Accession Negotiations

For a successful completion of the accession process every candidate country was required to fully meet the Copenhagen Criteria which were formulated by the European Council in 1993. The political criterion demanded the “stability of institutions guaranteeing democracy, the rule of law, human rights and the respect and protection of minorities”. The

two economic criteria asked for “the existence of a functioning market economy as well as the capacity to cope with competitive pressure and market forces within the Union”. The latter meant that national competition law had to be adapted to the central provisions of the EU-level, i.e. abuse of a dominant position, merger control or subsidies.

The export of EU competition law to the accession countries did on the one hand influence the political-economic thinking of national reform elites; on the other it shaped the concrete implementation of competition law provisions according to EU standards.¹⁴¹ In addition, the European Council demanded from the candidate countries the “ability to take on the obligations of membership, including adherence to the aims of political, economic and monetary union” (European Commission 1994). The latter criterion refers to the capacity of the CEECs to implement the acquis communautaire and to ensure its effective application through appropriate administrative and judicial structures.

The first stage of the accession negotiations commenced with the ratification of the Europe Agreements, also called ‘Second Generation Agreements’.¹⁴² Primary goal of the Europe Agreements was the creation of a bilateral free-trade area, mainly based on the mutual abolishment of restrictions for market entry. In this first phase of the enlargement process the EU offered the CEECs the prospect of membership by establishing the same structures as the former in course of institution-building. The Agreements were designed to assist the new partners to devise adequate, well balanced and appropriate legal instruments to enhance their mutual integration (Horovitz 1991: 55). As Estrin and Holmes (1998: 7) point out, the Europe Agreements can be interpreted as creating “a de facto rather than a de jure obligation for the CEECs to make internal competition law correspond to EU rules”.

The idea behind this form of ‘institution-copying’ was that the CEECs could take over an already existing institutional system, that of the EU, for which considerable

141 With regard to competition policy, the EU subdivided the economic criteria into three further criteria that have to be met before negotiations could be closed. These are, first, the necessary legislative framework, second, an adequate administrative capacity, i.e. a functioning NCA, and, finally, a credible enforcement record of the acquis (Hölscher and Stephan 2004: 323).

142 The Europe Agreements replaced the ‘First Generation Agreements’, a series of individual trade and cooperation agreements between the EC and some CEECs which were intended to create a new environment of trade and co-operation.

implementation expertise existed. The Europe Agreements were ratified between February 1994 (Hungary and Poland) and February 1999 (Slovenia).

There were nevertheless two problems with regard to the implementation of EU legal provisions. First, many EU rules were designed to prevent unfair competition from foreign countries and not to promote economic efficiency per se. The latter, however, was urgently needed in the transition countries. Second, EU policies, and in particular matters of competition, possess a strong sector-specific or industry orientation with the goal of EU-wide harmonization. In the CEECs, in contrast, the initial task was to abolish the old structures from the era of economic planning with its distinct industrial biases, i.e. the inefficient allocation of resources. The sector-specific focus of EU competition policy, i.e.

in network infrastructures, might have even deterred an accession candidate “from promoting investment in areas where it had a genuine comparative advantage but where this might replace capacity existing elsewhere in Europe” (Estrin and Holmes 1998: 9).

The second phase of the enlargement process started when concrete negotiations about accession began. The first group of CEECs which was offered the possibility to start concrete negotiations with the EU in March 1998 included the Czech Republic, Estonia, Hungary, Poland and Slovenia (‘Luxembourg Group’). Negotiations with the remaining five CEECs, Bulgaria, Latvia, Lithuania, Romania and the Slovak Republic, started February 2000 (‘Helsinki Group’). Until these two dates, there was no de jure requirement for the applicant countries to take over the EU’s competition policy. With the beginning of the concrete accession negotiations, however, the CEECs are required to fully implement the acquis within a defined time period.

To this end, the acquis was divided into 31 chapters which cover all relevant policy fields, ranging from the four freedoms in the Single Market over external relations, education to culture policy and consumer protection. The corresponding negotiations between the EU and the applicant states were organized along these chapters. By fall of 1998 the first chapters were opened and by the end of 2002 negotiations on all chapters had provisionally been closed, except with Bulgaria and Romania which needed significantly more time to complete negotiations. On 13 December 2002, the European Council in

Copenhagen decided about the accession of ten new EU members, including eight CEECs plus Cyprus and Malta. The signing of the Treaties of Accession took place in Athens on 16 April 2003, and the date for the beginning of full EU-membership was set to 1 May 2004.