As part of East Anglia Bylines second birthday celebration, we’re running an “Editors Pick” throughout this week. Each of our 8-strong editorial team was given a category and asked to choose an article from it, from our output over the last year, which we believe deserves a second outing.
Our final article was chosen by Peter Thurlow, Commissioning editor. He says, “When we launched Our place in Europe?, our intention was to examine honestly how we might become members of the EU again. It was Jacob Öberg who reminded us that the EU is rules-based, and that ‘re-joining’ as such is not an option. That came as a shock to many readers but earned applause from leading commentators for its honesty.”
There has been a recent surge of support in various polls among British population for the UK to re-join the European Union (EU). So what is the case for re-joining the EU? Rather than discussing the politics of a re-join campaign, this article will outline the key legal and political conditions.
There is no ‘re-join’ process
First and most importantly, the UK cannot simply re-join the EU – there is no specific ‘easier’ pathway for a country that has left the EU to re-join. Under EU law the UK is now a third country so would have to reapply and undergo the whole accession procedure from scratch. Article 49 of the Treaty of European Union (TEU) guides accession. It shows the procedure might be a cumbersome political process.
Article 49 TEU
This article establishes how a country can join the EU: “Any European State” which respects the common EU values and is “committed to promoting them may apply to become a member of the Union.” The common values in Article 2 TEU include respect for human dignity, freedom, democracy, equality, the rule of law, human rights (specifically minority rights), pluralism, non-discrimination, tolerance, justice, solidarity and equality. Applicants must show commitment to these by membership of the Council of Europe (the UK is a member), through being party to various treaties such as the International Covenant on Civil and Political Rights, and through domestic legislation.
Procedure to apply (re-join)
The procedure under Article 49 TEU envisages that the UK first drafts a letter of application to the European Council, represented by the state holding the rotating Presidency. The Council consults the European Commission (this is the central part of the process) and asks the Commission to assess the applicant’s ability to meet the Copenhagen criteria.
The Copenhagen criteria were decided at a European Council meeting in Copenhagen in 1993, and they outline further requirements (additional to Article 49 TEU) for EU membership:
- Political criteria: stability of institutions guaranteeing democracy, the rule of law, human rights and respect for and protection of minorities;
- Economic criteria: a functioning market economy and the capacity to cope with competition and market forces;
- Administrative and institutional capacity to effectively implement the acquis and ability to take on the obligations of membership.
The political criteria are now regarded as being incorporated into the TEU and Charter on Fundamental Rights. The Copenhagen criteria are a control mechanism to ensure that the applicant state is a stable free market democracy with full control over its territory and institutions, so that EU law can be implemented in practice.
Commission assesses application
The Commission then assesses whether the applicant is suitable, not for membership, but for negotiations towards membership. The Commission makes its recommendation either to grant candidate status or to ask for changes. The candidacy recommendation needs to be approved by the Council and the European Council, unanimously, in order to proceed. After this, the applicant state becomes a ‘candidate’ state. It should not be a stretch for any developed democracy to satisfy the Treaty and Copenhagen criteria. It is unlikely the UK would encounter difficulties.
Based on the Commission’s opinion, the Council decides on a negotiation mandate. Negotiations are undertaken by the Commission on behalf of member states. They are formally opened on a subject-by-subject basis. The UK would have to demonstrate it satisfied the Copenhagen criteria, and secure agreement that it had the political will required, and that the EU had institutional capacity to admit it. The EU reserves the right to decide when a candidate country has met these criteria and can be accepted as a new member.
How long will it take?
On average it has taken approximately nine years for a current member from submitting a membership application to signing an accession treaty. In the major enlargement of 2004 when Cyprus, the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Slovakia, and Slovenia joined the EU, it took nine years for most of these member states from application to signing an accession treaty. However, if the UK does not diverge too significantly from EU regulations and maintains a stable economy and well-functioning political institutions, accession may be faster. (It took Sweden and Finland only three years from application to the signing of an accession treaty).
Further conditions for UK to re-join and opt-outs
In addition to the Copenhagen criteria, member states can ask for more specific eligibility criteria. Joining the Euro and Schengen area (which has been a major discussion point in UK debates) are requirements for new member states – although Denmark has an opt-out from the Euro and Ireland has an opt-out from Schengen. Croatia, Cyprus, Romania and Bulgaria have yet to join the Schengen area but are legally obliged to. Seven countries – Bulgaria, the Czech Republic, Denmark, Hungary, Poland, Romania, and Sweden – are EU members but do not use the Euro.
The EU would expect any application to be on the understanding that the UK would be a more “normal” member state. The UK’s major concessions during its first EU membership – budget rebate, opt-outs on the Euro and special justice and home affairs arrangements – would probably not be on offer.
Article 49 TEU specifies that EU member states acting in the Council must agree unanimously before a new member is admitted, and the Parliament must also agree by an absolute majority of its members. If all negotiations are concluded successfully, ratification and implementation would follow. A treaty is then signed and ratified, and membership begins on the specified day.
The key hurdles for the UK in re-joining the EU are mainly political and not legal:
- It would be a major challenge to obtain sufficient political support within the UK for a political decision by the UK government to submit an initial application – the key first step. Anand Menon has predicted this may take more than a decade, which is arguably realistic.
- Obtaining support from all EU member states will be difficult. There will be sensitive political negotiations for several years to secure an accession deal between the EU and UK.
- The more the UK diverges from the EU and EU law, the more complex it will be for the UK to re-join.
So even if political backing in the UK remains strong (and the EU might expect at least 60–65% for several years), the UK has a very long path ahead to re-joining the EU.