Admission with brakes, under scrutiny even after accession: The EU treaty could contain measures that Bulgaria and Romania had

The Treaty on the Accession of Montenegro to the European Union (EU) will likely contain safeguards similar to those prescribed in the case of the admission of Bulgaria and Romania to that community - "Vijesti" learns from a diplomat from an EU member state, who is familiar with the negotiation process of Montenegro, but also with those led by Bulgaria and Romania. Among these safeguards, those relating to the rule of law, including the judiciary, have a special place.

Romania and Bulgaria signed the EU Accession Treaty in April 2005, with the accession date set at 1 January 2007. The Act of Accession provided for safeguard clauses, monitoring and the possibility of postponing accession. The safeguard clause in the area of ​​justice and home affairs is defined in Article 38 of the Treaty, and the possibility of postponing accession in Article 39.

The first states that if there are serious shortcomings, or an imminent risk of them, “in the transposition, implementation or application of the rules in the field of criminal law, mutual recognition of judicial decisions and civil judicial cooperation, the European Commission may adopt appropriate measures within three years of accession”.

They, as it says, may include the temporary suspension of the application of certain provisions and decisions in relations between Bulgaria or Romania and one or more member states.

“These measures may take the form of a temporary suspension of the application of relevant provisions and decisions in relations between Bulgaria or Romania and any other Member State or several Member States, without prejudice to the continuation of close judicial cooperation,” the agreement states.

As it is added, the safeguard clause could have been activated even before accession, based on monitoring findings, and the adopted measures could have entered into force from the first day of accession, unless they provided for a later date.

It was stipulated that the measures would be maintained “only for as long as strictly necessary and, in any case, lifted when the identified deficiencies were remedied.” However, they could be applied beyond the period specified in the first paragraph, as long as those deficiencies persisted, the document states.

"In accordance with the progress made by the new Member State in addressing the identified shortcomings, the Commission may, after consulting the Member States, adjust the measures as necessary," it states.

The possibility of postponing accession is specified in Article 39 of the Treaty, which states that if the European Commission's monitoring shows clear evidence that Bulgaria or Romania are not ready to meet the conditions for membership in important areas by 1 January 2007, the EU Council may unanimously decide to postpone the accession of these countries for one year, i.e. until 1 January 2008. This mechanism was not applied, and both countries entered the EU on 1 January 2007.

A special possibility of a qualified majority decision was also envisaged for Romania if there were serious shortcomings in fulfilling the obligations under certain annexes, especially in the field of competition.

Safeguard clause for the internal market

Article 36 of the treaty provided for safeguard measures in the event of economic difficulties. If, as it was stated, serious and persistent difficulties arose in a sector of the economy within three years of accession, or if there was a serious deterioration in the economic situation in a given area, Bulgaria or Romania could request authorisation to introduce safeguard measures. Member States could do the same in respect of Bulgaria, Romania or both countries.

The Commission, at the request of the state, shall urgently determine the measures it deems necessary, along with the conditions and manner of their implementation, the contract states.

"If Bulgaria or Romania fail to fulfil the obligations undertaken during the accession negotiations, and this causes a serious disturbance in the functioning of the internal market or an imminent risk of such a disturbance, the Commission may take appropriate measures within three years after accession," reads Article 37, which provides for safeguard measures for the internal market.

These measures must be proportionate. They must not be used as a means of arbitrary discrimination or a disguised restriction on trade between Member States. They may be activated even before accession, based on the findings of monitoring, and shall apply from the first day of membership unless otherwise specified, the document states.

The annexes to the agreement also define multi-year deadlines for harmonization in areas such as: environment, agriculture, veterinary and phytosanitary standards, transport, energy, taxation, state aid, freedom of movement of workers, purchase of agricultural land, food safety, etc.

For example, certain environmental directives could only be applied a few years after accession, certain power plants or landfills were given deadlines for compliance, there were deadlines for banning the sale of non-compliant food products (milk and dairy products), old EU members could limit access to the labor market for Bulgarians and Romanians for up to seven years...

The working group, which is to draft the accession treaty for Montenegro, held its inaugural meeting on May 13. The Cypriot presidency of the Council of the EU said at the time that this “important step” sends a strong and positive message that enlargement remains a credible and promising priority, and that the European future of the Western Balkans is progressing steadily.

European Commissioner for Enlargement Marta Kos After that she wrote on social media that this is a big step towards Montenegro's membership in the Union, a clear recognition of progress and an incentive to accelerate reforms.

As she added, this provides an opportunity to draw lessons from previous enlargements and to include new and stronger safeguards in future accession treaties, in order to prevent regression in the area of ​​the rule of law and fundamental values.

She has repeatedly said that Montenegro's accession treaty should be the first in a "new generation" of treaties, with stronger protection mechanisms that, in the event of a setback in the rule of law, would "have teeth" and take serious action.

“Any safeguard mechanism should remain in place for as long as necessary, but our treaties are clear - they must not create a 'two-tier' membership for countries that are fully aligned with the EU acquis. Simply put: if new members respect the rules, these safeguard mechanisms will not even be noticed. But if countries go backwards on our fundamental values, such as the rule of law, these mechanisms must act strongly,” Kos said at the enlargement conference in Tallinn in February.

As a protective mechanism, the abolition of the veto right for new member states has been frequently mentioned recently, in order to avoid a repeat of the situation with Hungary, which, under the former Prime Minister Viktor Orban, blocked some important decisions by Brussels, including those related to aid to Ukraine.

The main negotiator of Montenegro with the EU Predrag Zenović Last week, at a session of the Parliamentary Committee on European Integration, he said that the Government expects the working group for drafting the Accession Treaty to complete its work not much later than the closing of the last negotiation chapter, in order to meet the goal of Montenegro becoming a member of the EU in 2028.

Zenović said that he would not bid on when the working group will complete its work, but that it is known for certain that it will "enter the results of the negotiation chapters into the text" and that it will have "a dominant mandate related to that legal-technical procedure - how to make the negotiation results part of the contract and all accompanying documents."

"Everything else, the broader political framework, what the agreement will look like in political terms - that will be the mandate of COREPER (Committee of Permanent Representatives of the Governments of the EU Member States), but it is important that this work has begun and is proceeding with strong momentum," he said.

Montenegro has 14 closed chapters out of a total of 33 (all are open) in negotiations with the EU. The government's plan is to close all chapters by the end of this year, so that Montenegro can become a member of the Union in 2028.