis of EU action in the immigration domain has so far been clearly on the combat against illegal immigration. After various individual measures the Council adopted on 28 February 2002 a comprehensive action plan which provides for a range of measures in the areas of visa policy, information exchange, readmission and repatriation, police cooperation and border controls. In the legislative field this action plan has so far led to a Framework Decision on combating trafficking in human beings (No. 2002/629/JHA, OJ L 203/1 of 1.8.2002), another Framework Decision on the strengthening of the penal framework to prevent the facilitation of unauthorised entry, transit and residence (No. 2002/946/JHA, OJ L 328/1 of 5 December 2002) as well as a Directive defining the facilitation of unauthorised entry, transit and residence (No. 2002/90, OJ L 328/17 of 5 December 2002). In the operational field the action plan has facilitated the launching of a number of joint operations (including in the Mediterranean) of forces from several Member States to intercept illegal immigration routes and cooperation on the identification of major illegal immigration routes and facilitators. In the area of legal immigration progress has proved to be much more difficult as the Member States want to retain national control over both the numbers of legal immigrants and their conditions of integration, especially because of the labour market implications. The Council has been able to agree on a Directive on the right of thirdcountry nationals to family reunification (No. 2003/86, OJ L 251/12 of 3.10.2003), which defines common minimum criteria of eligibility in terms of age and family relationship, and a Directive on the status of long-term resident third-country nationals (No. 2003/109, OJ L 16/44 of 23.1.2004), which defines the rights of a “long-term resident” status which third-country nationals can acquire after having been legally resident for at least five years. Overall the EU’s immigration policy remains incomplete and unbalanced: In spite of the
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enormous demographic challenges the Union is facing there is no real policy on legal immigration, most of the efforts being targeted at the reduction of illegal immigration.

4.3. Border Controls and Visa Policy
Apart from the United Kingdom and Ireland, which remain outside of the Schengen system, the 10 new Member States will only become operationally part of the Schengen zone after their ‘Schengen maturity’ in terms of their capacity to fully implement Schengen border security standards has been formally established by the ‘old’ Schengen members. The Schengen countries have developed an electronic information system, the “Schengen Information System” (SIS). The SIS, which is going to be transformed into a functionally more advanced second-generation SIS II by 2007, puts border police posts in a position to decide whether or not a person trying to enter the Schengen territory is to be admitted, refused entry or arrested, and also enables police forces to use criminal record data from other Member States for law enforcement purposes within their territories. Another development is the decision on the creation of a European Agency for the Management of Operational Cooperation at External Borders in October 2004. This Agency will be based in Warsaw and should start its work in autumn 2005. It is intended to coordinate operational cooperation between Member States and to provide border risk assessments, technical assistance and training. The “Schengen visa” is based on a common format, harmonised procedures for the issuing of such visas and a common list of third countries whose nationals must be in possession of a visa for entering the Schengen zone. In June 2004 the Council decided to establish a Visa Information System (VIS) allowing for the exchange of visa data between the Schengen members to prevent abuses of the Schengen visa system (Council Decision 2004/512/EC, OJ L 213/5 of 15.6.2004).

4.4. Judicial Cooperation in Civil Matters
The main method to achieve progress in the civil law area has been mutual recognition of judicial decisions. The most comprehensive instrument adopted so far is the so-called ‘Brussels I Regulation’ (No. 44/2001, OJ L 12/1 of 16.1.2001) of December 2000 on jurisdiction and the mutual recognition and enforcement of judgements in civil and commercial matters. The ‘Brussels I Regulation’ does not cover family law matters and a number of other areas such as social security. Its principles, however, have been extended to the domain of family law by the so-called ‘Brussels II Regulation’ (No. 2201/2003, OJ L 338/1 of
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OJ L 182/1 of 5. On 26 June 2001 the Council adopted a Framework Decision on money laundering and the identification. 4. It makes it possible to arrest and transfer between Member States suspects without formal extradition procedures. which includes terrorism. Since 1995 the Council has adopted over 20 texts 304 . the EU has created a European Judicial Network in Civil and Commercial Matters.1.12.2002). OJ L 26/41 of 31.2003). including right of access to children.2003) concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility. however. which entered into force on 1 January 2004 (No. which is aimed at facilitating cross-border judicial cooperation through specially designated national contact points and the appointment of liaison magistrates. homicide. legal separation and annulment of marriage as well as matters concerning parental responsibility for children of married and non-married couples. In spite of the already mentioned difficulties of harmonisation in the area of substantive criminal law some progress has also been made in this respect for particularly serious forms of cross-border crime. has been achieved with the Framework Decision of 13 June 2002 on the European Arrest Warrant. This second Regulation covers civil proceedings relating to divorce. freezing or seizing and confiscation of the proceeds from crime (No 2001/500/JHA.Chapter 22 23. The European Arrest Warrant provides for a substantial exemption from the principle of double criminality for a total of 32 offences. In 2001. tracing. and some significant progress has indeed been achieved on this basis. It provides for common minimum standards as regards the granting of legal aid to persons partly or totally unable to meet the costs of proceedings if they are domiciled or habitually resident in a Member State other than the Member State where the court is sitting or where a court decision is to be enforced. the tracing. freezing or seizing of criminal assets.7.5. The effectiveness of cross-border judicial cooperation obviously also depends on the speed of transmission of judicial and extra-judicial documents. The most important element of progress on the mutual recognition side.7.2001) which – building on a Council “Joint Action” of 1998 – provides for the implementation of confiscation orders issued in other Member States as well as the facilitation of the execution of requests for the identification. fraud. 2002/584/JHA. eliminating in particular all possible political intervention in the procedure by national governments. OJ L 190/1 of 18. Judicial Cooperation in Criminal Matters The Tampere European Council defined in 1999 the principle of mutual recognition as the cornerstone of criminal justice cooperation. trafficking in human beings and racism. A further important objective of civil law cooperation has been the improvement of access to justice by citizens (Directive 2002/8 on minimum common rules relating to legal aid in cross-border disputes.

trafficking in human beings and drug trafficking to terrorism. including terrorism. 305 .1995). OJ C 316/1 of 27. moneylaundering. ranging from the protection of the Euro. It also created in 2002 Eurojust as a permanent cross-border prosecution unit. Its primary role is to support both crossborder police cooperation and national investigations into cross-border crime through the computerised collection. Police Cooperation A step forward in the institutionalisation and facilitation of cross-border cooperation between police forces has been the establishment of the European Police Organisation Europol on the basis of a Convention of 1995 (Europol Convention. Europol. It was established in 2000 in order to provide . became fully functional in 1997 and has currently around 400 members of staff.a basis for the exchange of experiences. which meets at least once per Presidency with changing priorities. Established by a Council Decision of December 2000 the College has the task to provide training courses for senior law enforcement officers in various fields relating to the fight against cross-border crime. In the field of criminal justice the EU has also proceeded with a growing institutionalisation of cross-border cooperation. which is introduced in the Treaty establishing a Constitution for Europe.11. organised crime. however. Eurojust is widely regarded as a potential precursor for the establishment of a European Public Prosecutor’s Office.Chapter 22 providing for elements of minimum harmonisation as regards the definition of certain types of crime and of penalty levels. The Member States maintain permanent European Liaison Officers (ELOs) at Europol who play an important role in facilitating the establishment of direct contacts between police forces in different Member States and in ensuring the supply of relevant information. Unlike Europol. which is located in The Hague. 4. common evaluations and the planning of common operations in the fight against cross-border crime.6. environmental crime. the Task Force is not an institution with legal competences and permanent infrastructure but a high-level coordination group.in co-operation with Europol . Europol’s remit extends to a range of serious forms of cross-border crime. Composed of one magistrate nominated by each of the Member States plus supporting staff Eurojust has been vested with the task to facilitate judicial co-operation between prosecutors and magistrates in the Member States through the co-ordination of the competent authorities and the facilitation of the implementation of international mutual legal assistance and extradition requests. In 1998 the Council established the European Judicial Network for criminal matters (not to be confused with the one for civil and commercial matters) for the facilitation of judicial cooperation through national contact points and regular meetings. Another structure to be mentioned in the area of police co-operation is the European Police College. Another structure created for police cooperation purposes is the Police Chiefs Task Force (PCTF). including terrorism. transmission and analysis of data provided by national police forces through the national Europol contact units. trafficking in human beings and drugs and counterfeiting of the Euro.

by providing for a stronger and more uniform role for the ECJ across the whole JHA domain and by incorporating the EU Charter of Fundamental Rights as fully legally binding part of the Constitution. but a permanent Secretariat has been established in 2004 at the Bramshill Police Training College near London. It has to be emphasised that all measures mentioned in this section leave the principle of territoriality and national control over law enforcement fully intact.2. The Treaty establishing a Constitution for Europe The Treaty establishing a Constitution for Europe. 5. 5. it changes the legal framework of the AFSJ by abolishing the current three ‘pillar’ structure. 306 . by creating a single set of legal instruments and a single legal personality of the EU for external action.as regards further mutual recognition and harmonisation in the criminal justice field. The Hague Programme On 4/5 November 2004 the European Council endorsed a programme for the further development of the AFSJ. which builds on the progress made during the period 19992004 with the implementation of the objectives agreed by the Tampere European Council (see above). enhanced procedural cooperation in the issuing of visas and measures to facilitate the expulsion and repatriation of illegal immigrants. Annex I). called the Hague Programme (Council document 14292/04. Yet the Hague Programme has also a number of major deficits: Most important amongst these are the absence of any more substantial common measures in the domain of legal immigration and rather vague objectives – with the exception of the intended introduction of a European Evidence Warrant .1. There has been no move towards the creation of any supranational policing powers.Chapter 22 The College currently functions only as a network of national training institutions. the creation of a common financial instrument to support external border security cooperation by 2006. defines priorities and objectives for the period 2005-2010. FUTURE DEVELOPMENT PERSPECTIVES 5. This Programme. which is currently in the process of being ratified provides for a number of substantial changes in the AFSJ domain: First. a move that has already been implemented through the aforementioned Council Decision of 22 December 2004. the operational upgrading of the SIS to the SIS II until 2007. These include the establishment of a common asylum procedure and uniform asylum status until 2010. In order to facilitate decisionmaking. the Programme also provides for the passage to the co-decision procedure in most communitarised domains.

Justice et affaires intérieures dans l’Union européenne.Chapter 22 Second. immigration (though more on illegal rather than legal immigration). – Jörg Monar. procedural and substantive criminal law and crime prevention. Hervé Boullanger. Malcom Anderson. Harlow 2000. Un espace de liberté.). 2004. 2002. Internal security will remain largely a prerogative for national authorities. Journal of Common Market Studies. the integrated management of external borders. 2003. 38. Yet it will not bring a breakthrough towards supranational policy-making and implementation on core JHA.eu. especially after the ‘No’-votes in France (29 May 2005) and in the Netherlands (1 June 2005) – it will definitely reinforce the EU’s capacity to act in the domains of the AFSJ and reinforce democratic and judicial control. “The European Union. Relevant official documents and information can be found at the following websites: – Council. EU Justice and Home Affairs Law. Wyn Rees. The Hague 2002. Police and Justice Cooperation and the New European Borders. Jörg Mönar. the Constitution strengthens the institutional and decision-making framework of the AFSJ through the introduction of the co-decision procedure with qualified majority voting and co-decision by the European Parliament as standard legislative procedure. Bibliography – Joanna Apap. – Steve Peers.int/cms3_applications/applications/search/jaiSearch. Palgrave Macmillan.asp?lang=EN &cmsID=495 307 . de sécurité et de justice. Guardian of the People? The European Union and Internal Security. Yet the establishment of such an Office is subject to a unanimous Council decision and its remit will initially be limited to the protection of the financial interests of the EU. Yet some sensitive domains – such as criminal law harmonisation – will remain exempted from this reform. Annual Review 2003/2004”. Paris. “Justice and Home Affairs”. Longman. and the Commission will still have to share its rights of initiative with the Member States in the current ‘Third Pillar’ areas. – Valsamis Mitsilegas. Should the new Treaty be ratified – which cannot be taken for granted at this stage. Lee Miles (ed. New York. although they will increasingly have to act in a coordinated European framework based on common minimum standards. – Emmanuel Barbe. La documentation française. Third. A particular innovation is a provision allowing for the establishment of a European Public Prosecutor’s Office vested with cross-border prosecution powers. the Constitution enlarges the EU action possibilities in the areas of asylum. vol. DG Justice and Home Affairs: http://ue. Kluwer.

Security and Justice: http://europa.int/comm/justice_home/index_en.eu.europol.eu. DG Freedom.net/ – Eurojust: http://www.int/committees/libe_home. Committee on Civil Liberties.eu.eurojust.Chapter 22 – Commission.int/ 308 .htm – Europol: http://www.europarl.htm – European Parliament. Justice and Home Affairs: http://www.

309 . Security and Justice”. whereas the European Council of Seville (June 2002) re-emphasised the Member States’ pre-occupation with the combat of illegal immigration. The Vienna Action Plan (December 1998) and the special European Council on JHA of Tampere (October 1999) provided extra guidelines for the development of the “Area of Freedom. INTRODUCTION Compared with other policies of the EU. The third particularity of the field of JHA is that since the Treaty of Amsterdam * Head of Unit for the European Union. security and justice. which is mainly due to the particularities this policy area has. Firstly. Ministry of Interior and Administration. namely the 1985 Schengen Agreement and associated implementing acts. The acquis is accumulating rapidly. Department for International Cooperation. the rapid growth of the JHA acquis is another particularity of this policy area. As a result. JHA is one of the newest areas of cooperation within the EU: it was only the Treaty of Maastricht that brought JHA cooperation inside the EU structure.). A great surge in counterterrorism measures. political and judicial cooperation followed the terrorist attacks of 11 September in the United States. together called ‘the Schengen acquis’. turning the achievement of accession requirements into a moving target. etc. in the JHA area there is a wide range of legislative instruments coming from the first pillar (mainly regulations and directives) and the third pillar (framework decisions. The Treaty of Amsterdam (1997) enshrined the maintenance and development of an “Area of Freedom. Poland.Chapter 23 CHAPTER 23 IMPLEMENTATION OF EU JUSTICE AND HOME AFFAIRS IN POLAND Adam Dudzic* 1. Warsaw. Secondly. Security and Justice” as a central treaty objective of the EU and set a five-year deadline for the adoption of a series of measures. Justice and Home Affairs (JHA) policy requires specific attention in the implementation process. The next step in JHA acquis development was the adoption of the Hague Programme and the Action Plan to that Programme setting out the EU objectives till 2009 in the area of freedom. conventions. The Amsterdam Treaty integrated into the EU framework a substantial body of measures that had been developed outside the EU. Then. which implied significant temporary uncertainty as regards the exact nature of EU membership. massive changes in JHA cooperation were introduced by the Treaty of Amsterdam.

The fourth particularity that explains why JHA policy requires special attention in the implementation process is the ‘vulnerability’ of the “Area of Freedom. This process is governed by a separate two-stage procedure. makes JHA issues even more complex. This ‘vulnerability’ to individual non-performance together with the high sensitivity of the policy areas involved. This clearly shows the lack of trust and a need for ‘security measures’ among old EU Member States. The first stage commenced after the signature of the Accession Treaty with the EU and involves a period of close monitoring of the new Member State’s implementation of the Schengen obligations (so called ‘Schengen evaluation process’). All the above-mentioned particularities reasoned for a difficult negotiation process in the area. 310 . especially for such a big and specific country as Poland is. The duration of such measures may extend beyond the three-year period. will only enter into force after a separate and unanimous decision of the JHA Council. However.g. Security and Justice” to the failure of individual Member States to fully implement the acquis. which comprises full participation of the new Member State in the Schengen cooperation and most notably the lifting of internal border controls.Chapter 23 accession to the EU also implies accession to the Schengen cooperation. which deeply touch upon the question of sovereignty. considering the scale of the implementation tasks it is unlikely that internal border controls with Poland will be lifted at the beginning of 2006. In the absence of substantial EU involvement in the implementation of JHA policies. it should be mentioned that the Schengen part of the JHA acquis already contains several ‘safeguard mechanisms’. The second stage. which is the case of Poland. The full participation in the Information System (SIS II) – is only foreseen for the end of 2005. By way of comparison: it took other countries (e. upon a motivated request by any Member State or on the Commission’s initiative. Member States have to rely on the performance of each other’s national systems for implementing JHA measures. a safeguard clause may be invoked vis-à-vis a new Member State that fails to implement commitments. The unyielding position of the EU is further reflected by the endorsement in the Accession Treaty of a specific safeguard clause concerning the operation of the JHA areas. A new EU Member State after accession does not immediately participate fully in the Schengen cooperation. Moreover. The particularities of the JHA area explain also the relatively uncompromising attitude taken by the EU in the accession negotiations concerning this field. Italy and Greece) up to eight years after signature of the Schengen accession agreement before the decision to abolish internal border controls was taken. The EU Heads of States and Governments announced that monitoring would continue after the signature of the Accession Treaty. For a period of up to three years after accession. excluding the new Member State concerned partly or entirely from JHA cooperation.

The Committee was composed of the Chairman. the JHA area was not given any special treatment during the negotiation process. A very important function was the preparation of the Accession Treaty between 311 . the Ministers of the Economy. together with the Secretary of the Committee for European Integration (UKIE) and the Government Plenipotentiary for Polands Accession Negotiations to the EU. In conjunction with the above-mentioned persons. Agriculture and Rural Development. The Prime Minister chaired the Committee for European Integration. From an institutional point of view the following institutions were involved in negotiations and the acquis adjustment process in the field of JHA: Committee for European Integration (UKIE) The Committee for European Integration (UKIE) was established under the Law of 8 August 1996. both by the EU and Poland. Labour and Social Policy. the Secretary. The Negotiation Team was responsible for the formulation and implementation of the negotiation strategy. the Prime Minister adopted the guiding decisions relating to the negotiation process. In Poland the general structure for the negotiation process established was also used for negotiations on chapter 24. the Committee was charged with programming and coordinating the policy of Poland’s integration into the EU. The Government Plenipotentiary for Polands Accession Negotiations to the EU headed the Negotiation Team. As supreme organ of state administration. and Justice. The Council of Ministers approved the position papers prepared by the Negotiation Team and recommended to the Council of Ministers by the Committee for European Integration (UKIE). Chief negotiator A step towards the establishment of a formal and institutional basis for the Polish negotiation structure was the Decree of the Polish Council of Ministers of 24 March 1994 appointing the Government Plenipotentiary for Poland’s Accession Negotiations to the EU. Finance. The Negotiation Team consisted of nineteen members (negotiators). NEGOTIATIONS AND IMPLEMENTATION STRUCTURE Despite all afore-mentioned particularities. Internal Affairs and Administration. and the Ministers of Foreign Affairs. It was treated like any other chapter. including the elaboration of position papers and other necessary documents. and appointed personally by the Prime Minister. These were representatives from key ministries in the ranks of secretaries and undersecretaries of state. This structure was the following: The Prime Minister provided the political leadership of the negotiations and was supported by the Minister of Foreign Affairs. JHA. The tasks of the Plenipotentiary included the conceptual preparation and coordination of the negotiation process. In accordance with this Decree the position of the Plenipotentiary was filled by a secretary of state in the Chancellery of the Prime Minister.Chapter 23 2.

) 312 . o Revising draft negotiation instructions. o Minister of Foreign Affairs and Ministry of Foreign Affairs The Minister of Foreign Affairs was the Head of the Polish Delegation to the InterGovernmental Conference (IGC) on Accession. The team consisted of the Chairman of the Team and its Members who where in the rank of secretary or undersecretary of state and put forward by the ministries. The Minister and Ministry of Foreign Affairs also supervised diplomatic missions in the Candidate and EU Member States and therefore fulfilled a key role in coordinating foreign contacts and organising multilateral and bilateral meetings within the frames of the negotiation process and chief negotiators cooperation. because of the specificity and complexity of JHA area. o Preparing package deals on the basis of negotiation instructions. However. Negotiation team On 27 March 1998. the Plenipotentiary could present to the Council of Ministers legal acts regarding the scope of his work. In this respect. The Team was headed by the Chairman of the Team. In Poland the implementation of the acquis in the JHA area was mainly led by the Ministry of Justice. whose primary task was to prepare and conduct membership negotiations.Chapter 23 the Republic of Poland and the Member States of the EU and its negotiation on behalf of the government. which constitute an assessment of the degree of adjustment of Polish law to EU law. it is necessary to emphasise also the role of the Representation of the Republic of Poland to the EU in Brussels. The tasks of the Negotiation Team included: Formulating opinions on European Commission reports from the concluded screening sessions. General Inspector for Data Protection etc. the Government Plenipotentiary. they were nominated personally by the Prime Minister. Apart from that. Ministry of Infrastructure. The Plenipotentiary was authorised to present opinions on the drafts of legal acts and documents relating to the process of Poland’s membership negotiations with the EU. and the Office for Repatriation and Foreigners. Government Institutions involved in the accession negotiations When talking about the negotiation process the implementation structure plays a crucial role. the Police Head Quarters. Ministry of Health. with the Prime Ministers consent. many other government institutions were involved (Ministry of Finance. o Preparing and approving draft position papers of the Polish government. the Prime Minister appointed the Negotiation Team for Poland’s Accession Negotiations to the EU. the Ministry of Interior and Administration and supervised institutions like the Border Guard Head Quarters. o Preparing and approving responses to EU queries within the mandate resulting from the position papers. They managed lobbying activities and information flow contributing to the creation of a positive image of Poland’s accession negotiations. o Coordinating the entire negotiation process.

by specialised trained professionals. the functioning of the General Inspector for Personal Data Protection. This concerned mainly the following areas: The Schengen Action Plan. travel documents and provisions concerning the conditions of stay in Poland. which were also not implemented by the EU Member States at that time. especially as regards sufficient human resources and qualified staff. acceleration of court proceedings. especially as regards effective control of Poland’s borders. assignment of 80% of the newly recruited border guards to its future external border and gradual reallocation of 30% of its staff and equipment from the future internal borders to the external border. The initial Polish negotiation position of October 1999 was very simple. development and proper allocation of equipment. consular cooperation. THE OUTCOME OF NEGOTIATIONS The negotiations in JHA affairs were to some extent of ‘political nature’. The majority of the acquis. as amended by Regulation (EC) 2414/2001). including its international airports and seaports. including a system of legal aid. adequate and modern equipment. External borders. was still regarded as not satisfactorily implemented. there was actually not a large amount of JHA acquis. Visa policy. Poland simply accepted all JHA acquis including an exemption for three international instruments. effective access to justice.Chapter 23 3. Poland was to adopt the necessary provisions and put in place the necessary administrative structures in advance of accession. local border traffic agreements. properly equipped. especially with regard to the new visa regulation (Regulation (EC) 539/2001. employing 1325 new Border Guard officers each year till 2006. phasing out conscript officers. especially as regards the conclusion of readmission agreements with the Russian Federation and Belarus. with the powers to tackle border related crimes. which was considered to be implemented satisfactorily. in order to ensure effective implementation upon accession. customs and the prosecution service. especially as regards training of Border Guard officers. When the JHA chapter was closed in July 2002. Migration. reduction of the number of pending cases to avoid unreasonable delays and measures to ensure the adequate enforcement of judgments. 313 . however well advanced in transposition. The reform of the judiciary. The areas ‘ready’ for accession were only the following: reform and structure of the Office for State Protection. and the development of a system of training for the staff of Polish migration services. of military courts. cooperation between all national authorities working in the field of border security including police. provisions on personal data protection.

the allocation of sufficient funding for the implementation of the Schengen Action Plan. recruitment of staff for the Central Bureau of Investigation. reliable and fully coordinated police organisation. In this context. Other areas such as: fight against crime. on progress made in implementing the JHA acquis. cooperation and coordination between the police. the impact of the reorganisation of the customs. which would continue until accession.Chapter 23 Asylum. and the adoption and implementation of the National Drugs Strategy. Monitoring the progress in the adoption and implementation of the JHA acquis continued throughout the negotiations and until accession. The EU stressed that the implementation of practical measures as identified was essential in the run up to accession. as a matter of principle. Police cooperation. However. corruption. the EU recalled that the establishment of an independent. the construction of new border stations at the Eastern border. the implementation of the acquis for the purpose of accession could not be made conditional upon the EU’s financial assistance. the recruitment of border guards. The EU recalled that it is devoting significant resources to support JHA preparations in the candidate countries. Moreover. and fight against drugs. within a uniform and consistent framework. The EU therefore confirmed to continue to take the closest interest in the progress of Poland in both. especially as regards analytical and organisational measures for the active participation in EURODAC. terrorism. as well as peer reviews. the Strategy of Integrated Border Management and the reform of the judiciary. Reinforced monitoring would include increased coordination of all available information sources. Special attention was also given to Poland’s capacity to cooperate effectively with other States to implement the JHA acquis and to enforce it. and at least every six months. reliable and 314 . development of databases. Poland was invited to provide information to the Commission on a regular basis. the adoption and the practical implementation of the acquis in these areas. The EU underlined that it would devote particular attention to monitoring Poland’s implementation of its specific commitments regarding the EU’s visa policy. in particular as regards Poland’s adherence to its planned legislative schedule and further measures aimed at developing the institutional and administrative capacity of all Polish law enforcement authorities and of the judiciary. the prosecuting and judicial bodies as well as other competent agencies. asylum and migration policy. given the importance and complexity of the acquis under this chapter. the EU confirmed to reinforce the existing monitoring process. the EU underlined that. In this context. paying particular attention to Poland’s administrative and judicial capacity to implement and effectively enforce the acquis. money laundering. given the priority of this area. especially as regards accountable.

proper staffing and equipment. in March and September 2003 and their outcome was positive. The decision to close the JHA chapter was to some extent a ‘political’ one. appropriate equipment. IMPLEMENTATION PROBLEMS Poland had to effectively implement the acquis in every sub-area of the JHA acquis. It involved a firm mechanism of monitoring which included conducting so called ‘EU peer review monitoring missions’. Border protection One of the most important areas of implementation was the field of border protection and control. There were two such missions conducted in Poland. development of infrastructure. A fully professional. The EU emphasised the need for Poland to improve its overall administrative capacity. professional training. a final assessment of the conformity of Poland’s legislation and policies with the acquis and its implementation capacity could only be made at a later stage of the negotiations. Poland transposed the EU JHA acquis in all sub-areas but the most problematic ones seemed to be border protection and visa policy. A rudimentary characteristic of the powers as well as the methods and means of the formation’s activities is their police character. infrastructure. the definition of a state border and its course on land and sea.Chapter 23 efficient judiciary was of paramount importance. deployment of professional border guards. It must also be remembered that compliance with the requirements for EU membership in the field of JHA required substantial financial. training. in particular with regard to human resources policy. and the provisions on the abolition of checks at internal borders. did not have to be implemented upon accession. 315 . The Border Guard has been appointed by virtue of the 1990 act regulating the tasks. well-equipped and trained border service is an essential ‘tool’ of efficient realisation of tasks in border protection. as well as functioning international coordination at all levels. inter-institutional cooperation and introducing the mechanism of strategic planning. training of personnel. amongst others. This involved not only pure legal changes but also (or perhaps above all) achieving proper functioning standards. which are directly connected to the lifting of internal border controls. general principles of state border crossing and laws in force on the borderline. proper infrastructure and facilities for carrying out border checks and surveillance. creating new institutional framework. These involve the separation of “out-” and “in-Schengen” passenger flows at the international ports and airports. 4. socio-economic and socio-political challenges for Poland. the organisation and the scope of its authority. Implementing these requirements involved legislation on border management. equipment and the coordination between the relevant authorities. Those Schengen provisions. At the same time was also passed the Act on State Border Protection regulating. According to the EU.

amongst others. the external UE border in Poland is now protected by 62 organisational border units. during transit. on the border. hazardous. execution of evolutionary allocation of forces and means relevant to the alteration of the character of the border. – New legal instruments were introduced enabling amongst others operational control and the realisation of so-called controlled delivery. including radioactive. excise goods). and arms. – Achievement of tele-informational infrastructure standards allowing the utilisation of compilations and data bases with guaranteed appropriate information security consistent with Schengen principles. In total. – EU recommendations regarding border traffic controls were initiated including entries in the Schengen Common Manual. objects and substances through the border. The average extent of the protected section is about 22km. – A timetable regarding the process of making the Border Guard a professional force between 2003-2006 was prepared. including those pertinent to effective monitoring of foreigner inflow with controls before entry. Creating an advanced system of border protection became its primary goal. vehicles. The following activities were undertaken in order to improve the efficiency of border protection and to improve border traffic controls: – Adaptation of border protection standards to illegal migration threats and other border crime. materials. of adequately expanded border infrastructure. – Adaptation of the structure to the specific character of the tasks. modernised equipment and armament. fundamentally influenced the organisational. stay and departure. – The goals and directions of migration policies were defined. counterfeit detection of specific documents. – Achieving border traffic controls standards allowing for unrestrained movement of individuals and objects through borders in the EU framework in addition to effective employment of controls procedures compliant with EU regulations on the external border. The situation on the state border. Successive waves of illegal migrants. This system consisted. The effects of these activities were the following: – 18 new border patrol stations were included in the protection of the eastern section of the state border. legal and logistical alterations executed since 1991. in particular the massively increasing border crime at the beginning of the 90’s. including penetration of undesirable individuals. preventing wanted and undesired individuals from crossing the border and combating smuggling (narcotics. a cadre selection system and a training system.Chapter 23 From the moment of its formation the Border Guard was primary directed at: counteracting and combating illegal migration. – In 2002 a new model for professional training of Border Guard officials was 316 . rapid increase in contraband of certain goods and stolen vehicles as well as the progressing threat of organised crime prejudged the necessity for sealing the border and modifying the methods and means of the formation’s activity.

based on common historic. taking into account the integration of border protection and border traffic control services. initially scheduled for 1st July 2003 was postponed till 1st October 2003. vehicles with thermovision. cultural and language roots. portable thermovision cameras. The introduction of visa requirements for nationals of the Republic of Belarus. Belarus and Ukraine. belong to Polish organisations. They find their practical expression at present in lively cooperation in the social. reflecting a shared heritage and friendly interest in the lives of people on the other side of the border. cultural. armament. Accordingly. These persons identify themselves with the Polish nation. the introduction of visa-based travel must not create any barrier in mutual contacts.Chapter 23 introduced. In this respect. and also the current political considerations. which includes transport equipment. it was the objective of the concluded agreements on the movement of persons with eastern neighbouring countries to comply with EU standards while facilitating – wherever possible – the movement of persons and transfer of values. nor lead to their reduction. a uniform visa format. This general context of Poland’s relations with Russia. in line with the political guidelines. and in maintaining links between local communities and citizens. This view is fully in compliance with the principles of the EU’s visa policy. strengthen Poland’s interest in developing contacts with these states. During the negotiations on the agreements. educational and economic spheres. and maintain animated contacts with their country of origin. – Close contacts of Poles with their neighbours in the East have a centuries-long tradition. the Russian Federation and Ukraine. Poland had to take into account the historic context of the relations with its eastern neighbours. – Bilateral contacts with border services of Member States were developed. specialised technology. Visa Policy The abolition of internal border controls within the Schengen context made it necessary to harmonise Poland’s visa policy in order to avoid ‘visa shopping’ by third-country nationals. – The tele-informational network has been expanded. the 317 . The Polish state also feels responsible for their fate and for nurturing their ties with Poland. Since the end of 2003 all Border Guard units have access to an extensive network and all data bases are administered by the formation. According to the Polish authorities. computer and specialised equipment for border traffic controls. communication. cultivate Polish traditions and language. – The modernisation of Border Guard equipment was executed. and provisions as regards the issuing of visas and their fees. which is fully implemented by Poland. observation means and vessels. These include: – The presence of several million persons of Polish origin who found themselves outside Poland as a result of World War II and the stormy relations of Poland with Russia and the former Soviet Union. This harmonisation concerned primarily the lists of countries whose nationals needed entry visas (‘negative list’) and whose nationals did not (‘positive list’).

thus demonstrating Poland’s firm commitment to the broadest possible implementation of the relevant European solutions. diplomats (with the exception of those delegated to work on the territory of the other state). There will be no requirement of transit visas for nationals of Belarus. security and justice” is a hard one but at the same time successful. due to the pressure of the EU in the perspective of enlargement these reforms had to been done much quicker. and also for persons visiting the graves of relatives. Sooner or later. These included accelerated processing of visa applications by businessmen. and participants in exchanges at state and self-government levels. and also the granting of multiple visas to railway workers. the Russian Federation and Ukraine possessing visas or a right of residence in Schengen states. However. in anticipation of its impending accession to the Schengen Group. persons granted temporary or permanent right of residence in the other country. without the obligation of submitting invitations. The concluded agreements incorporated a number of solutions. The agreements with the neighbours in the East envisaged that in principle travel required visas. A departure from this rule is contained in the agreement with Ukraine. crews of rescue aircraft. Poland had to reinforce the whole system of internal security including the strengthening of the Police. 318 . An important provision envisages charge-free visas for youth and the elderly. compatible with EU law and designed to enhance economic and social contacts. truck drivers. and for Poland nationals travelling to their country of destination through the territory of Belarus or the Russian Federation. which provides for visa-free travel by Polish nationals and charge-free issuing of visas to Ukrainian nationals. educational. the agreement with Russia grants Polish nationals and the inhabitants of the Kaliningrad Oblast multiple. Poland would have probably done these reforms as part of a normal process in a democratic society. persons travelling in family emergencies. Regarding travel to and from the Kaliningrad Oblast of the Russian Federation. At the same time. This formula was welcomed by the public opinion of both states. the Border Guard and other law enforcement bodies as well as cooperation between them.Chapter 23 Polish side sought to retain the principle of identical treatment of all partners without agreeing to excessive claims concerning the easing of visa conditions. sports and scientific-technological events arranged at various levels of cooperation. teachers and students taking part in school exchange programs. CONCLUSIONS Poland’s way to the European “Area of freedom. Polish proposals for similar solutions in relations with Belarus and Russia were however not accepted. 5. The adopted regulations abolish visa requirements for the crews of civilian aircraft and sea vessels. charge-free visas. the Polish side adapted certain Schengen provisions. members of official delegations and working groups. participants in cultural.

Romania managed to officially close negotiations on chapter 24 on Justice and Home Affairs in December 2004. Center for Urban and Regional Sociology – CURS SA. Associate Professor. Romania. Political Sciences Department. 319 . Managing Director. First. Romania has fully transposed the EU legislation and policies required in the field of Justice and Home Affairs. University of Bucharest.Chapter 24 CHAPTER 24 IMPLEMENTATION OF EU JUSTICE AND HOME AFFAIRS IN ROMANIA Sebastian Laurenþiu Lãzãroiu * 1. Particular attention should be paid to: * Lecturer at the Department of Sociology. National School for Political and Administrative Studies – SNSPA. it is situated at the crossroads of two major routes of world migration: East-West and South-North. Complementary to the Schengen Action Plan. Bucharest. Romania also succeeded to strengthen the existent institutions and to create the necessary administrative capacity. Romania. Second it has a long eastern border with the Republic of Moldova and Ukraine. INTRODUCTION Justice and Home Affairs was one of the most difficult chapters in the process of negotiations for EU membership. which may delay Romania’s accession until 2008. which will become an external EU border after Romania’s accession to the EU. In accordance a series of actions need to be taken in order to stick to the initial calendar for Romania’s accession to the EU (January 2007) and to avoid the activation of the safeguard clauses. Romania adopted the National Strategy for Integrated Border Management 2004-2006 and the Strategy for Securing the Romanian Border 2004-2007. considerable effort is still needed as regards the effective implementation of Justice and Home Affairs related policies. 2. The negotiations in this chapter dealt with very sensitive issues such as the reform of the judiciary. In spite of significant progresses that have been made during the last four years there are still serious difficulties of effective implementation related to administrative capacity and infrastructure. However. the necessity to adopt strong and efficient anti-corruption measures and the obligation to secure the borders in order to align to the Schengen acquis. SCHENGEN ACTION PLAN Romania has a strategic geographical position in the future context of European Union.

Romania respects the EU requirements with the exception of the Republic of Moldova. EU LEGISLATION ON DATA PROTECTION The Ombudsman office is the national authority in charge with personal data monitoring and control processing. anticipative steps should be made in order to prepare the country for the years after accession when a significant number of immigrants and asylum seekers is to be expected. A unique authority that might take the lead or the role of coordination 320 . As the Romanian potential for migration is still high (up to 15% of the adult population would like to seek work abroad) more efforts should be made to strictly control irregular migration and to comply to exit criteria for Romanian citizens. it is a source of migration for more developed western countries.483 agents and border police officers filling vacancies up to 100% especially at the border with Ukraine. 3. Therefore. visa regimes for Russia. All the acquis concerning data protection has been correctly transposed. Turkey and Serbia are not fully in line with the Schengen acquis. which is going to be included into the ‘negative list’ at a date close to accession due to the special relations Romania has with this country. In this sense the Ombudsman office needs more financial and human resources in order to function efficiently and to secure its independence. 5. Turkey. Ukraine. with different or overlapping responsibilities. The National Office for Foreigners needs to create new specialised positions and the existent personnel should pass through a training process. More financial resources should be allocated to this institution. As regards the ‘negative list’. and the Romanian seacoast border and to strengthen cooperation with third countries.Chapter 24 Increased efforts to improve equipments and infrastructure at the future external border. EU VISA POLICY Romania is now fully aligned to the EU ‘positive visa list’. 4. the Republic of Moldova. mainly because of the lack of financial resources and administrative capacity. Serbia and Egypt. Accelerated recruitment of 4. EU MIGRATION POLICY Although Romania is not yet a destination country for traditional international migration flows. but there are still important gaps at the level of implementation. There is still a need to fill in about 30% of vacancies. However. An online visa system has already been set up which is linking the Office for Foreigners with consular missions in Russia. Migration issues are dealt by different institutions.

Chapter 24 should be considered in the future. 7. This institution has effectively cooperated with relevant NGOs and the United Nations’ Refugee Agency (UNHCR) in order to implement programmes in different areas of reception and integration. more attention needs to be paid to integration programmes which aim to encourage access to education for minors. Cooperation between the police and the judiciary should be improved as well as cooperation between the national police and counterparts in neighbouring countries. Trafficking in human beings is still a serious issue. Although the public order system in Romania is dual (Police and Gendarmerie) a decision should be made whether to maintain both institutions or to eliminate overlapping responsibilities. 321 . enhance skills of refugees and immigrants and help to prepare their entry into the labour market. 6. Effective decentralisation and delegation of responsibilities to the regional and local level are immediate priorities of the reform. There is still a need for supplementary programmes for all personnel involved in asylum procedures and integration of refugees. POLICE COOPERATION AND FIGHT AGAINST ORGANISED CRIME Significant reforms have been taken in Romania’s police system. Many victims still come from Romania and Romania is a transit country for transporting victims of trafficking from Moldova and Ukraine. In the past. However. This perception led to ignoring the integration problems of existent immigrants and refugees. Recruitment and development of human resources should be based on merit promotion and encouraging career police officers. especially in the case of Gendarmerie. There is also a need to fill around 7000 vacancies in the police forces in order to strengthen their capacity. the reform process is far from being accomplished. More efficient and short training programmes for the new recruits should be put in place. the general view was that Romania is more a transit country for immigrants. In accordance. facilitate the recognition of their diplomas and fight discrimination in the labour and housing market. EU ASYLUM POLICY The National Office for Refugees is the authority in charge with all asylum issues. Romania should also continue to appoint liaison officers and internal attaches to diplomatic missions in order to fight irregular migration. Organised crime departments should pay more attention to these cases and treat them according to international standards and adopted national legislation already in place.

All in all one might say that anti-corruption legislation is in place. it is not implemented rigorously. New institutions have been created since 2002: the National Anti-Corruption Prosecutor (2002). there are justified concerns that these institutions are not totally independent from politics. More 322 . 9. and the Superior Council of Magistrates. however. Only recently national customs authorities have succeeded significant captures of drug loads at Romania’s eastern and southern borders. human and training resources need to be allocated to the national Anti-Corruption Prosecutor in order to make it function efficiently and independently from any political influence. High-level corruption should be the focus and cases of corrupted officials should be immediately revealed to the general public. The National Corruption Strategy was adopted and audited in 2005. Corruption at custom points is still a problem and needs to be tackled with more than just internal disciplinary measures against custom officers. which is working in connection with OLAF (2004) and the Department for Fighting Organised Crime and Corruption (2004). There should be also an increase of public awareness about the consequences of corruption at the macro and micro levels of the society. especially in the sector of drugs transit. JUDICIAL COOPERATION The reform of the judiciary is also crucial in order to stick to the agreed calendar of accession to the EU.Chapter 24 8. However. Corruption might be one of those issues. CUSTOM COOPERATION Efforts are still necessary as regards the work of the relevant customs authorities. the Office for Fighting Community Frauds. which can possibly delay the accession of Romania to the EU. FIGHT AGAINST FRAUD AND CORRUPTION Corruption is still an important issue that Romania is facing since 1990. More financial. government officials and civil servants were changed in 2005 in order to promote more transparency. The Superior Council of Magistrates should be given more power as to secure the independence of the justice system from political and economic intrusions. Obviously they have not been able to accomplish their tasks properly especially in cases of corruption of high officials. The declaration of assets and interests of the Members of Parliament. Significant steps have been made just recently to change the laws concerning the status of magistrates. There is an acute need for cooperation between custom authorities and commercial companies for fighting trafficking in drugs. the organisation of the judiciary. 10.

Chapter 24 financial resources and training programmes should be designed to strengthen the institutional capacity. 11. the reform of the judiciary and measures aiming at securing Romania’s eastern border. The declarations of assets and interests were already implemented for all the personnel functioning within the justice system. These budgetary reinforcements have to be accompanied by concentrated political efforts to accept and endorse all necessary measures in the field of Justice and Home Affairs. 323 . CONCLUSION The most critical aspects that still need to be tackled by the Romanian authorities in order to be ready for EU membership are undeniably the fight against corruption. The Romanian government took note of the signals coming from the EU and allocated supplementary funds to the relevant institutions dealing with those central issues: the Ministry of Justice and the Ministry of Interior and Administration. but they need to be monitored by an independent organism.

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SECTION 9 EU TRADE AND DEVELOPMENT POLICY .

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CHAPTER 25
EU EXTERNAL TRADE AND DEVELOPMENT POLICY
Bart Kerremans and Jan Orbie*

1. TRADE AS A COMPOSITE POLICY “(..) trade has become pervasive, touching almost all aspects of EU policy, both internal and external”1
With this observation, Martin Holland points at the wide significance of trade policy in the European Union. Trade touches indeed a wide range of aspects of EU policy and of EU society. One factor in this evolution is that, as trade liberalisation proceeds, it not just affects cross-border issues, but behind-the-border ones as well. These may range from product regulation to social and environmental rules. Obviously, the latter may be politically very sensitive. Indeed, because trade policy increasingly affects behind-theborder issues, it is increasingly affected by fundamental societal choices, and thus prone to become the subject of intensive, often polarised, political debate. It is in this context that one has to look at the EU’s external trade and development policy. At first sight a technical issue, it is one that has been politicised increasingly, especially during the last ten years. Consequently, those political actors that play a central role in this policy field need to do so under often severe political constraints and under the ever more critical scrutiny from societal groups. The EU’s trade policy has an autonomous and an external dimension. The autonomous dimension consists of the trade remedies that the EU can use as part of what is called “contingency protection”, that is, the protection against certain contingencies. Three such contingencies stand out: dumping, subsidies, and rapidly rising imports. The protective measures against these three consist of respectively anti-dumping measures, countervailing measures, and safeguard measures. In addition to these trade remedies, unilaterally granted preferences are also part of the EU’s autonomous trade policy. In practice, it concerns the EU’s Generalised System of Preferences (GSP). As far as its external dimension is concerned, the emphasis is on the EU’s actions as a negotiator in the international trading system. Such a role is played in the first place in the context of the World Trade Organisation (WTO), where the EU has become an
*

Bart Kerremans, Associate-Professor (Hoogleraar) of International Relations and American Politics at the Catholic University of Leuven, Belgium. Jan André Orbie, Research Assistant of the Fund for Scientific Research (Flanders, Belgium), Department of Political Science, Gent University, Belgium. 1 Marc Holland, The European Union and the Third World, Houndmills, 2002, Palgrave, p.140. 327

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important player. But besides this multilateral role, the EU is also an active bilateral player. This has resulted in a broad array of bilateral (or inter-regional) preferential agreements. With these agreements, the EU created a so-called pyramid of preferences in which different groups of countries enjoy preferential access to the EU market, up to the level of free access for a wide range of goods, in the first place industrial products. In this chapter, we will take a brief look at different important components of the EU’s external trade and development policy. We start with a short observation on the reasons why there is such a policy in the first place. One could call this the “demand side” of its external trade and development policy. We proceed then with a look at the capacity of the EU to “deliver” an external trade and development policy. First, attention will be paid to the legal part of this capacity, i.e. to the treaty provisions and the way in which they have been interpreted. Second, attention will be paid to the way in which the negotiating process operates in practice. We will see that when looking at the question of the “capacity to act”, one has to look at the countervailing impact of the “need for control” as well. The third and final component of this chapter will consist of the output, the “supply side” of the EU’s external trade and development policy. We will briefly look at the multilateral dimension, and more precisely at the EU’s current role in the WTO. Subsequently, a look will be taken at the EU’s pyramid of preferences and the ‘raison d’être’ of this pyramid. Last but not least, attention will be paid to the development component in the EU’s external trade policy, more specifically to the most important (or extensive) part of this component: the relationship of the EU with the ACP countries.

2. THE DEMAND FOR THE EU’S EXTERNAL TRADE POLICY
Three factors can be distinguished to explain why a certain demand exists for the EU to develop an external trade policy. The first one is related to internal developments in the EU itself. As the EU was created as a customs union, it needed to provide for a system to negotiate about its common customs tariffs with third countries and to develop a range of policies in this regard. With the gradual introduction of the common customs tariffs, which was finalised in 1968 for industrial goods and in 1970 for agricultural goods, the EU also started to act as an international player on these issues. Further European integration equally inextricably entailed an expansion of the EU’s external agenda. Preserving the commonality of the EU’s internal rules and legal order required indeed that it was enabled to negotiate about such issues with third countries as well. From a legal point of view, the European Court of Justice (ECJ) came to this conclusion in its ruling in the ERTA case (case 22/70). In this ruling, the ECJ developed the reasoning of “in foro interno, in foro externo”, referring to a parallelism between the expanding scope of internal EU competence and related regulations, and the concomitant expansion of the scope of the EU’s external activities, be it under certain conditions. Indeed, as has been elaborated in later rulings and opinions, internal competence can only lead to external competence for the EU in case the latter is necessary to achieve the objectives set out in the treaties, or to safeguard the commonality of the acquis communautaire. In such cases, the external competence of
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the EU becomes an exclusive one. This means that it concerns a competence that is not being shared with the Member States. This parallelism between internal and external competence, and thus between the scope of the internal acquis and the one of the EU’s external activities only tells part of the story however. As the EU has been growing economically and has been expanding its membership continuously, its market has become a very important outlet for a growing range of third countries. The following table provides an indication as it points at the trade dependence of several countries on the EU.

Last but not least, the demand for the EU’s external trade policy is triggered by its importance in the international trading system in general. As a matter of fact, the development of the EU itself has taken place in parallel – even if not in direct relationship – with the multilateral trading system, and more precisely the GATT and the WTO. Today, as the following table indicates, the EU (measured by its extracommunity trade) provides for an important part of world trade. As a consequence, it enjoys a lot of potential market power in the World Trade Organisation, which intensifies both the incentives and the external pressure for it to develop an effectively operating external negotiating machinery, and an external trade and development policy that respects the rules of the multilateral trading system. Indeed, the credibility of these

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multilateral rules largely depends on the extent to which the “great trading powers” such as the EU and the US abide by these rules themselves. The table above provides the figures for the former EU fifteen Member States and for trade in goods. The figures for the current EU of twenty-five Member States are about two percentage points higher. As far as trade in services is concerned, the share of extracommunity trade in world trade amounts to 24.7%.

3. THE EU’S CAPACITY TO DELIVER TRADE AND DEVELOPMENT
Given that there is a demand for an EU external trade and development policy triggered by the EU’s internal developments, the externalisation effect of these developments, and the EU’s market power in the world trading system, does the EU have the capacity to respond to these demands in an effective and efficient way? This question brings us to two issues. First the legal framework within which the EU needs to develop these policies, and second, the way in which the EU decision-making system on trade operates.

3.1. The Legal Framework
The basis of the legal framework is provided by both the EC’s legal personality and the treaty provisions that provide it the competence to develop an external trade and development policy. The former is provided by article 284 TEC. This means that whereas the European Community legally has the capacity to act as a legal person in the international realm, the EU doesn’t have that capacity. Thus legally, it is not the EU but the EC that acts on international trade. The basis of the EC’s competence to act on trade is provided by article 133 TEC. The one in relation to development is provided by article 177 TEC. Article 133 TEC is part of Title IX of the EC Treaty, which is the Title that deals with the EC’s common commercial policy. Title IX consists of four articles. From the perspective of the EC’s external trade relations, article 133 is by far the most important one. Basic provisions on EC trade policy The first of these four articles – article 131 TEC – puts the EC’s common commercial policy in the wider perspective of the establishment of a customs union among the EU Member States. By establishing such a union, the Member States not only committed themselves to the removal of the tariff barriers among themselves (as stated in articles 3 par. 1(a) and 25 TEC).2 They also committed themselves to a uniform and joint commercial policy vis-à-vis the rest of the world. The two adjectives are important here.
2 The Member States equally accepted the prohibition of quantitative import and export restrictions among themselves (see articles 28, 29 and 30 TEC).

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They first committed themselves to a uniform commercial policy meaning that the commercial policies of the member states would be largely harmonised through one EC commercial policy, through a Common Commercial Policy. They also committed themselves to a joint commercial policy, meaning that they would act jointly in their trade relations with the rest of the world. What is the competence of the EC to negotiate international trade agreements, be they bilateral, plurilateral, or multilateral? Article 133 TEC provides the answer. Paragraphs 3 to 7 of that article provide for the decision-making procedures whenever the EC wants to conclude such agreements and engages in negotiations with that purpose in mind. They equally provide for the scope of the EC’s exclusive competence in this regard. The basic structure of the decision-making process under article 133 consists of the following successive parts: The Commission makes a recommendation to the Council about the opening of negotiations; The Council authorises the Commission to open such negotiations; The Commission negotiates on behalf of the EC and in close consultation with a committee of Member States’ representatives; The Commission concludes the negotiations; The Council decides whether the agreement will be signed; The Council eventually approves the agreement on behalf of the EC. Such an approval is equivalent to ratification by the EC. Important in this procedure is the possibility for the Council to issue negotiating directives, which the Commission needs to respect in its negotiations with third countries. The Council doesn’t have to do that. It may choose to do so. What the Council needs to do before negotiations can be opened is authorising the Commission to open them. A mandate is thus optional, not mandatory. This fact has a number of consequences for both the Commission and the Member States, and especially for the special committee to which article 133 refers. The role of that committee becomes much more important in situations where no mandate has been adopted by the Council. We will deal with this aspect of the decision-making procedure later. Here it is important to notice that this special committee is better known as the Committee 133.3

The EC’s competences in the field of trade policy For all trade-related issues that fall within the scope of the EC’s exclusive competence, the Council decides by qualified majority.4 This is the case for the authorisation of negotiations, for the authorisation of the signing of the agreement, and for the ultimate approval (ratification) of an eventual trade agreement. The question is then: what falls within the scope of the EC’s exclusive competence on trade? The answer to this
3 As a matter of fact, the Committee 133 meets monthly at its titulaires level, and weekly at its deputy level. Besides

that the following specialised Committees 133 exist as well: steel products, textiles, and services.
4 This means that in the EU-25, 231 of the 321 votes available are required to adopt a decision, on the condition that

minimum 62% of the EU population is represented by that QMV as well. More importantly, from a practitioner’s point of view however, is the blocking minority. In the EU-25 90 votes are needed to form such a minority. 331

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question is far from easy. Originally, article 133 largely applied to trade in goods. Almost all international trade agreements were limited to trade in goods, so the question of the scope of article 133 did not really materialise.5 With the expansion of the negotiations within the framework of the GATT to trade in services, and to intellectual property rights in the eighties and nineties, the question was pushed to the forefront. At the end of the cycle of multilateral trade negotiations within the GATT in 1993, called the Uruguay Round, the question did arise. It was through an opinion from the ECJ (Opinion 1/94) that at least some clarity was created in this regard. This didn’t stop the debate, rather the contrary. Proponents of a larger scope – especially the Commission – faced the proponents of either the status quo or a narrowing down of the scope. As a consequence, during two consecutive negotiations on treaty revisions,6 the scope of article 133 was on the table, as it also was during the Convention and the subsequent negotiations on the Constitutional Treaty (2003-04). In the amendments to article 133 that have been enacted since Opinion 1/94, efforts have been made to define the scope of article 133 in relation to trade in services more precisely. In this effort, the principle that trade in services cannot in principle be excluded from the scope of article 133 is being recognised as it is for the trade-related aspects of intellectual property rights. This is made clear by the way in which paragraph 5 is formulated. In the first indent of that paragraph, reference is made to paragraphs 1 to 4 of article 133 that cover trade in goods and – in the philosophy of Opinion 1/94 – parts of the trade in services and trade-related intellectual property rights. “Paragraphs 1 to 4 shall also apply to the negotiation and conclusion of agreements in the fields of trade in services and the commercial aspects of intellectual property, in so far as those agreements are not covered by the said paragraphs and without prejudice to paragraph 6.” Paragraph 6 (cf. infra) contains a number of restrictions on the extent to which trade in services may be considered to belong to the EC’s exclusive competence. In the remainder of paragraph 5, the scope of the QMV is restricted as far as trade in services and the commercial aspects of intellectual property rights are concerned. First, unanimity is required whenever such agreements include provisions for which unanimity is required for the adoption of internal rules. Second, unanimity is required as well, in case such agreements contain provisions on issues on which the EC has not yet exercised the powers conferred upon it by the EC Treaty by adopting internal rules. This means that in case international agreements on trade in services and the commercial aspects of intellectual property provide for the initial legislation on such issues in the EC, they need to be adopted unanimously by the Council. In addition – and a little bit strangely – the last indent of paragraph 5 secures the right of the Member States “(..) to maintain and conclude agreements with third countries or international organisations in so far as such agreements comply with Community law and other relevant international agreements.”
5A

question that did arise and that has been referred to above concerned the trade policy instruments covered by article 133, not its material scope. 6 The one resulting in the Amsterdam Treaty, the second in the Nice Treaty. 332

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As has been indicated above, paragraph 6 of Article 133 TEC – to which reference is made in paragraph 5 – contains a number of restrictions on the extent to which trade in services may be considered to belong to the EC’s exclusive competence. First, it defines a number of services that belong to the competence shared between the EC and its Member States, and thus not to the exclusive competence of the former. It concerns: Trade in cultural and audiovisual services; Trade in educational services; Trade in social services; Trade in services related to human health. Second, it clearly links the scope of the EC’s external powers on trade in services and the commercial aspects of intellectual property rights with those of its internal powers, and stresses this not just for the issues that can be dealt with, but also for the kinds of measures that can be adopted. “An agreement may not be concluded by the Council if it includes provisions which would go beyond the Community’s internal powers, in particular by leading to harmonisation of the laws or regulations of the Member States in an area for which this Treaty rules out such harmonisation.” Third – and in line with the Court’s reasoning in Opinion 1/94 – paragraph 6 states that “the negotiation and conclusion of international agreements in the field of transport shall continue to be governed by the provisions of Title V and article 300”. Title V of the EC Treaty deals with the EC’s transport policy, whereas article 300 sets the rules for cases where the EC’s internal powers allow it to negotiate international agreements. Last but not least, article 133 TEC contains a provision that allows the Council to extend its scope to international negotiations and agreements on intellectual property “in so far as they are not covered by paragraph 5”. For such a scope extension, unanimity in the Council is required. The Council may do so case-by-case, or may decide to extend the scope in more general terms. In the latter case, decisions on concrete international negotiations and agreements covered by that extended scope could be adopted by QMV. Given the reference to the “commercial aspects of intellectual property rights” in paragraph 5, the scope extension provided for in paragraph 7, would bring other-thancommercial aspects of such rights within the scope of the EC’s exclusive external competence. As can be concluded from the above, article 133 is pretty complicated. In the negotiations on the Treaty establishing a Constitution for Europe, a genuine effort has been made to simplify (or at least to clarify) matters, this in article III-315. However, given the referenda in France and the Netherlands (May 29 and June 1, 2005 respectively), the Constitutional Treaty is in jeopardy, at least for now, meaning that the EU will continue to operate in the area of external trade on the basis of article 133 TEC, however complicated that may be.

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and the Committee 133 (see figure below). to a certain extent. Indeed.Chapter 25 3. These need to fulfil a number of roles therefore. the Council. each of the Member States tries to exert control on the EU’s external trade and development policy. They also need to 334 . The Commission thus needs to be able to anticipate the way in which the Council is going to react to the deals that it concludes. the more inclined the Member States tend to be to maximise their control. one needs to pay attention to a fundamental tension between the “capacity to act” and the countervailing “need for control”. The Decision-Making on External Trade When looking at the EU’s decision-making on external trade. and the Committee 133 members are supposed to control the Commission during the process. this triangular interaction is essentially important for reasons of predictability. Indeed. It is no use for the Commission to negotiate an external trade agreement in case the outcome is not going to be accepted by the Member States and thus. From the perspective of the Commission. and that price is a reduced capacity for the EU as a whole. They need to act as a watchdog that controls what the Commission is negotiating and the kind of concessions it is in the course of making. In the EU’s decision-making on external trade negotiations. But control comes at a price. the Council needs to approve the outcome. one could claim that the more each Member State is able to exert control on the way in which the EU’s external trade policy is shaped and conducted. And the members of the Committee 133 are supposed to be helpful in that. and the more such policy touches on sensitive issues in society. by the Council. the centrally important component is provided by the interaction within the triangle between the Commission. the lower the capacity for the EU as a whole to act decisively and proactively in the international trading system. we need thus to look beyond the legal framework.2. In looking at this potential tension between capacity and control. Whereas the Commission negotiates externally (either in the presence or the absence of the Committee 133 members).

and plurilateral agreements. 4. to reduce the probability that their respective governments are going to reject the agreement. Since agriculture became part of the trade agenda during the Uruguay Round (1985-’93). 335 . and this may lead to a situation where the Commission is not that open in its communication with the Committee 133 members. It is to this output that we turn now. But Europe’s insistence on a broad trade agenda also has a strategic objective. and by doing this. But one thing is important. For negotiating-strategic reasons. Kennedy. Their role is therefore also. Indeed. THE OUTPUT OF THE EU’S EXTERNAL TRADE POLICY 4. the EC has been able to conclude a wide array of bilateral. which basically argues that global trade liberalisation should go hand in hand with global rules. This may be the case because the EU tends to be a leaking system in which secrets are difficult to keep. and to participate in the conclusion of multilateral ones. The EU played a major role in the launching of the current ‘Doha Development Round’ (2001). In operating in this way. But also important is that they need to act as transmitters towards their own national administrations and political leaders. to explain that rationale in their home country. This brings us to the Achilles heel of Europe’s position on the international trade scene. following the ‘European model’. they are supposed to understand the rationale behind concessions that are being made. as that helps the former to know how the Member States are going to react to different possible outcomes.Chapter 25 act as a soundboard for the Commission.1. Tokyo and Uruguay Round) of multilateral trade talks. Managing this triangular relationship is not easy. The Commission can never completely close the communication as it has an interest in the Committee 133 members being able to expect and anticipate the negotiating outcomes and thus. it has to provide for an outcome the costs and benefits of which are distributed in such a way that for no Member State a reason exists to reject it. Doing so is not always easy as the Commission may be sometimes in the position where it increases the pressure on the Member States by confronting them with concluded package deals. For strategic reasons. The multilateral track Since the beginning of the nineties the European Union has evolved from a rather defensive actor to a champion of the multilateral WTO regime. But even then. since it allows the Commission negotiators to compensate the inevitable ‘losses’ in agriculture for ‘gains’ in other policy domains. it may be important for the Commission not to inform the Committee 133 members completely about what it is doing as external negotiator. such secrets may be important however. as the Committee 133 members are more or less involved in the external negotiating process. to prepare their respective governments for the possible political turmoil that may come with these. Europe’s plea for a comprehensive WTO round fits within its ‘harnessing globalisation’ discourse. whereas the US has become more reluctant than during the previous rounds (Dillon.

government procurement and trade facilitation. compared with the ‘Singapore issues’.Chapter 25 Europe’s rather protectionist Common Agricultural Policy (CAP) has been a major target for many developed and developing countries. it has a major interest in the negotiations on services within the General Agreement on Trade in Services (GATS) framework. But even here. the Union finally agreed to eliminate all export subsidies. tourism. In terms of market access. Moreover. albeit without specifying a timetable. major trade frictions may be expected in the domain of domestic (‘Green Box’) subsidies. although many would notice that the ‘decoupling’ has not yet materialised and that domestic subsidies continue to distort agricultural production. transport. Europe’s international trade discourse explicitly focuses on the benefits for developing countries. some parts of the agricultural lobby (e. Finally. This role as a mediator between the North and the South works particularly well in subjects that mainly affect US economic interests. bilateral and unilateral (see below on bilateral free trade agreements and on ‘Everything but arms’) levels. financial. Here the Union forcefully argues that the ‘multifunctional’ nature of its agricultural sector (rural development. the EU more explicitly excluded negotiations on public services (education. energy and environmental services. sugar refineries) have interests in a more open market system.g. Internal budgetary constraints (e. These include the so-called ‘Singapore issues‘ of investment. food safety. enlargement) as well as the possibility of WTO rulings after the ending of the ‘peace clause’ (e.g. such as the highly politicised disputes on TRIPS (compulsory licensing of generic medicines) and cotton 336 . With agriculture and services being part of the ‘built-in agenda’ after the Uruguay Round. although the idea of discussing international labour standards within the WTO trade regime appeared less prominently in Europe’s priority list. animal welfare…) justifies EU funding. Faced with protracted opposition from developing countries and reluctance from the US. The EU argument to deal with environmental concerns within the WTO framework only resulted in the rather noncommittal intention to look at the relationship between existing WTO rules and specific trade obligations set out in multilateral environmental agreements. A similar picture can be made for the idea of a ‘social clause’. Europe has lowered its tariffs at the multilateral (WTO). health and audio-visual services) and stressed the exceptions and advantages for developing countries. the sugar panel) have contributed to this steady (but slow) evolution.g. the Union ultimately agreed to drop the first three issues from the Doha Agenda. the Union attempted to put several new and trade-related topics on the negotiating table of the WTO. The Union’s ‘requests’ and ‘offers’ during the GATS negotiations include telecommunication. In the future. Today the EU is already the world’s largest exporter and importer in services. a more offensive and liberalising EU stance can be noticed. In the so-called July Package (2004) of the ‘Doha Development Round’. legal. competition. After the Commission’s leaked proposals became heavily politicised in 2003. While agriculture remains the Union’s most difficult international trade issue.

4. Only the leastdeveloped countries continue to receive unilateral (non-reciprocal) access to Europe’s market under the ‘Everything but arms initiative’7. South Africa. Because of the preferential treatment for these ‘spokes’ as well as further economic integration within the European ‘hub’. the EU revealed itself as a major supporter of further liberalisation within the WTO framework. Most ACP countries belong to the latter category. Together with the non-Member States in the near abroad. there are conflicting interests between the larger and exportoriented countries (G20 countries such as Brazil. This FTA activism also illustrates the competition with others (especially the US) for access to strategically important markets. Europe’s new trade arrangements can be considered as ‘WTO+ agreements’. Unlike the non-reciprocal Lomé regime.g. except for arms. Thailand.2.Chapter 25 (dumping because of US subsidies). strategic and foreign policy considerations. temporary movement for computer service providers from India) and requests (e. these former colonies used to appear at the top of Europe’s preferential pyramid of bilateral trade relations. China) and the most vulnerable developing countries. In addition. Until the nineties and contrary to America’s multilateral focus. Chile. Europe’s scheme of existing bilateral trade relations is increasingly (re)structured in conformity with the WTO article XXIV requirements on free trade agreements (FTAs). Europe’s commitment to multilateral trade liberalisation could long be called into question. The EU also stresses the advantages of its GATS offers (e. 337 . it became clear that fears for a protectionist ‘Fortress Europe’ were exaggerated. in combination with externalisations of successive enlargements.g. as well as the importance of ‘special and differential treatment’. EFTA/EAA. Importantly. this agreement will establish free trade agreements (so-called Economic Partnership Agreements or EPA’s) between the EU on the one hand and six ACP regions on the other. On the contrary. South Africa and (in the near future) Mercosur and the Gulf Cooperation Council. Ad hoc and piecemeal responses to historical. At the end of the nineties. The European Union is also engaged in free trade agreements with the Maghreb and Mashrek countries as well as with developing countries such as Mexico. for example in the agricultural negotiations. however. agreements with Maghreb/Mashrek countries). Many topics that the Union attempts to introduce at the multilateral WTO 7 An agreement by which the EU concedes 0 tariff to Least Developed Countries for all export products originating from those countries. Europe has established a complex web of bilateral and preferential trade arrangements. It should also be pointed out that. Argentina. have resulted in the so-called ‘spaghetti bowl’ of EU trade relations. The shift to agreements that establish reciprocal liberalisation of ‘substantially all’ trade manifests itself most clearly in the Cotonou Agreement (2000) with the ACP countries. European tourism-related services in Egypt). The bilateral track During the past fifty years. European trade policy was mainly directed at preferential relations with the ACP group (the Lomé regime) and with neighbouring countries (internal European integration.

One distinctive characteristic of Europe’s bilateral agreements (such as the EPA. It also reflects the process of ‘tariff erosion’ and the increasing importance of ‘behind-the-border’ instead of ‘at-theborder’ issues.g. Since 1975 the Lomé Agreement established a comprehensive ‘trade and aid’ package that. the ‘Singapore issues’. EU bilateral agreements also contain more general ‘foreign policy’ elements on political dialogue (including human rights clauses). development cooperation (financial assistance and loans) and cooperation in a wide array of other areas (including justice and home affairs). access to services) are dealt with in these bilateral free trade agreements. But here too Europe’s insistence on a comprehensive package (including political dialogue and cooperation in other areas than trade) should compensate for concessions in the field of agriculture. The intergovernmentally negotiated European Development Fund (EDF) is specifically providing aid budgets for the ACP countries.1. Secondly. implying the sudden rise of the CEECs from the bottom to the top of the pyramid of preferences.Chapter 25 level (e. rather than fundamental disagreements about the content of the international trade regime. granting unilateral market access to all developing countries from 1971. Recent EU bilateral agreements have also been inspired by regional stabilisation concerns. they are undoubtedly the Union’s most important trading partners. banana and sugar protocols). illustrates the stabilisation objectives of the EU’s foreign and external policy. Gulf Cooperation Council and Mercosur negotiations) is its emphasis on regional integration between its trading partners. The same is true for the Veterinary Agreement and the Competition Policy Agreement between the EU and the US. the EU was at the forefront of two major trade initiatives towards the South. 5. these ‘Most Favored Nation’ (MFN) countries appear at the bottom of Europe’s preferential pyramid. During the seventies. Apart from the trade component. In fact also the enlargement process. THE EU DEVELOPMENT POLICY 5. Canada and Japan. The transatlantic trade relationship is particularly characterised by strong economic interdependence. for example the Stabilisation and Association Agreements (SAA) with the Western Balkan countries and the Euro-Mediterranean Association Agreements (EMAA). in addition to non-reciprocal market access. These ‘behind-the-border’ issues appear prominently in Europe’s bilateral relations with other industrialised countries such as the US. The Mutual Recognition Agreements between the EU and other OECD countries entail a different form of economic integration than ‘traditional’ negotiations on tariffs. included export stabilisation insurance mechanisms (Stabex/Sysmin) and commodity arrangements (cf. the Community was the first to apply a Generalised System of Preferences (GSP). From this perspective EU-US trade conflicts reflect their high level of mutual integration. Although in terms of tariffs. From development through trade… Europe’s development policy has largely developed in the context of its trade policy. 338 .

although the codecision procedure applies. one common criticism is that both policy levels are sometimes competing rather than collaborating. Although the Treaty states that EU development policy should be “complementary to the policies pursued by the Member States”. The Member States recently agreed to reach an average of 0. A similar evolution can be noticed in Europe’s GSP regime. although Europe’s collective average of 0. which is the debate on the level of EU integration.7% goal. such as the UK.39% ODA/GNI is still far away from the 0. It remains to be seen whether Europe’s newly proposed GSP combined with a regime for ‘sustainable development and good governance’. integration in the world economy. According to the consistency 339 . namely about the objectives of EU development policy. …to an ‘EU’ development policy? While the ‘trade route’ has long enabled the Community to conduct a developmentoriented policy towards the South it took until the Maastricht Treaty when ‘development strictly speaking’ became an autonomous policy domain under the first pillar. In addition. In any case. even though most ‘interventionist’ remnants of its Lomé predecessor have disappeared. Dissatisfaction with the added value of the EU scale has even provoked some Member States. good governance and the environment. democracy and good governance. The Treaty gives a broad and enumerative description. with additional tariff reductions for countries meeting certain labour rights and environmental criteria or for countries combating drug production and trafficking. 177-181 Nice Treaty). Recent policy documents and EU discourse particularly emphasise the eradication of poverty and the promotion of the MDGs. Attempts to coordinate and increase Official Development Assistance (ODA) budgets at the EU level have been relatively successful. This brings us to a first cleavage. the drugs regime was found illegal by a WTO panel in 2003. emphasising sustainable development. Disagreements on the role of the Community versus the Member States are also related to a second political cleavage.Chapter 25 The Cotonou Agreement and the current EPA negotiations still have a broad development-oriented focus. But although attempts to ‘Europeanise’ this external policy domain have only had limited results. While the first arrangements have hardly been applied.2. The EU-ACP relationship is also characterised by an increasing emphasis on human rights. 5.56% by 2010. it is clear that development is still largely considered as a continuation of the Member States’ ‘traditional’ foreign policy. development is only a shared competence between the Community on the one hand and the Member States on the other (see Title XX / art. will be more successful. the EU is now playing a bigger role in the international campaign for the promotion of the UN Millennium Development Goals (MDGs). poverty reduction. rewarding vulnerable countries that comply with 23 conventions on human rights. democracy and human rights. to argue in favour of a re-nationalisation of Europe’s development policy.

The European Union and the Third World. 2002.org/ – World Trade Organisation (especially Trade Policy Reviews): www. Relevant official documents and information can be found at the following websites: – European Commission. DAC: www. some fear that these development objectives may be subordinated to other policy goals. these objectives should also be taken into account in other EU policy domains that affect developing countries.eu. Since 2001 EuropeAid is responsible for implementing the Commission’s external aid instruments.oecd.eu. ECHO funds and coordinates humanitarian operations. DG Trade: http://europa.int/comm/development/index_en. DG Development: http://europa.ictsd. Marc. Houndmills.eu. Bibliography – Holland.int/comm/echo/ – EuropeAid: http://europa.wto. In practice.org – OECD.htm – International Centre for Trade and Sustainable Development: http://www.htm – ECHO: http://europa.Chapter 25 requirement.org/dac 340 . while relying on nongovernmental organisations for implementation.int/comm/europeaid/index_en.int/comm/trade/index_en. however. Palgrave. for example in agriculture (subsidies for EU farmers and dumping in third world markets) or in Europe’s general foreign policy activities (reorienting aid flows from the poorest countries to accession countries or strategic partners).eu.htm – European Commission. while ECHO (Humanitarian Aid Office) has provided emergency assistance and relief to the victims of natural disasters or armed conflict since 1992.

Chapter 26 CHAPTER 26 IMPLEMENTATION OF THE EU TRADE AND DEVELOPMENT POLICY – EXPERIENCES OF POLAND Sebastian Barkowski* 1. Head of Team in the Integration Policy Department of the Office of the Committee for European Integration. in order to take full advantage of those possibilities. Poland’s negotiating position in this area was adopted by the Council of Ministers on 10 December 1998 (and subsequently amended on 6 February 2001). the role of EU external trade for Poland cannot be underestimated. INTRODUCTION On 1 May 2004 Poland joined the EU together with nine other European countries. and promote better access to third countries’ markets. The wise use of the instruments that the trade and development policies provide to the EU Member States can clearly lead to the increase of the competitiveness of their companies.NEGOTIATIONS WITH THE EU IN THE “EXTERNAL RELATIONS” CHAPTER During the accession negotiations trade and development issues were included in the 26th negotiating chapter entitled “External Relations”.htm 341 . The aim of this paper is to present the main problems Poland has faced during the period of accession negotiations with the EU and as an active observer in the pre-accession period and which problems Poland currently faces as an ‘infant’ Member State of the EU since 1st of May 2004. that the internal market regulations rather then the trade and development policy measures are of utmost importance for the economy of Poland. The paper presents individual opinions of the author.int/comm/trade/issues/sectoral/index_en.1 2. Poland.eu. Despite this obvious statistical phenomenon. However. Poland declared full acceptance and * Senior Expert. the EU Member States (and more precisely their central administrations) have to know which economic areas of third countries may be influenced when using EU trade and development measures and how to make use of those measures. At the day of accession more than 80% of foreign trade has been conducted by the Polish economic operators with companies from either the EU-15 or the other acceding countries. They all can be found at: http://europa. It is self-explanatory. Warsaw. 1 No direct references to the EU legal acts have been made. They can protect them from the unfair economic activities of third countries.

it has been agreed that there is no need to change substantially the EU import regime for 7 months only2. The integration of the WTO Agreement on Textiles and Clothing Textile (ATC) list. Renegotiations have been launched in the case of one trade agreement. the same applicable to other industrial products. 2 In fact some EU import quotas and EU system of import licensees were slightly changed in order to preserve traditional imports of Polish companies. Commerce and Navigation Treaty with Japan (as well as the Bilateral Investment Treaty with the USA and the Foreign Investment Protection Agreement with Canada) negotiations have been carried out by the European Commission on request and on behalf of all the acceding and candidate countries that were bound by similar treaties with those parties. 342 . Their immediate introduction could have negative effects for Polish economic operators. the main requests during accession negotiations came from the EU. Accordingly. the Friendship. especially through the annual Monitoring Reports: Renegotiation or renouncement of international trade agreements (both preferential and MFN-based ones). the problem for Poland was linked to the primarily scheduled date of accession. those ‘technical problems’ disappeared. In the field of external trade relations. 3 In the case of the Friendship. as in the case of CEFTA.Chapter 26 readiness to implement the acquis in this field as from the day of accession (initially scheduled at 31 December 2002). The import quota on textiles and clothing. Poland has not renounced any of those agreements due to the fact that the number of similar (OECD-pattern) agreements have been concluded by a majority of the EU-15 Member States. The consolidation of the GATS commitments was postponed in general. Poland renounced (or. By mid-2002 the date of accession has been postponed to 1 May 2004. withdrew from) approximately 120 agreements. This means that no transitional periods were demanded. Commerce and Navigation Treaty with Japan. Since foreign investment issues are falling within the shared competences of the Community and the Member States. In addition. However. Poland highlighted only three so-called ‘technical problems’: The lists of GATS commitments. The conditions of Poland’s export and import relations in the above mentioned areas differed much from those of the former EU-15 Member States. but have not finished until now3. As regards textiles and clothing (both ATC and the import quota). the whole WTO system of managing trade in textile and clothing was rescheduled to 1 January 2005 to be changed to the ‘simple’ system. Renegotiation or renouncement of international investment agreements. 1 January 2003. due to ‘external’ circumstances. The Commission is doing the consolidation only now (mid-2005) for the whole EU-25. The Commission highlighted few key areas that were closely supervised. The reason behind pointing out these particular areas was of pure economical and practical nature.

except those imposed on imports from Poland. All measures imposed by the EU were applicable from the date of accession also on imports to Poland6. Trade defence measures. Only on the day of accession the Council Regulation establishing the list entered into force in Poland. and all the new Member States are parts of the internal market as from 1 May 2004.g. In general the system of control of exports of goods and technologies of both civil and military purpose was brought in line already before accession (in 2000). 6 Due to the fact that EU measures are imposed in imports entering the internal market. 343 . specific transitional measures were adopted. Negotiations on those measures were carried out in the weeks preceding accession and lasted even until after the date of accession. Accession to the WTO and Government Procurement Agreement (GPA). Two agreements concluded by Poland (the Bilateral Investment Treaty with the USA and the Foreign Investment Protection Agreement with Canada) have been subject to renegotiation. As far as individual measures are concerned. meaning all the acceding countries’ regulations in this area had to be abolished not later than on the day of accession. In order to prepare for accession. that were abolished because of accession7. However. 5 The EU trade defence system is based on the directly applicable regulations. Negotiations with Canada are still ongoing. At the beginning of the EU accession negotiations the Commission insisted on the prompt accession of Poland to the GPA. components of agricultural fertilizers imported from Russia and Ukraine). meaning until the end of February 2004). all measures imposed by Poland were abolished on the day of accession. the Commission has carried out all necessary adjustments. until the very last day some minor discrepancies remained as far as the list of such items and technologies is concerned. Dual-use items and technologies. 4 Since the GPA provisions are falling within the sole competence of the Community. The agreement with the USA has been successfully amended. 7 Upon the gentleman’s agreement between Poland and EU reached in mid-2003 no new investigations have been launched by the EU against Poland during the last year of pre-membership period. but not individual measures) similar to the EU one. until the end of the 10 years period foreseen in the European Agreement. In the case of some EU trade defence measures affecting import of goods essential for Poland and whose import was not limited in the pre-accession period (e. the public procurement provisions of the Accession Treaties with the ten new members were introduced (with minor changes) to the lists of GPA commitments of the European Community. Poland has declared that it would establish already in the pre-accession period a trade defence system (regarding rules. The policy of Poland in the field of public procurement was to keep the market closed for foreign competitors as long as possible (in the case of the EU. enforcing in this way quick adjustment of regulations on public procurement to the international standards (being similar to those of the EU) and ensuring openness of the Polish government purchases’ market for the companies from EU and other GPA members. This has been done by virtue of laws adopted in 20015. The accession to the GPA has been postponed as well. in fact.Chapter 26 Poland (together with other Member States) is waiting for a common approach of the Commission in this field. and became effective only upon the accession to the EU4.

3. However. Those problems should have ideally been tackled during the pre-accession period. ‘non-traditional’ importers. because they are importing either raw aluminium. Those were above all three products: aluminium semi-products9. In the case of rice the high EU import duties are connected to the internal organisation of the market. 10 In fact Poland has highlighted the banana import regime as another technical problem (in the addenda to the negotiating positions in the “Agriculture” and “External Relations” chapters. some problems arose shortly after accession. quite important for Polish economy (as well as for other new Member States). The following areas were concerned: Adoption of the Common Customs Tariff. have risen. at that time. or semiproducts from the free-trade EFTA zone (especially Norway). In the case of aluminium. which are the main suppliers of the Polish market. meaning that on the 1 May 2004 the average customs tariff rate applicable on imports of goods from third countries fell by approximately 2/3. 8 The system of export credits is the only part of the EU external trade and development area that is based not on regulations but on directives. the current EU import regime. 344 . the Commission was not in favour of granting such compensations. but it has been tackled only from the point of view of ‘traditional’ vs. tariff rates on some goods. Those were the system of export credits8 and the coherence of Poland’s overall policy with the EU inside the WTO forum. they have not been identified by Poland as problems. Poland claimed no changes in this respect and carried out no adjustments. The system is due to change in 2006 but the negotiations on the rate of the tariff duty are still on-going10. However. EXTERNAL TRADE POLICY PROBLEMS ENCOUNTERED IN POLAND AFTER ITS ACCESSION TO THE EU Although the accession negotiations in the “External Relations” chapter went quite smoothly and without major obstacles. supporting the domestic producers (mainly from Italy). based on various import quota and so called ‘traditional’ and ‘non-traditional’ importers. bananas and rice. is organised in order to support the ACP producers and not the ‘dollar zone’ exporters from Latin America. In the case of bananas. However. the majority of EU companies are not interested in cheap imports of semi-products from EU eastern neighbours (a traditional source of Polish imports).Chapter 26 Two other issues were present in almost all Commission’s Monitoring Reports highlighting its importance for the EU and a quite good preparation of Poland. Poland has hoped for compensations (mainly the lowering of rates) that the EU has to grant according to GATT rules. 9 Aluminium semi-products are in fact the only example of semi-products for which the Common Customs Tariff foresees higher tariff rates than for the raw product.

These agreements fall into the sole competence of the Community and no legal adjustments were needed because of accession. Those have been carried out not by the Commission alone. Taking into account the developments during the negotiations process and the period when Poland had the status of an active observer. they required no substantial changes. According to the Accession Treaty. However. Accession to the international trade agreements concluded by the EU. negotiations have been carried out and concluded before the formal accession of the new EU Member States when they were only active observers (meaning they had no real power to influence the process and just learned how to ‘behave’ in the EU decision-making system). During the accession negotiations Poland declared that it would gradually align with the system. As a result quite a few provisions of the Protocols are not in line with Poland’s priorities. the agreements are to be applied by the new Member States on a provisional basis. Accession to the international agreements concluded by the EU and its Member States (‘mixed’ agreements). As far as the ‘political’ provisions of the agreements are concerned. since import of steel products from the eastern EU neighbours is of great importance for the Polish economy. Since the EEA is simply extending the internal market. Actually. Poland was due to accede to all such agreements by virtue of “Additional Protocols” that were to be negotiated by the Commission on behalf of all current and acceding Member States. what is of far greater importance for all new EU Member States are changes in the EU GSP itself. Those changes have not been claimed before accession. especially regarding preferences for the least developed countries. Full alignment has been achieved only at the moment of accession. especially as regards sensitive agricultural products 11. The GSP constitutes the framework of EU trade-related development policy. the provisions relating to trade (especially those establishing bilateral preferences) were subject to negotiations. the real negotiations dealt only with the tariff duties on some agricultural and fishery products and with the amounts of the financial instruments provided for the new EU Member States. These are agreements regulating trade in steel products with selected NIS Countries. However. 345 . the most difficult issues started to occur after accession. 11 The only exception in this case was the negotiations on the enlargement of the EEA. but in the presence of all acceding countries and the three EFTAEEA states. mainly due to the fact that the current GSP is to be replaced as from mid-2005. those issues that were initially considered to be problematic prior to the date of accession did not turn out to be the most problematic ones. Necessary adjustments were carried out in the first months of membership.Chapter 26 Generalised System of Preferences (GSP). reflecting the different development level of the EU-15 compared to the EU-25. in order to avoid a distortion of the steel production in Poland. However. the enlargement of quotas foreseen in the agreements was crucial. No changes have been claimed following the 1 May 2004. and that the works on the new system have started already in summer 2004. when the GSP Regulation entered into force in Poland. Until these Protocols are not in force. As a result the system remained in the form designed by the former EU-15. In the majority of cases.

.

In principle. Cato Institute.5 – 6. in the field of trade policy the EU made the most to maximise the opportunities created for Romania as an accession country by provisions like the asymmetrical reduction and elimination of customs duties. As regards the development side of the EU trade policy things are different. EU Enlargement Costs. for example.Chapter 27 CHAPTER 27 TRANSPOSITION AND IMPLEMENTATION OF THE EU TRADE AND DEVELOPMENT POLICY – COSTS AND BENEFITS FOR ROMANIA Florin Bonciu* 1. But the capitalisation of these opportunities has been entirely dependant on Romania’s decisions and policies. Normally. The development policy of the EU has the objective to support developing nations by means of various trade benefits offered to these nations like. Tupy. Marian L. These initiatives have been taken from a ‘donor’-perspective and this is normal as most of the current EU Member States are considered to be developed economies. September 18. Bucharest. Faculty of European Integration. As the environment changes inside and outside Romania. the benefits should be larger than the costs but such a calculation is based on probabilities and on circumstances that may change in time. 2003. COSTS AND BENEFITS FOR ROAMNIA’S FULL PARTICIPATION IN THE EU TARDE AND DEVELOPMENT POLICY The costs and benefits related to the full adoption of the EU trade policy involve relations with two different groups of countries: Dean. 1 * 347 . and Strategies for Central and Eastern European Countries. as well as on Romania’s capability to be competitive in the internal market of the European Union. INTRODUCTION The integration of Romania into an economic space like the European Union and in particular the adoption and implementation of the EU trade and development policy implies certain costs and benefits. 2. the Generalised System of Preferences (GSP). this chapter will focus on the costs and benefits of the implementation of the EU trade and development policy for the period after accession. pp. Policy Analysis. the “Everything but Arms Initiative”. Benefits. the granting of asymmetrical preferences. Romania. when Romania becomes a full EU Member State1. Romanian-American University.

i. 2 Constantin Ciupagea (coordonator). valid for all members of the new customs union.62 – 65.Chapter 27 The other Member States of the EU. Evaluarea costurilor ºi beneficiilor aderãrii României la UE. the EU trade policy is designed for the whole EU space. which will be due to the adoption of the CET.some of them benefiting of EU trade preferences like the ACP countries. Third countries.6% for industrial products. the increased competition may create substantial difficulties and even the risk of going out of business. For a number of Romanian companies. Elimination of trade barriers within the enlarged customs union and adoption by Romania of the EU Common External Tariff (CET): The overall trade protection will decrease as compared to the pre-accession period. particularly for small and medium sized companies.4% to 3.6% to 6.ier.3% as an average. This fact may also lead to requests for compensatory measures from third parties – inside the WTO – which may be affected by this change in Romania’s WTO commitments. non-EU Member States which include both developed economies (like the USA or Japan) and developing countries . Among these changes are the following: Full adoption of the EU trade policy: Romania will transfer all attributions in the respective field to the Community. Romania will give up its list of commitments within the WTO and will negotiate together with the extended EU a new list. This assumption is supported by the fact that in 2005 Romania’s GDP per capita stands at 28% of EU–25 average. 2. pp. www. Bucureºti. As mentioned before.1. does not have to negatively impact the imports from third party countries. However. 2004. 348 .ro. Costs After Romania’s accession to the EU a number of significant changes will take place in the trade and development area2.2% for agricultural products and from 15. Negotiation of a List of Common Commitments to the WTO: The enlargement of the Customs Union will have to be done in accordance with the rules stated in Article XIV and Article XVII of GATT meaning that the enlargement: does not have to imply a higher tariff protection than before enlargement. from 30% to 16. due to differences in the general level of development and the structure of the Romanian economy in comparison with the EU average these new lists may not correspond fully to Romania’s interests. Due to the different level of development and the different structure of the Romanian economy in comparison with the EU average the EU’s trade policy preferences will not fully represent Romania’s trade interests which means much less possibilities for trade protection for Romanian products. Customs duties applied under Most Favourite Nation treatment will decrease from 18.e.

Benefits The benefits related to the adoption of EU trade policy after Romania’s accession to the EU refer to: Opportunities resulting from a better access to third party markets due to preferential agreements of EU with these countries: Romania may use its traditional experience with developing countries and become an important partner for the ACP countries. Reduction of budget revenues due to the elimination of customs duties: This reduction has 2 components: reduction of customs duties as such and the fact that all customs duties collected at the Romanian customs border are transferred to the Community budget.6 times in case of exports and 2. e. Increased mobility of production factors.may help Romanian companies to achieve the much-needed economies of scale. the Romanian external trade will increase 3. Improvement of Romanian position within WTO as part of EU: However. Costs reductions due to economies of scale: The free access to a much larger market .g. Costs due to the increase of control capacity at the new EU customs borders of Romania: This includes technical costs (e.Chapter 27 Romania and EU Development Policy: Romania becomes a donor of preferences at the same level as the EU. in the framework of the GSP. 349 .4 times in case of exports and 1. equipment. Research showed that in case of Romania’s integration in the EU.8 times in case of imports. this benefit can materialise only to the extent the level of development and structure of Romania’s economy becomes similar to the EU average. IT. particularly of foreign direct investment: The increased mobility of production factors is expected to be the highest positive economic impact. These results prove the positive impact of integration on trade and development of Romania.2.the single European Space . 2. or the Cotonou Agreement. etc. during the period 2003–2015. For the hypothetical case of non-integration into the EU. Diversification of offer on Romania’s market: While this aspect is in principle positive for the Romanian consumer.g. it may lead to significant trade deficits in case Romanian exports are not competitive enough. the Romanian external trade will increase 2.8 times in case of imports.) but also a reduction of customs staff due to the elimination of customs control for intracommunity trade.

Chapter 27 3. The expectations have to be well pondered by the fact that while the costs are effective (they happen anyway). depend on many domestic and external factors and will become evident only in the medium to long term. CONCLUSIONS Both theoretical approach and econometric simulations show that accession to the EU and therefore the transposition and implementation of EU trade and development policy is in principle positive. 350 . the benefits are potential.

SECTION 10 EU COMMON FOREIGN AND SECURITY POLICY .

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and the capabilities for carrying out foreign policy actions. The use of the concept in the case of non-sovereign.. CFSP and ESDP have separate histories and different regulations.Chapter 28 CHAPTER 28 EU COMMON FOREIGN. issues and processes of the world system. INTRODUCTION Foreign policy is associated with state sovereignty. which belong to states. 353 . i. President of the Italian Political Science Society. and consists of the capacity of state governments to make and implement actions and policies abroad in order to promote domestic values and interests. this EU condition is conventionally named with the composite acronym CFSP/ESDP. Department of Political Studies.1. 2. Common Foreign and Security Policy (CFSP) and European Security and Defence Policy (ESDP). military and economic resources. it is better to proceed to the separate presentation of the two. oriented toward the specific goal of intervening in facts. However. and * Professor at the University of Catania. Consequently. also the decisionmaking structures and procedures of the former are more developed than that of the latter. Italy. THE COMMON FOREIGN AND SECURITY POLICY (CFSP) 2. Such capacity depends on resources. overlapping of the two policies and a process of convergence are under way. The history of the former is longer and richer than that of the latter. such as diplomatic. Historical Evolution CFSP consists of cooperative actions undertaken by the EU institutions on behalf of all the Member States toward nonMember States and international bodies. Though. More exactly. non-state entity such as the European Union (EU) raises scepticism and disbelief because this entity is seen as lacking both centralised decisionmaking and appropriate resources. the EU has progressively got the capacity of making decisions towards the external world. Today. CFSP/ESDP consists of the common actions and positions of the EU institutions and Member States towards political issues and problems in the outside world.e. SECURITY AND DEFENCE POLICY Fulvio Attinà* 1.

which are increasingly under the institutional influence of the EU foreign policy. cooperation programmes. and agree to adjust their foreign policies to accommodate each other2. and peace-keeping operations. from 1970 to 1993. two phases are distinguished in this process. the foreign policies of the Western European countries underwent a process of harmonisation on the basis of informal agreements and without permanent. This line of development has been subsequently formalised and upgraded by the Treaty of European Union and its reforms since 1992. in Stuttgart urged to include the political and economic aspects of security within the scope of the EPC. until the Single European Act of 1986. The third strand is the national one. In brief.e. Europe’s Foreign and Security Policy: The Institutionalisation of Cooperation. still developing. such as political dialogue. CFSP actions are the result of cooperation among the EU Member States in situations in which they do not perceive themselves as having identical interests. 354 1 Michael . the economic dimension of the European foreign policy. consisted of the informal coordination of the foreign policies of the Member States in the European Political Cooperation (EPC) process. Secondly. Cambridge. we can quote the European Union strand that. Europe’s Foreign and Security Policy. The institutionalisation process of foreign policy cooperation among the European countries can be traced back to the early 70s. which aimed to seek common approaches. and the subsequent CFSP phase. The 1983 European Council decision. and strengthen the solidarity of the Member States on international problems.e.e. 2 Michael Smith. in Copenhagen. Cambridge University Press. as Michael Smith1 remarks. Another important historical event was the 1973 European Council decision. 2004. A reciprocal relationship has been developed between Member States cooperation in foreign policy and the process of CFSP institution building. i. the 1986 Single European Act brought the European foreign policy cooperation into the treaty. The most important dates and events of the European Political Cooperation phase are the following ones: The 1970 Davignon Report created the European Political Cooperation process to ensure mutual understanding. The European Political Cooperation phase. and implement concerted diplomacy. Smith. formal structures. And finally. i. the separate foreign policies of the Member States. three strands are intertwined in CFSP: First there is the European Community strand. Taking into account the composite nature of the EU (i. During this phase.Chapter 28 made operational by means of various activities and instruments. the coexistence of EU and EC) it is not surprising that.

in 2004. the Treaty on European Union consecrated the birth of the Common Foreign and Security Policy (CFSP). pp. The preference for the politics of scale also in areas such as foreign and security policies under the effect of world interdependence and the intensive globalisation process. identities and expectations of the European countries. Europeanised. or federal. it is better to take into consideration broad explanatory factors such as: The convergence of interests. International Organization. Though critics say that it has been a slow process with modest substantive achievements. Governments of countries in which identification with Europe is strong are more supportive of supranational integration in foreign and security policy than governments of countries with low European identification. The1997 Amsterdam Treaty enhanced the construction of CFSP by expanding the number of common instruments and developing the decision-making procedures. made decisions that strengthened common security and defence policy. the Treaty establishing a Constitution for Europe contains important articles on the development of both the political and defence dimension of CFSP/ESDP. sometimes variable. The 1999 European Council. 2004. 58. Governments with high power capabilities are less supportive of supranational integration in foreign and security matters than governments with low capabilities in world affairs. and The growth of multilateralism. In order to account for the emergence and development of the common foreign policy. no. 3 Mathias Koenig-Archibugi. European Council meetings furthered the plan for building EU military and civilian capabilities of crisis management. From 2000 to 2004. The great variety of national preferences and expectations about CFSP can explain the slow pace of development of this policy field. in Helsinki. Lastly. there are studies3 which support opposite ideas: governments that support supranational CFSP are not necessarily conformist. The pressure of the expectation of external actors.Chapter 28 A brief timeline of the CFSP phase consists of the following dates and events: In 1992. “Explaining Government Preferences for Institutional Change in EU Foreign and Security Policy”. 137–174. 355 . However. over the past twelve years the CFSP building process has been steadily growing and producing important results. attitudes towards CFSP. which have been increasing over the years under the effect of the economic integration process. weak. The European governments and publics have different.

also known as Petersberg missions. to define the approach of the EU to a particular matter of a geographical or thematic nature. to be implemented by the Union in areas where the Member States have important interests in common.3. Article 12 of EU Treaty defines the CFSP instruments as consisting of: Principles and general guidelines. and coordinate their action in international organisations and at international conferences. decided by the European Council in 1999. who defines the general guidelines. The Member States ensure that their national policies conform to the positions of the EU. monitors the implementation of agreed policies. after the 1994 decision of the Western European Union. and the systematic cooperation between the Member States. The Commission sustains the proposals of the High Representative and the European Parliament may ask questions and make recommendations. Historical Evolution The new and hard process for building the common defence policy aims at achieving the so-called ‘headline goal’. Joint actions. They are the European Council. 3. THE EUROPEAN SECURITY AND DEFENCE POLICY (ESDP) 3. the rules of their operation. The CFSP Instruments The treaties and practice have developed the CFSP institutional system and decisionmaking process. Common positions. and the agreements governing ESDP relations with NATO and third countries have been developed after the Treaty of Amsterdam (1997) in a continuous process of negotiation. and ensures the implementation of the decisions. Common strategies. to address specific situations where operational action by the Union is required. 2. The ESDP military and civilian organs. the Council. gives opinions to the Council. The European Parliament has in general a weak role in this policy field.2. The Political and Security Committee (PSC) monitors the international situation. This goal consists in giving to the EU military and civilian capabilities of crisis management. exercises the political control and strategic direction of crisis management operations. who adopts the decisions necessary for defining and implementing CFSP on the basis of the general guidelines.1. 356 . Another actor is the CFSP High Representative who contributes to the preparation. The CFSP Actors and Decision-Making Decisions on these CFSP instruments are the responsibility of the CFSP institutions.Chapter 28 2.

civilian administration. of the Committee of civilian crisis management in the event of civil actions. in response to a crisis or to an urgent request by the UN. The ESDP Actors and Decision-Making ESDP decisions are the responsibility of the European Council. no later than 10 days after the EU decision. and have the responsibility for generating the capacity to plan and run an autonomous EU military operation. which performs early warning. which is responsible for providing the PSC with military advice and recommendations on all military matters within the EU. A battlegroup is based on combined arms. composed of the Member States’ Chiefs of Defence. They are: The Political and Security Committee (PSC). and the High Representative.Chapter 28 3. 357 . and civil protection. and The EU Military Staff (EUMS). proposes to the Council the political objectives of the Union in a crisis situation and recommends a set of options. battalion sized force (1500 troops). It could be formed by a framework nation or a multinational coalition of Member States. The operations of the civilian capabilities are the responsibility of the Committee of civilian crisis management. Battlegroups are able to launch an operation within 5 days of the approval by the Council. On this document base. fully operational in 2007. They prepare a document on possible police. The EU Military Committee (EUMC). The preparation of the decision to intervene in a crisis involves the High Representative and the Chiefs of Defence.2. In addition. which exercises political control and strategic direction of the EU’s military response to crisis. rule of law. As of today. situation assessment and strategic planning including identification of European national and multinational forces. formed by the Political Directors of the Foreign Affairs Ministries of the Member States. undertake simultaneously two operations sustainable for a maximal period of 120 days. the EU civilian and military cell has been created recently. The Member States have engaged in creating 13 EU battlegroups. In addition. Each battlegroup is associated with a Force Headquarters and pre-identified transport and logistics elements. military and juridical actions. and exercises military direction of all military activities within the EU framework. and implements policies and decisions as directed by the EUMC. The cell will assist in coordinating civilian operations. reinforced with combat support elements. ESDP military capabilities consist of military units called battlegroups. the Council decides the type of action following the advice of the PSC and EUMC in the event of military answer. and put under the responsibility of the High Representative. the Council. and of the Commission in the event of legal actions. composed of nationals of the Member States. three important organs prepare the decisions and are involved in their implementation. ESDP civilian capabilities are ready to operate in four priority areas: police operations.

different threat and risk perceptions. stronger diplomatic capability. and More capable by developing more resources for defence. On the one side. different policy preferences and worldviews. military and civilian capabilities from the Member States. 4. greater capacity to bring civilian resources in crisis and post crisis situations. and other instruments such as the European Development Fund. it is remarked that also domestic structural factors are responsible for this state of the relationship. robust intervention. no. “ESDP as a transatlantic issue: problems of mutual ambiguity”. complains about lack of burden sharing in NATO and European free-riding behaviour. has given to the EU wide-ranging guidelines for meeting with responsibilities in world affairs. 6. 358 . even beyond security and defence policy problems. also known as the Solana Doctrine. On their side. and different definition of the national interests are growing4. The two allies are fragmented political systems in which the governments cannot control the domestic environment in which diverging priorities. The European Security Strategy has engaged the EU to develop the common security and defence policy in order to make Europe: More active by developing a strategic culture that fosters early.Chapter 28 The European Security Strategy. and the state of the problems of international politics. 3. the USA suspects being abandoned by the European allies because the building of ESDP and the EU capacity for military actions are perceived as depreciation of NATO and decoupling from the allied strategy. Furthermore. More coherent by bringing together different instruments and capabilities such as European assistance programmes. want to play a significant role in Western defence policymaking. In a wider perspective. and improved sharing of intelligence among Member States and partners. the Europeans. TRANSATLANTIC RELATIONS EU-US relations are crucial to the development of the political framework of the foreign policy of the EU. the United States. and when necessary. pp. having primacy in security affairs and hegemonic leadership in world affairs. These relations are heavily conditioned by the global power competition structure that shapes the world system. traditionally reluctant to increase military spending to contribute meaningfully to the military capabilities of Western defence. The war in Iraq brought to the surface the wide difference of perspectives existing 4 Ingo Peters. International Studies Review. Intertwined and mutually reinforcing suspicions are the scenario of current transatlantic relations. rapid. 2004. which was published in June 2003. vol. 381-403.

they often prefer to choose immediate military interventions. democracy and respect of human rights and healthy environmental and social conditions. Emanuel Adler and Beverly Crawford (eds). economic and institutional reforms. European foreign policy-makers recognise that building viable. prefer multilateral agreements and regional programs of economic cooperation that contain the clause of political conditionality. 5. and the Europeans believe that the European security model is to export to other regions. University of Toronto Press. The USA. The programs of the ENP have not yet generated considerable outputs.Chapter 28 between the USA and Europe on the best strategy to cope with the problem of countries in serious conditions of economic backwardness. which is largely founded on multilateral institutions and mechanisms inspired by the concept of cooperative and comprehensive security5. as in the case of Colombia. THE EU AND ITS NEIGHBOURS Neighbourhood policy is. instead. in particular. subsequently. viable political structures. For the Americans. the EuroMediterranean Partnership project of free trade in the Mediterranean area) bring economic development and. socio-economic. which has been created recently and incorporates the former. To cope with the problems of irresponsible dictators and rogues states. “The building of regional security partnership and the security culture divide in the Mediterranean region”. The Convergence of Civilizations? Constructing a Mediterranean Region. peaceful and stable relations with the countries of the areas surrounding Europe will have real and symbolic consequences. the most important European Union programs are the ten-year old Euro-Mediterranean Partnership (EMP). the Europeans prefer maintaining the existing economic. Partnership and closer economic integration are offered to partners on condition of concrete progress in implementing political. However. the most important concern and challenge of the CFSP today. and the two-year old European Neighbourhood Policy (ENP). the EU wants to promote sustainable economic development. as in the case of Mexico. In this perspective. the eradication of drug traffic through strengthening the local police and army. 2005. admittedly. political and social regimes until cooperation programmes (as. Toronto. waiting for long term-effects of cooperation projects is not necessarily the best solution. Focusing on dialogue and cooperation. cultural and military dimensions. The Americans prefer the strategy of bilateral relations and the use of specific-problem measures such as for instance. Accordingly. instead. With regard to security. 5 Fulvio Attinà. instead. their objective and structure are clear. regional security agreements are the preferential road to security problem solving. also known as the Barcelona Process. 359 . political repression and social unrest. the European states have built on their continent a security co-management system or regional security partnership. or improving economic conditions by changing bilateral trade agreements. for instance. The Europeans. relaxation of political and social tensions to a group of countries. and developing regional and sub-regional cooperation and integration. consider regional security arrangements as subsidiary to their world role interests. and mixing the political.

visa and immigration) and foreign policy (e. Azerbaijan. In the Economic and Financial chapter. Jordan. The governments of the non-EU Mediterranean countries welcomed the programme. 6 The conditionality clause is included in the bi-lateral Association Agreements between the EU and its Mediterranean Partners. Belarus. the approval of an Action Plan.992 millions for the period 2007-2013. Syria. Integration into transport. governments agree to develop a wide range of cooperation projects in culture. religion. The partnership-building process in the Mediterranean was launched in 1995 in the city of Barcelona as a long-term process of change. stability and security in the Mediterranean region ”by all means at their disposal“. Involvement in conflict prevention and crisis management. Moldova. Lebanon. and the media. In the Social.g. Cultural and Human Affairs chapter. New sources of finance. the EU incentives to the neighbours are the following: Extension of the internal market and regulatory structures. the Palestinian Authority. Efforts to promote human rights. Jordan. the Barcelona Process is an instrument for solving domestic economic problems. energy and telecommunications networks and the European research area. enhancing their countries’ position in the world economy. and € 14. In the Political and Security chapter. The Barcelona Declaration of the Euro-Mediterranean Partnership has three chapters. Preferential trading relations. Ukraine. It states that respect for human rights and democratic principles constitutes an essential (and thus legally binding) element in the EU’s relations with its Partners. governments pledge to promote peace. Conditionality clause6. Libya. further cultural cooperation. Tunisia. and the redaction of Reports on Progress. and also between trade unions and public and private companies. Middle East.Chapter 28 In concrete terms. and Ukraine have been agreed. Integration into the global trading system. The purpose is to link human rights and democracy promotion with political dialogue and economic development. Tunisia. Israel. The process of negotiation with each country consists of three formal acts: the definition of the Country Report. Morocco. 360 . the Action Plans of Israel. Armenia. the establishment of a free trade area by 2010 is associated to speeding up the pace of lasting social and economic development and to improving peoples’ living conditions by raising employment and closing the development gap in the region and promoting cooperation and regional integration. Moldova. Promotion and protection of investment.g. Agreements on lawful migration. and influencing European unilateralism in domestic policies (e. and enhancement of mutual understanding. To them. Morocco. The funding for the programmes consists of € 955 millions for the period 2004-2006. The countries invited to join the project are Russia. EU-USA relations). Egypt. which must be adapted to overcome obstacles and problems. As of June 2005. the Palestinian Authority. Algeria. education. and Georgia. Cooperation to prevent and combat common security threats.

At present. regional groups or organisations. Consensus is particularly high on Middle East and human rights issues.Chapter 28 6. before the USA (27%) and Japan (18%). In 2003. which established a strategic partnership in development and humanitarian fields with a number of UN agencies. The EU is a party to more than 50 UN multilateral agreements and conventions. following the formal creation of the CFSP in the Treaty of European Union. The EU Presidency. It delivers demarches and statements on behalf of the EU. In 2003. the share of the EU-25 in the UN peacekeeping budget is around 39% of the world total. 7 Paul Luif. EU is also the largest troop contributor to other peace missions under the authority of the UN Security Council. In the 1990s. Since then. 3 259 personnel) of the UN total. it is worth considering the high level of convergence of the positions of the EU member countries at the United Nations. In the security field. The Council proposes various forms of support to UN forces such as the ‘clearing house process’ to coordinate EU Member States’ contribution to UN Peace Operations. voting agreement further increased up to about 90%. the Commission’s Delegations represent the EU in the UN and most UN specialised agencies.e. is responsible for coordination and represents the Union in most areas of UN activity. instead. the EU states voted identically in almost 60% of all recorded votes. no. and the ‘bridging model’ which will fast activate EU peace-keeping forces in order to give time to UN for the organisation of their forces. and 19% of Japan) 2/5 of the UN peacekeeping operations budget and 1/2 of all UN funds and programs. police officers. EU Member States’ contributions of troops. It is worth mentioning the June 2004 document of the European Council for enhancing collaboration with the UN peacekeeping operations. It is acknowledged that the European engagement in helping the UN to carry out its mission is remarkable. in discussions with other UN Member States. In 1979. in 2003. The EC was granted observer status at the General Assembly in 1974. funds and programs. EUROPEAN UNION AND GLOBAL GOVERNANCE The functioning of the United Nations (UN) as well as the need for reforms (as. the European Commission and the UN signed a financial and administrative framework agreement. EU cohesion in the General Assembly. ISS Occasional Paper. This has been done with the analysis of voting in General Assembly7. and observers to UN operations are also important. 361 . Furthermore. of the Security Council) are of main concern to the EU and the Member States since the EU foreign policy-makers have increasingly engaged in effective multilateralism as the main objective of the EU world policy. In such a perspective. 2003. 49. for example. making the Union by far the largest contributor.0% (i. the EU contribution was of 9. the EU-25 contributed 38% of the UN’s regular budget (against 22% of the USA. even if not directly run by the UN.

381-403. 2004. – Mathias Koenig-Archibugi. University of Toronto Press.htm – The Council of the EU: http://ue.int/committees/afet_home. Cambridge. pp. The Convergence of Civilizations? Constructing a Mediterranean Region. 137–174. no. – Michael E Smith. EU cohesion in the General Assembly. no. ISS Occasional Paper.htm – The Commission.htm – The European Parliament. Foreign and Security Policy: http://europa. 6. 3. International Studies Review. Europe’s Foreign and Security Policy: The Institutionalisation of Cooperation.asp?lang=EN&cm sid=246 362 .int/comm/external_relations/cfsp/intro/index. Cambridge University Press. pp.int/pol/cfsp/index_en. – Paul Luif.eu. vol. 49.. Directorate General for External Relation: http://europa. Relevant official documents and information can be found at the following websites: – Activities of the EU. – Ingo Peters.europarl. “The building of regional security partnership and the security culture divide in the Mediterranean region”. 2004.asp?lang=en&id=248&mode=g&name= – The High Representative for the CFSP: http://ue.int/showPage. Toronto. 2003. International Organization. 2005. Emanuel Adler and Beverly Crawford (eds).int/cms3_applications/applications/solana/index.eu.eu. no. 58. “ESDP as a transatlantic issue: problems of mutual ambiguity”.Chapter 28 Bibliography – Fulvio Attinà.eu.eu. 2004. Committee on Foreign Affairs: http://www. “Explaining Government Preferences for Institutional Change in EU Foreign and Security Policy”.

in Vasile Puscas. Bucharest. These chapters were temporarily closed in June 2000.a 363 * Executive President. the Central European Initiative (CEI). Romania has introduced and exercises a strict control of the double usage products and technologies and is part of all international treaties regarding arms control. Negotiating with the European Union. Negociind cu Uniunea European?. on February 15. EURISC Foundation. 784. without any transition period. Economica. Romania’s Position paper for Chapter 27 regarding CFSP states that: “Romania is ready to accept and to apply the European Union’s acquis in the field of Common Foreign and Security Policy (CFSP). For the English version of the document see “Romania’s Position Paper Chapter 27: Common Foreign and Security Policy”.Chapter 29 CHAPTER 29 ROMANIA’S SECURITY AND DEFENCE POLICY FROM THE PERSPECTIVE OF THE COMMON FOREIGN AND SECURITY POLICY AND THE EUROPEAN SECURITY AND DEFENCE POLICY Liviu Mureºan* 1. Romania supports the non-proliferation of nuclear. Editura Economica. and Romania’s foreign and security policy is based on the same principles and has the same orientation as the one promoted by the European Union”1. 796. Bucharest. Romania is as well an active promoter of the regional co-operation through participation to various regional groups or organisations such as the Black Sea Economic Co-operation Organisation (BSECO). p. biological and chemical weapons and is part of all relevant international agreements in this field. Edit. The necessary structures for its implementation have been created. Vol 2: The Initial Position Papers for Chapters of Negotiation. Romania stated that the acquis communautaire for both chapters would be accepted and applied upon EU accession in 2007. 2003. Washington. in Vasile Puscas. 2000. According to the position papers presented. . 2003. Romania is member of the United Nations Organisation (UNO). Zurich. Moscow. of the North Atlantic Treaty Organisation (NATO) and some other international organisations. ROMANIA’S POSITION TOWARDS THE COMMON FOREIGN AND SECURITY POLICY The External Relations and the Common Foreign and Security Policy (CFSP) chapters (Chapters 26 and 27) were among the first negotiation chapters opened by Romania after the start of the accession negotiations with the European Union. Volumul 1: Documente initiale de pozitie la capitolele de negociere. 1 Position paper on Chapter 27: Common Foreign and Security Policy. Bucharest. of the Council of Europe. pp.

and the Stability Pact for South-Eastern Europe. The channels Romania can use for integrating into the European Security and Defence Policy (ESDP) are multiple: Periodic consultation on European security. etc). The participation of the Romanian army in peace support missions is another element 364 . which is meant to ensure peace and stability in Central and South-Eastern Europe. Involvement in the current activities of the EU institutions and agencies dealing with security issues (General Affairs Council. Romania can potentially constitute an important ESDP pillar in Central and South-Eastern Europe. and many others. Participation in the Western European Union (WEU) Assembly sessions. Romania has also accepted to host in Constanta the headquarters of the South-Eastern European Brigade (SEEBRIG) in 2003-2006. the South-Eastern Europe Cooperation Process (SEECP). Participation to the decision making process on issues regarding the management of military and civilian aspects of the crises. Participating in EU lead crises management exercises and operations. Romania is now in an advanced stage of settling all aspects of its relations with the neighbouring countries. From a military perspective. On regional level also. Romania actively participated in the “Working Table 3” on security issues of the Stability Pact for South-Eastern Europe and chaired the Defence Ministries Committee for Co-ordinating the Co-operation Process in South-Eastern Europe. as well as the Politic and Military Committee of the Multinational Peace Force from South-Eastern Europe. in the creation of a peace keeping brigade of the Central European countries (CENCOOP) and in the mixed military units – a Romanian-Hungarian peace keeping battalion. the European Union Institute for Security Studies. the South-Eastern Co-operation Initiative (SECI). The willingness of Romania to participate in international military co-operation is also sustained by hosting regional military training institutions such as the Romanian-British Regional Partnership for Peace Training Centre within the High Military Studies’ Academy in Bucharest and the Regional Defence Resources Management Centre from Brasov. The Policy and Security Committee. in the Multinational High Combat Capacity Brigade of the UN Forces (SHIRBRIG).Chapter 29 the Central European Free Trade Area (CEFTA). a fact proven by its participation in the Multinational Peace Force from South-Eastern Europe (MPFSEE). in the Black Sea naval co-operation Group (BLACKSEAFOR). the Royaumont Process. a landmines Romanian-UkrainianHungarian-Slovak unit and a Romanian-Moldavian battalion. in the sessions of the Inter-parliamentary Security and Defence Assembly. based on international law and is part of a trilateral agreement network with these states. The Military Committee.

and less probably in a war situation. on March 29. Romania is also part of the police forces missions of the European Union (EUPM) in Bosnia and Herzegovina and to the European Union’s Concordia military operation in Macedonia. the European Union cannot have yet a significant global military presence in case a conflict emerges. This is why it is very likely that NATO will remain. as member state with full rights. 4 civilian experts. The European Security And Defence Policy – A factor of influence on the actions of Romania in the field of security and defence. Romania should in principle become member of the European Union on January 1st 2007. one liaison officer). At the same time. simultaneously on more operation deployments. A similar evolution did not happen in the EU countries. Despite the lack of classic war type conflicts. 2. Starting from this fact. However. this date is still a desired target in the future. Florin Bonciu. Despite its growing global economic and financial power.Chapter 29 that underlines the viability of the Romanian military organism on the international level. ALBA and MAPE in Albania (one police officer). even a diffuse one as the fight against terrorism is. Research paper. The European Institute of Romania. the USA administration adopted gradually a more unilateral approach to military interventions with a tendency to engage in more ad hoc military coalitions. the also Liviu Muresan. Adrian Pop. In addition. the European Union has not yet. Bucharest. as an entity. the European Union does not dispose of the necessary material resources for building up military force capable of rapid intervention at global level. 2004. Starting with 1991 Romania participated in many operations of this kind. namely in IFOR/KFOR commanded by NATO in Bosnia and Herzegovina (203 militaries). 3 The so-called ‘Revolution in Military Affairs’ (RMA) has triggered the development of brand new approaches and technologies for military affairs in the USA. In the last three decades the military power and technological gap between the USA and the EU Member States (with the relative exception of the United Kingdom and France) had an ascendant trend3. the current period is still not a peaceful time. THE ROMANIA-ESDP RELATION FROM THE PERSPECTIVE OF TRANSATLANTIC RELATIONS The analysis of the relation Romania-ESDP from the perspective of transatlantic relations should start from a series of facts2: Romania has been accepted. at least on medium term. the political unity required for building up a common armed force. into the North-Atlantic Alliance. an alliance strongly influenced from a political and military point of view by the USA. UNMIK in Kosovo (46 police officers. 365 2 See . Therefore Romania needs to find a balance between its position in a political-military alliance where the country already belongs to (NATO) and a political organisation to which Romania wishes to adhere but whose security and defence dimension is insufficiently consolidated (EU). 2004.

3. 2. Moreover. This body could function as a coordinating agency and a contact point for international cooperation initiatives. CONCLUSIONS As future Member State of the EU Romania should encourage the ESDP and participate in it. “Conflicts of interests in Europe: NATO – OSCE”. including in the management of ‘frozen conflicts’ in the Community of Independent States. the Republic of Moldova) will become both the western frontier of Russia’s ‘near abroad’ and the eastern frontier of the ‘new neighbourhood’ of the EU. in the near future.Chapter 29 main European politico-military organisation. Romania must promote and act upon the concept of inter-agency cooperation in crisis prevention and management. 366 . the main priority remains the setting up of a National Centre for Crisis Management and a Regional Centre for Crisis Management in Bucharest. and the European Union. In order to enhance the chances for a relevant contribution to the ESDP. no. Under these circumstances Romania could participate. Some specialised departments also need to be established within the Ministry of Foreign Affairs and the Ministry of Defence. to implement ESDP and to provide the necessary expertise for adequate decision-making. Romania can contribute substantially to the successful implementation of the ESDP through the existent human and logistic resources as well as through experiences gathered in peace keeping missions and regional military co-operation. for instance. as the one in Transnistria. the Eastern neighbours of Romania (Ukraine. especially related with crises prevention and post-conflict reconstruction and rehabilitation4. through CFSP/ESDP will support NATO’s ‘heavy-handed’ interventions through ‘soft’ actions. a department of European and EuroAtlantic security should be created at highest governmental level. in Studii de Securitate vol. 4 Ovidiu-Adrian Tudorache. the capability of effectively engaging in big military operations. Consequently to the EU expansion after 2007. From an institutional point of view. 1/2004. The new geopolitical context will require a pro-active involvement of Romania in the policy of the ‘new neighbourhood’ of the EU. The risk of a possible conflict of interest in the Romania-NATO and Romania–EU relations is low because ESDP might not have. in peace keeping operations within ESDP and any other type of military operations together with NATO.

p. 2003. in Studii de Securitate vol. Economica. Bucharest. Bucharest. The European Security And Defence Policy A factor of influence on the actions of Romania in the field of security and defence. 1/2004. 2. 2: The Initial Position Papers for Chapters of Negotiation. Edit. Vol. Florin Bonciu. in Vasile Puscas. pp. 2003.Chapter 29 Bibliography – Position paper on Chapter 27: Common Foreign and Security Policy. 367 . – For the English version of the document see: “Romania’s Position Paper Chapter 27: Common Foreign and Security Policy”. Research paper. 796. Editura Economica. Negociind cu Uniunea Europeana. in Vasile Puscas. no. The European Institute of Romania. Negotiating with the European Union. 784. 2004. Adrian Pop. – Liviu Muresan. “Conflicts of interests in Europe: NATO – OSCE”. – Ovidiu-Adrian Tudorache. Volumul 1: Documente initiale de pozitie la capitolele de negociere. Bucharest.

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