Constitutional Reforms For European Union Accession

CONSTITUTIONAL REFORMS FOR
ACCEDING TO THE EUROPEAN UNION:

COMPARATIVE STATE PRACTICE

Legal Memorandum

November 2012

Const. Reforms for EU Accession, November 2012

CONSTITUTIONAL REFORMS FOR ACCEDING TO THE EUROPEAN UNION:

Executive Summary

The purpose of this memorandum is to identify and examine common
constitutional reforms states have adopted when acceding to the European Union
(EU, Union, or Community). A comparative analysis into the state practice of
Slovenia, the Czech Republic, Bulgaria, Croatia, and Serbia provides useful
guidance into the accession process for candidates considering EU membership.

To become a member of the European Union (EU or Union), a state is
required to satisfy membership criteria, known as the Copenhagen Criteria.
These criteria obligate states to achieve: (1) stability of institutions guaranteeing
democracy, the rule of law, human rights, and respect for, and protection of,
minorities; (2) the existence of a functioning market economy as well as the
capacity to cope with competitive pressure and market forces within the EU; and
(3) the ability to take on the obligations of membership including adherence to the
aims of political, economic, and monetary union. Moreover, the Madrid Summit
in 1995 established an addition condition that states expand their administrative
infrastructure to ensure effective implementation of the Criteria.

As a result of the requirements imposed by the Copenhagen Criteria,
accession to the EU is generally a complex process that requires a candidate state
to harmonize its legislation with the standards of the legal system of the EU,
known as the acquis communautaire (acquis). While the European Commission
generally looks at the overall legal and administrative infrastructure of the state in
assessing its compliance with the acquis, such harmonization typically requires a
number of institutional changes, including certain constitutional amendments.
Common constitutional reforms include the delegation of some measure of
sovereignty to the European Union, recognition of the primacy of EU law, as well
as additional reforms aimed at aligning domestic state law with the overall
objectives of the EU. These measures include the expansion of voting rights to
non-citizens of the Member States, reinforcement of the independence of the
judiciary, economic and monetary union with the rest of the Community, and the
provision of extradition of a states citizens to other Member States.

In most instances, states adopted constitutional reforms only to the extent
that existing constitutional provisions conflicted with Community law. For
instance, many states had to change constitutional provisions prohibiting the

extradition of their citizens in order to comply with the European Arrest Warrant
framework, allowing for extradition of a states citizens to other Member States.
Similarly, many states had to reform their constitutions due to provisions limiting
property ownership over land for foreigners only to inheritance. Such provisions
were amended to permit land ownership for foreigners in accordance with EU law.
States also adopted constitutional amendments to provide for explicit mention of
the states relationship with the European Union. For instance, some states
adopted amendments to include language allowing the state government to
delegate some of its sovereignty to international institutions, such as the European
Union, based on a treaty or referendum adopted by the state.

In instances where the state did not have a conflicting constitutional
provision, or a particular area of EU law was not mentioned in the states
constitution, the European Commission would simply urge the acceding state to
adopt lower-level measures or strategic national plans to achieve the same
measure. For instance, many states that were deemed to have functional market
economies in line with the Copenhagen Criteria were still encouraged to eliminate
trade barriers or increase anti-corruption efforts, but not necessarily through
constitutional reform. In addition, although some states constitutions continued to
have seemingly contentious constitutional provisions, such states were nonetheless
allowed to accede because the Commission concluded they had the administrative
infrastructure necessary to sustain political and economic stability in accordance
with the acquis.


TABLE OF CONTENTS

Statement of Purpose 1

Introduction 1

The Copenhagen Criteria 2
Political Criteria 3
Economic Criteria 3
Acceptance of Community Acquis Communautaire 4

Common Constitutional Reforms for EU Accession 6
Delegation of Sovereignty to the European Union 6
Primacy of European Community Law 7
Economic and Monetary Union 10
Independence of the Judiciary 11
European Citizenship and Voting Rights 11
Extradition of Nationals 12

Comparative State Practice 13
Slovenia 13
Economic Criteria 14
Adoption of the Acquis 15
Czech Republic 15
Adoption of Acquis 17
Bulgaria 18
Adoption of Acquis 21
Croatia 22
Serbia 25

Conclusion 27
1
CONSTITUTIONAL REFORMS FOR ACCEDING TO THE EUROPEAN UNION:

Statement of Purpose

The purpose of this memorandum is to identify and examine common
constitutional reforms states have adopted when acceding to the European Union
(EU, Union, or Community). A comparative analysis into the state practice of
Slovenia, the Czech Republic, Bulgaria, Croatia, and Serbia provides useful
guidance into the accession process for candidates considering EU membership.

Introduction

After the fall of the Soviet Bloc in the early 1990s, the EU began to receive
letters of application for membership from Central and Eastern European (CEE)
states.
1
The European Council (Council) agreed upon the conditions and terms for
enlargement of membership at the Copenhagen Summit in 1993.
2
The Council is
comprised of the heads of government of the Member States along with the
President of the European Commission and the President of the European Council,
and is responsible for defining the political direction and priorities of the Union.
3

The Council decided that any of the CEE states could accede as soon as that state
was able to assume the obligations of membership by satisfying the economic and
political conditions required.
4
These conditions, known as the Copenhagen
Criteria, include the establishment of stable political institutions, a functioning
market economy, and a willingness to accept the longer-term political and
economic objectives of the EU.
5
The Copenhagen Criteria was affirmed in 1995 at
the Madrid Summit, where a condition to develop and strengthen the
administrative and structural institutions necessary to implement and harmonize
domestic law with EU law was added.
6

1
Tanja Marktler, The Power of the Copenhagen Criteria, 2 CROATIAN YEARBOOK OF EUROPEAN LAW AND POLICY
243, 245 (2006). See also L. Massai, the EU Enlargement, THE KYOTO PROTOCOL IN THE EU, p. 8 (2011).
2
European Council in Copenhagen, Conclusions of the Presidency, 12 (Jun. 21-22, 1993), available at
http://ec.europa.eu/bulgaria/documents/abc/72921_en.pdf; see also Bart M.J. Szewczyk, Enlargement and
Legitimacy of the European Union, 30 POLISH YEARBOOK OF INTERNATIONAL LAW 131, 143 (2010).
3
European Council, the Institution (last visited Nov. 27, 2012), available at http://www.european-
council.europa.eu/the-institution.
4
European Council in Copenhagen, Conclusions of the Presidency, 12 (Jun. 21-22, 1993).
5
6
European Council in Madrid, Conclusions of the Presidency, sec. III(A) (Dec. 15-16, 1995), available at
http://www.europarl.europa.eu/summits/mad1_en.htm.
2
As a result of the Copenhagen Criteria, the accession process generally
begins with a screening stage in which the European Commission (Commission)
examines how well the state is prepared to meet its obligations for membership.
7

In contrast to the Council, the Commission represents the interests of the EU as a
whole.
8
It is comprised of twenty-seven Commissioners (one from each Member
State) and is responsible for proposing new legislation and making sure EU law is
correctly applied by Member States.
9
The Commission decides whether it is open
to direct negotiations or whether the candidate state is required to first meet a set of
opening benchmarks before negotiations may begin.
10
The negotiations stage is
comprised of structured meetings and dialogue between the candidate state and the
EU Council to assess the political and economic conditions of the candidate state.
11

The negotiations stage also involves the adoption of established EU law, as well as
the implementation of any necessary judicial, administrative, and economic
reforms to comply with it.
12
Because a states constitution is generally the supreme
law of the land, these reforms often have constitutional implications as well.

The Copenhagen Criteria

As mentioned above, the Copenhagen Criteria is the set of conditions
required for EU membership. In particular, candidate states are required to
achieve: (1) stability of institutions guaranteeing democracy, the rule of law,
human rights, and respect for, and protection of, minorities; (2) the existence of a
functioning market economy as well as the capacity to cope with competitive
pressure and market forces within the Union; and (3) the ability to take on the
obligations of membership including adherence to the aims of political, economic,
and monetary union.
13
States are also required to adapt their institutional structures
to create proper conditions for harmonious integration into the EU.
14
This
requirement ensures that acceding states not only adopt the legislative
infrastructure, but are also prepared to properly apply and enforce the law.
15
By

7
European Commission, Steps Toward Joining (2012), available at http://ec.europa.eu/enlargement/policy/steps-
towards-joining/index_en.htm.
8
European Commission, European Commission at Work (2012), available at
http://ec.europa.eu/atwork/index_en.htm.
9
European Commission, European Commission at Work (2012).
10
European Commission, Steps Toward Joining (2012).
11
12
13
European Commission, Accession Criteria (last visited Nov. 20, 2012), available at
http://europa.eu/legislation_summaries/glossary/accession_criteria_copenhague_en.htm.
14
European Council in Madrid, Conclusions of the Presidency, sec. III(A) (Dec. 15-16, 1995).
15
Paulina Rezler, The Copenhagen Criteria: Are They Helping or Hurting the European Union?, 14 TOURO
INTERNATIONAL LAW REVIEW 390, 392-93 (2011).
3
adding this requirement, the Council addressed its concern that candidate states
would act to meet the requirements of accession, but fail to develop a mechanism
for further success within the EU.
16

Political Criteria

The first set of conditions is primarily political, with the aim of harmonizing
the applicant states domestic legal infrastructure with the principles of democracy
and the rule of law.
17
The European Commission defines democracy in terms of
free and fair elections, political pluralism (including recognition of the opposition),
freedom of expression and freedom of religion, as well as independent judicial and
constitutional authorities.
18
The Commission also understands rule of law to
refer to an independent judiciary with suitably qualified judges, and an effective,
trained, and disciplined police force.
19
Rule of law also includes mechanisms to
address administrative decisions, access to courts and the right to a fair trial, and
equality before the law.
20

The EU Council noted that [c]ompliance with the Copenhagen political
criteria is a prerequisite for the opening of any accession negotiations whereas
[e]conomic criteria and the ability to fulfill the obligations arising from
membership have been and must be assessed in a forward-looking, dynamic
way.
21
This means that the establishment of stable democratic institutions is
inviolable, while fulfillment of the economic standards is flexible and may be
assessed prospectively.
22

Economic Criteria

The second condition involves an assessment of whether the candidate state
can show the existence of a functioning market economy, as well as the capacity to

16
INTERNATIONAL LAW REVIEW 390, 392-93 (2011).
17
18
Marise Cremona, Accession to the European Union: Membership Conditionality and Accession Criteria, 25
POLISH YEARBOOK OF INTERNATIONAL LAW 219, 221 (2001).
19
20
21
European Council in Luxembourg, Presidency Conclusions, para. 25 (Dec. 1997), available at
http://www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/en/ec/032a0008.htm.
22
Bart M.J. Szewczyk, Enlargement and Legitimacy of the European Union, 30 POLISH YEARBOOK OF
INTERNATIONAL LAW 131, 150 (2010).
4
cope with the competitive nature of a market economy within the Union.
23
For
Central and Eastern European states, this generally involves opening up domestic
economies to market competition, both within the Union and externally, as part of
the EUs trade policy.
24
The Commission also looks at whether macroeconomic
price stability has been achieved and the balance between demand and supply
allows for the free interaction of market forces.
25
Rule of law and a functioning
legal system are also assessed.
26
In particular, candidate states ought to have
efficient judicial procedures that provide for the enforcement of contracts and the
protection of property rights.
27

In assessing the candidate states competitiveness, the Commission is not
only concerned with strains on the economic policies of the potential new member,
but also with the global competitiveness of the EU as a whole.
28
The candidate
states economic policies have to be in harmony with the Unions existing policies
designed to boost employment and foster competition.
29
The Commission also
examines the candidate states broad economic policy and the extent to which
government regulation influences competition in the market, such as state
assistance, subsidies, and antitrust laws.
30

Acceptance of Community Acquis Communautaire

The third Copenhagen criterion refers to the ability of the candidate state to
take on the obligations of membership, including adherence to the aims of
political, economic, and monetary union.
31
The acquis communautaire (acquis) is
the body of EU rules, political principles, and judicial decisions that a candidate

23
24
25
26
See European Commission, Enlargement Strategy and Main Challenges 2011-2012, 40 (Oct. 12, 2011), available
at http://ec.europa.eu/enlargement/pdf/key_documents/2011/package/strategy_paper_2011_en.pdf.
27
POLISH YEARBOOK OF INTERNATIONAL LAW 219, 224 (2001); see also European Commission, Enlargement Strategy
and Main Challenges 2011-2012, 41 (Oct. 12, 2011).
28
29
30
31
5
state is required to accept.
32
It is divided into thirty-one different chapters,
which form the bases for the accession negotiations between the Commission and
the candidate state.
33
These chapters include: the free movement of goods,
services, persons, and capital; policies on agriculture, transportation, consumer
protection, and energy; and foreign, security, and defense policy, among many
others.
34
The acquis includes not only the adoption of binding legislation adopted
under the Treaty of the European Union (TEU), but also requires that states
harmonize domestic law and policy with the decisions of the European Court of
Justice and other non-binding measures adopted under the Union treaties.
35
Unlike
the other Copenhagen Criteria, acceptance of the acquis requires a forward-looking
commitment by both the acceding state and the existing members of the Union.
36

The European Council reconfirmed the Copenhagen Criteria at the Madrid
Summit in December 1995 and added the condition that candidate states expand
administrative structures to effectively apply and enforce EU law.
37
This criterion
aimed to ensure that new members would be able to maintain political stability and
economic competitiveness through developed infrastructure and technical
knowledge.
38
Implementation of legislation was not enough; acceding states
needed to establish the internal mechanisms necessary for enforcement, including
the development of management systems and the provision of training for civil
servants, public officials, judges, and financial controllers.
39
For instance, during
Polands accession process, the Commission found that, although the state had the
legal framework necessary to combat organized crime, it still had to strengthen its
Ministry of Internal Affairs and Ministry of Justice to provide the administrative
infrastructure necessary to effectively enforce its laws.
40
This included training of

32
Heather Grabbe, European Union Conditionality and the Acquis Communautaire, 3 INTERNATIONAL POLITICAL
SCIENCE REVIEW, 249, 251-252 (2002); see also European Commission, Glossary: Acquis (July 9, 2012), available
at http://ec.europa.eu/enlargement/policy/glossary/terms/acquis_en.htm.
33
European Commission, Glossary: Chapters of the Acquis (July 9, 2012).
34
European Commission, Glossary: Chapters of the Acquis (July 9, 2012).
35
36
Antonija Petricusic and Ersin Erkan, Constitutional Challenges Ahead the EU Accession: Analysis of the Croatian
and Turkish Constitutional Provisions that Require Harmonization with the Acquis Communautaire,
INTERNATIONAL STRATEGIC RESEARCH ORGANISATION (USAK) 133 (2010), available at
http://www.usak.org.tr/dosyalar/dergi/JxS6ff7qsmR9xCUOsnfbtde1POQaB7.pdf.
37
Tanja Marktler, The Power of the Copenhagen Criteria, 2 Croatian Yearbook of European Law and Policy 243,
245 (2006).
38
INTERNATIONAL LAW REVIEW 390, 392 (2011).
39
40
6
scientific prosecutors, civil police, and forensic police in the treatment of
fingerprints and criminal analysis.
41

Common Constitutional Reforms for EU Accession

Because candidate states are required to harmonize domestic legislation with
EU law, the accession process often requires a number of legislative and
institutional changes.
42
The European Council, existing Member States, and the
applicant state sign accession agreements, which are draft documents that generally
bind candidates to follow a structured plan of social, economic, and legal
reforms.
43
Because state constitutions are generally the supreme authority for any
state, candidates often have to reform their constitutions as part of the accession
process.
44
For instance, states generally have to amend provisions regarding
supremacy of the law, monetary policy, and voting rights, among others.
45

Delegation of Sovereignty to the European Union

Where international law or international institutions are not already
mentioned in their constitutions, candidate states generally incorporate language
that provides for the delegation of sovereignty. Some states amend their
constitutions by explicitly delegating sovereignty to the European Union, while
others simply refer to an international organization, association, or agreement.
Both Poland and the Czech Republic refer only to international organizations
rather than the EU itself. For instance, Article 90 of Polands Constitution
provides that the Republic of Poland may, by virtue of international agreements,
delegate to an international organization or international institution the competence
of organs of State authority in relation to certain matters.
46
Similarly, Article 10
of the Czech Republics Constitution provides that promulgated international
agreements, the ratification of which has been approved by the Parliament and

41
42
INTERNATIONAL STRATEGIC RESEARCH ORGANISATION (USAK) 133, 135 (2010).
43
44
Alfred E. Kellermann, Preparation of National Constitutions of Candidate Countries for Accession, FIFTH
EUROPEAN CONFERENCE ORGANIZED BY THE EUROPEAN INSITUTTUE OF PUBLIC ADMINISTRATION, 2 (Mar. 4-5, 2002).
45
46
POLAND CONST., art. 90 (1997), available at http://www.sejm.gov.pl/prawo/konst/angielski/kon1.htm.
7
which are binding on the Czech Republic, shall constitute a part of the legal order;
should an international agreement make provision contrary to a law, the
international agreement shall be applied.
47

Alternatively, the Constitution of Slovakia explicitly transfers sovereignty to
the European Communities and European Union. Specifically, Article 7(2) of
Slovakias Constitution provides that the state may transfer the exercise of a part
of its powers to the European Communities and the European Union.
48

Constitutional provisions such as these are necessary where state sovereignty and
the authority to set social, economic, and political policies are reserved solely for
the state government.

Primacy of European Community Law

Although the TEU does not expressly regulate the issue of primacy between
Community and domestic law when a conflict of law arises, Article 4 does impose
a duty on Member States to adopt any appropriate measure, whether general or
particular, to ensure fulfillment of the obligations arising out of this Treaty or
resulting from the acts of the institutions of the Union.
49
Moreover, Member
States are required to facilitate the achievement of the Unions tasks and refrain
from any measure which could jeopardize the attainment of the Unions
objectives.
50
The European Court of Justice also declared that Member States are
required to abide by the principle that Community law takes primacy over the
states domestic laws.
51
As such, candidate states often reform their constitutions
to incorporate Community law into their legal systems, either by accepting the full
primacy of EU law or limiting acceptance on the condition that it does not conflict
with the states constitution.
52
Alternatively, some states rely on their relevant
constitutional courts to determine the primacy of European Community law.

The Czech Republic has accepted the full primacy of EU law in its
Constitution. In 2002, during the Czech Republics accession process, the
Constitution was amended to include two relevant provisions establishing the

47
CZECH REPUBLIC CONST., art. 10 (1992), available at http://www.hrad.cz/en/czech-republic/constitution-of-the-
cr.shtml.
48
SLOVAKIA CONST., art. 7(2) (1992), available at http://www.concourt.sk/en/A_ustava/ustava_a.pdf.
49
Consolidated Version on the Treaty on European Union, art. 4(3) (2010), available at http://eur-
lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2010:083:0013:0046:EN:PDF.
50
Consolidated Version on the Treaty on European Union, art. 4(3) (2010).
51
See, e.g., Judgment of the Court of Justice, Costa v. ENEL, Case 6/64 (15 July 1964).
52
Lucia Serena Rossi, How Fundamental Are Fundamental Principles? Primacy and Fundamental Rights After
Lisbon, 27 YEARBOOK OF EUROPEAN LAW 65, (2008), available at
http://yel.oxfordjournals.org/content/27/1/65.short.
8
primacy of Community law. Article 1 was amended to include a paragraph
requiring the Czech Republic to observe its obligations resulting from
international law.
53
Moreover, Article 10 was rewritten to establish that
[p]romulgated treaties, to the ratification of which Parliament has given its
consent and by which the Czech Republic is bound, form a part of the legal order;
if a treaty provides something other than that which a statute provides, the treaty
shall apply.
54
The provision had originally provided for only international treaties
concerning human rights to take precedence over domestic law.
55

Most states, however, reform their constitutions to provide for the primacy
of Community law subject to compatibility with constitutional provisions. For
instance, the Romanian Constitution assigns superiority to the EUs human rights
treaties and the jurisprudence of the European Court of Justice. Article 20(2)
provides, Where any inconsistencies exist between the covenants and treaties on
the fundamental human rights Romania is a party to, and the national laws, the
international regulations shall take precedence, unless the Constitution or national
laws comprise more favourable provisions.
56
Further, Article 148(2) of the
Romanian Constitution provides that the provisions of the constituent treaties of
the European Union, as well as the other mandatory community regulations shall
take precedence over the opposite provisions of the national laws, in compliance
with the provisions of the accession act.
57

Other states did not adopt constitutional reforms and instead relied on the
judgment of their relevant constitutional courts in interpreting existing
constitutional provisions to determine the primacy of EU law. For instance,
Article 34 of the Belgian Constitution provides that [t]he exercising of specific
powers can be assigned by a treaty or by a law to institutions of public
international law.
58
In interpreting this provision, the Conseil dEtat, whose
responsibility is to assess the constitutionality of administrative acts, held in 1996

53
CZECH REPUBLIC CONST., art. 1(3) (1992). See also Eli!ka Wagnerov, The Czech Constitutional Court Doctrines
on Community and Union Law, EUROPEAN COMMISSION FOR DEMOCRACY THROUGH LAW CDL-JU(2006)(024) p. 2
(2006).
54
CZECH REPUBLIC CONST., art. 10 (1992).
55
Eli!ka Wagnerov, The Czech Constitutional Court Doctrines on Community and Union Law, EUROPEAN
COMMISSION FOR DEMOCRACY THROUGH LAW CDL-JU(2006)(024) p. 2 (2006).
56
ROMANIAN CONST., art. 20(2) (1991), available at http://www.cdep.ro/pls/dic/site.page?id=371.
57
ROMANIAN CONST., art. 148(2) (1991).
58
BELGIAN CONST., art. 34 (2007), available at
http://www.dekamer.be/kvvcr/pdf_sections/publications/constitution/grondwetEN.pdf.

9
in Orfinger v. Belgian State that Community law prevails over constitutional law.
59

Moreover, the supremacy of Community law was affirmed by the Cour
dArbitrage, whose role is to monitor the constitutionality of legislative acts.
60

Likewise, the Austrian Supreme Court in 2000 declared that an EU directive has
supremacy over domestic law even if it violates constitutional provisions.
61

On the other hand, some states have placed EU law somewhere between
existing constitutional provisions and federal statutes.
62
For instance, in May of
2005, the Polish Constitutional Tribunal annulled provisions in the Criminal
Procedure Code implementing the European Arrest Warrant Framework by
permitting the surrender of Polish citizens to another EU state.
63
The provisions
violated Article 55 of the Polish Constitution, which absolutely prohibited the
extradition of Polish citizens.
64
The Tribunal, however, delayed annulment of the
provision for eighteen months, declaring that the government had to resolve the
conflict by either amending the Constitution, withdrawing from the EU, or taking
other action.
65
In the Accession Treaty case a few months later, the Tribunal
affirmed the primacy of the Constitution as the supreme legal authority in
Poland, even in cases of conflict with Community law.
66
The Tribunal added,
however, that the interpretation of domestic law has to take into consideration the
principle of sympathetic predisposition towards the process of European
integration and the cooperation between states.
67
In September 2006, to resolve
the conflict in the European Arrest Warrant case, the government passed a

59
Christian Franck, Herv Leclercq, Claire Vandevivere, Belgium: Europeanisation and Belgian Federalism,
FIFTEEN INTO ONE?: THE EUROPEAN UNION AND ITS MEMBER STATES, 69, 83 (2003), available at http://www.uni-
koeln.de/wiso-fak/powi/wessels/DE/PUBLIKATIONEN/texte/TextMaurer/andreas/Belgium.pdf.
60
Christian Franck, Herv Leclercq, Claire Vandevivere, Belgium: Europeanisation and Belgian Federalism,
FIFTEEN INTO ONE?: THE EUROPEAN UNION AND ITS MEMBER STATES, 69, 83 (2003).
61
See Oberster Gerichtshof, Judgment of Mar. 9, 2000, 6 Ob 14/00b, Wirtschaftsrechtliche Bltter 2000, 286-288
(2000), available at http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:52001DC0309:EN:HTML.
62
Lszl Blutman and Nra Chronowski, Hungarian Constitutional Court: Keeping Aloof from European Union
Law, 5 INTERNATIONAL CONSTITUTIONAL LAW JOURNAL, 329, 334 (2011).
63
Judgment of 27th April 2005, P 1/05, Application of the European Arrest Warrant to Polish Citizens (Poland
Constitutional Tribunal, April 27, 2005), available at
http://www.trybunal.gov.pl/eng/summaries/summaries_assets/documents/P_1_05_GB.pdf.
64
Constitutional Tribunal, April 27, 2005).
65
Constitutional Tribunal, April 27, 2005).
66
See Judgment of 11th May 2005, K 18/04, Polands Membership in the European Union (the Accession Treaty),
p. 11 (Poland Constitutional Tribunal, May 11, 2005), available at
http://www.trybunal.gov.pl/eng/summaries/documents/K_18_04_GB.pdf. See also Anneli Albi, Supremacy of EC
Law in the New Member States, 3 EUROPEAN CONSTITUTIONAL LAW REVIEW, 25 (2007), available at
http://kar.kent.ac.uk/424/1/Supremacy_30OCT07DP.pdf.
67
Judgment of 11th May 2005, K 18/04, Polands Membership in the European Union (the Accession Treaty), p. 11
(Poland Constitutional Tribunal, May 11, 2005).
10
constitutional amendment providing an exception to the prohibition to allow for
extradition under the conditions of EU law.
68

Economic and Monetary Union

The European Central Bank (ECB) is the governing institution for Europes
single currency, the euro, and determines EU-wide economic and monetary
policies with the aim of maintaining the euros price stability and purchasing
power.
69
As such, candidate states are required to harmonize domestic economic
policy with EU policy.
70
Some states have formalized the delegation of economic
policy to the ECB in their constitutions. For instance, Article 88 of the German
Basic Law provides that the tasks and powers of the Federal Bank can be
transferred to the ECB for the purpose of securing stability of prices.
71

As a result of the role of the ECB in harmonizing economic policy, conflicts
arise when domestic laws provide for any type of political influence on domestic
banks.
72
This means that constitutional provisions that allow for other state bodies
to exert political influence on the bank may have to be amended to ensure
independence of their banks.
73
For instance, the Croatian Constitution had to be
amended because it granted the Croatian Parliament too much authority over the
Central Bank. The Constitution was changed to provide that the Central Bank
would report on its work to the Parliament,
74
instead of being responsible to
the Croatian Parliament.
75
The amendment also set forth the authority of the
Governor of the Croatian National Bank to manage and operate the Bank.
76
On the
other hand, the Commission does not look at constitutional provisions alone.
Slovenia did not have to amend its Constitution even though it provides that the
governor of the Central bank is directly accountable to the National Assembly.
77

Because of accompanying lower-level legislation and infrastructure guaranteeing

68
World Intellectual Property Organization, the Constitution of the Republic of Poland (last visited Nov. 15, 2012),
available at http://www.wipo.int/wipolex/en/details.jsp?id=7539. See also POLISH CONST., art. 55 (1997).
69
European Central Bank, EU Enlargement and the Euro (last visited Nov. 20, 2012), available at
http://www.ecb.int/ecb/history/enlargement/html/index.en.html.
70
Frank Hoffmeister, Constitutional Implications of EU Membership: A View From the Commission, 3 CROATIAN
YEARBOOK OF EUROPEAN LAW AND POLICY 59, 96 (2008).
71
GERMAN BASIC LAW, art. 88 (1949), available at http://www.servat.unibe.ch/icl/gm00000_.html.
72
73
YEARBOOK OF EUROPEAN LAW AND POLICY 59, 94-96 (2008).
74
CROATIAN CONST., art. 53 (1990).
75
CROATIAN CONST., art. 53 (1990) (2001 version).
76
77
SLOVENE CONST., art. 152 (1991),
11
the independence of the Bank, the Commission determined that constitutional
reform was not necessary.
78

Independence of the Judiciary

Similar to the European Councils concerns for the independence of
financial institutions, some states have also had to reform their constitutions to
ensure the independence of the judiciary. The acquis requires acceding states to
ensure that their legal systems are based on the principle of separation of powers.
79

The executive or legislative branches cannot influence judges and judicial officials,
and internal mechanisms have to exist to ensure impartiality in the decision-
making process.
80
During Romanias accession process, the state adopted a series
of constitutional amendments reforming the judiciary in response to the European
Councils concerns about corruption in the region.
81
For instance, the principle of
the separation and balance of powers between the executive, judicial, and
legislative branches was incorporated into the Constitution.
82
Moreover, certain
criminal procedural guarantees were added, including the right to be released from
detention if no incriminating evidence exists and the prohibition of illegal searches
and seizures.
83
Similarly, the Slovene Constitution had to be amended with regard
to the nomination and probationary procedures for judges to provide for greater
independence of the judiciary.
84

European Citizenship and Voting Rights

According to the Article 19(1) of the Treaty Establishing the
European Community, every citizen of the EU residing in a Member State of
which he is not a citizen has the right to vote and stand as a candidate at
local elections in the Member State in which he resides, under the same

78
European Commission, Regular Report on Slovenias Progress Towards Accession, 41 (2002).
79
Dimitry Kochenov, Why the Promotion of the Acquis Is not the Same as the Promotion of Democracy and What
Can Be Dones in Order to Also Promote Democracy Instead of Just Promoting the Acquis, 2 HANSE LAW REVIEW,
171, 181 (2006).
80
81
Delegation of the European Union to the Republic of Croatia, EC Report: Bulgaria and Romania Need to
Demonstrate Commitment to Rule of Law (Jul. 17, 2012), available at
http://www.delhrv.ec.europa.eu/?lang=en&content=4266.
82
Law for the Revision of the Constitution of Romania, p. 1 (Romania, 1997), available at
http://www.cdep.ro/pdfs/reviz_constitutie_en.pdf.
83
Law for the Revision of the Constitution of Romania, p. 3 (Romania, 1997).
84
12
conditions as citizens of that Member State.
85
As such, many EU Member
States have modified their respective constitutional provisions on the right to
vote.
86
For instance, Article 28(1) of the German Basic Law provides that
in county and municipal elections, persons who possess citizenship in any
Member State of the European Community are also eligible to vote and to be
elected in accord with European Community Law.
87
Likewise, Article
16(4) of Romanias Constitution was amended to grant citizens of the EU
the right to elect and be elected to office.
88

Extradition of Nationals

Some Member States modified relevant constitutional provisions
following the European Court of Justices 2002 decision requiring Member
States to surrender persons to another Member State if the latter issues a
European Arrest Warrant.
89
States amended existing constitutional
provisions prohibiting the extradition of their citizens to provide an
exception under the European Arrest Warrant Framework. Some states,
such as Slovenia, Bulgaria, and Romania, amended their constitutions to
comply with the decision prior to EU accession. For instance, Article 19(1)
of the Romanian Constitution provides that Romanian citizens can be
extradited based on the international agreement Romania is a party to.
90

Other states, such as Poland and Cyprus, only amended their
constitutions after the provisions were challenged in their respective
constitutional courts.
91
As mentioned earlier, the Polish government
amended Article 55 of the Constitution, prohibiting the extradition of Polish
citizens only after the Polish Constitutional Tribunal declared a revision in

85
86
87
GERMAN BASIC LAW, art. 28(1) (1949).
88
ROMANIAN CONST., art. 16(4) (1991). See also Frank Hoffmeister, Constitutional Implications of EU
Membership: A View From the Commission, 3 CROATIAN YEARBOOK OF EUROPEAN LAW AND POLICY 59, 92-93
(2008).
89
90
ROMANIAN CONST., art. 19(1) (1991).
91
13
the Criminal Procedure Code unconstitutional.
92
Although Cyprus entered
the EU in 2004, it did not amend its constitutional provisions prohibiting the
extradition of Cypriot citizens until after the Supreme Court of Cyprus
declared a domestic law implementing the European Arrest Warrant as
unconstitutional in 2005.
93
In 2006, the government amended the provisions
of Article 11 of the Cypriot Constitution to allow for the arrest or detention
of citizens and foreigners in Cyprus in accordance with the EU law.
94

Comparative State Practice

Comparative analysis of the state practice of some of the European Unions
most recent members provides useful guidance into the accession process for
candidate states. An assessment of specific constitutional amendments and related
provisions these states have had to undertake will illustrate the necessary legal and
administrative reforms required of states in the accession process.

Slovenia

Accession negotiations with Slovenia were concluded on December 13,
2002 and the Treaty of Accession was signed on April 16, 2003. The Treaty of
Accession was approved via referendum the following year,
95
and the date for
accession was set for May 1, 2004.
96
The negotiations process lasted for five
years, between 1998 and 2003, alongside nine other Central and Eastern European
states.
97

92
Rafal Manko, the Polish Tribunal in the European Union, INTEGRATION OR ABPSORPTION? LEGAL DISCOURSE IN
AN ENLARGED UNION, sec. 3.2.1 (Sept. 26-28, 2006), available at http://www.mzes.uni-
mannheim.de/projekte/typo3/site/fileadmin/research%20groups/2/Hanover2006/Hannover_paper_Manko_DOC.pdf.
93
Council fo the European Union, Decisions of Supreme Courts and Constitutional Courts Concerning the
European Arrest Warrant, Doc. 14281/05, p. 2 (Nov. 11, 2005), available at
http://www.asser.nl/upload/eurowarrant-webroot/documents/cms_eaw_id778_1_CouncilDoc.14281.05.pdf.
94
The Fifth Amendment of the Constitution Law of 2006, p. 3 (Republic of Cyprus, 2006), available at
http://www.olc.gov.cy/olc/olc.nsf/all/EC240D2A9413ABBB4225793A00403484/$file/The%20Fifth%20Amendme
nt%20of%20the%20Constitution%20Law%20of%202006.pdf?openelement.
95
96
European Commission, Comprehensive Monitoring Report on Slovenias Preparations for Membership, (2003),
available at http://ec.europa.eu/enlargement/archives/pdf/key_documents/2003/cmr_si_final_en.pdf.
97
Government Office for Development and European Affairs, Archive Slovenias Accession to the EU,
GOVERNMENT OF REPUBLIC OF SLOVENIA (2012), available at
http://www.svrez.gov.si/en/areas_of_work/archive_slovenias_accession_to_the_eu/.
14
Political Criteria
The European Commission concluded in its 1997 Opinion on Slovenias
application for EU membership that the state had met the political criteria. It
provided that Slovenia is a democracy with stable institutions which guarantee the
rule of law, human rights and respect for, and the protection of, minorities.
98
In
its 2001 Regular Report (now called the annual Progress Reports), the Commission
reaffirmed Slovenias political stability, adding that it had made good progress in
judicial reform and public administration reform.
99
Moreover, the Commission
observed that Slovenia had an independent judiciary, limited problems with
corruption, and had made good progress in the protection of minorities and human
rights.
100
As such, Slovenia was not required to make drastic changes to its
Constitution to fulfill the political criteria for EU accession.

Slovenia, however, did amend several provisions of its Constitution to
enable its integration into the Community. In 2003, Slovenia added Article 3a,
which allowed the state to transfer the exercise of part of its sovereign rights to
international organizations which are based on respect for human rights and
fundamental freedoms, democracy and the principles of the rule of law.
101

Slovenia also amended Article 68 of the Constitution to extend the right to
property ownership over land to foreigners under conditions provided by law or a
treaty ratified by the National Assembly.
102
The original provision had only
granted this right to foreigners through inheritance.
103
Moreover, Article 47 was
amended to implement the European Arrest Warrant and allow for the extradition
of Slovene citizens to other Member States in accordance with EU law.
104

Economic Criteria
In its 2002 Report, the European Commission praised Slovenia for its
substantial reforms to transform the economy and achieve macroeconomic
stability.
105
Since 1997, Slovenia had adopted a number of economic policies and
legislation that provide for the free movement of capital and services, strengthen
the independence of the Central Bank, and sustain economic growth.
106
As a result

98
European Commission, Regular Report on Slovenias Progress Towards Accession, 18 (2002), available at
http://ec.europa.eu/enlargement/archives/pdf/key_documents/2002/sl_en.pdf.
99
100
European Commission, Regular Report on Slovenias Progress Towards Accession, 22-23, 26 (2002). See also
European Commission, Comprehensive Monitoring Report on Slovenias Preparations for Membership, 12 (2003).
101
SLOVENE CONST., art. 3a (1991), available at http://www.servat.unibe.ch/icl/si00000_.html.
102
SLOVENE CONST., art. 68 (1991).
103
Verfassungsvergleich, Slovenia Index (2010), available at http://www.servat.unibe.ch/icl/si__indx.html.
104
SLOVENE CONST., art. 47 (1991).
105
106
European Commission, Regular Report on Slovenias Progress Towards Accession, 30-33 (2002).
15
of this progress, the Commission concluded that Slovenia had a functioning market
economy with the capacity to cope with the EUs competitive pressure and market
forces.
107
Slovenia was commended for decreasing its unemployment rate and
increasing the size of the GDP to the EU average.
108
Although Slovenia was urged
to make some constitutional reforms to meet the political criteria, no constitutional
reforms to meet the economic criteria were necessary. Constitutional provisions
relating to the Central Bank, supported by implementing legislation and
infrastructure, were determined sufficient in establishing the Central Banks
independence.
109

Adoption of the Acquis
Slovenia was similarly praised as making good progress on the
implementation of the acquis, as well as developing institutions necessary for its
enforcement, though there was some room for improvement in certain areas of the
acquis.
110
For instance, while Slovenias legislative framework was aligned with
the objectives of the acquis, administrative capacity and technical assistance were
needed.
111
As mentioned above, Slovenia did adopt some constitutional
amendments regarding the delegation of sovereignty, property rights, and
extradition in order to harmonize its laws with the acquis. Such amendments, as
well as additional lower-level legislative and administrative reforms, led the
Commission to conclude by 2003 that Slovenia was sufficiently on track to meet
its obligations under the acquis.
112

Czech Republic

The Czech Republic signed the Treaty of Accession on April 16, 2003 and
became a member of the European Union on May 1, 2004.
113
Negotiations began
in March 1998 and concluded in December 2002, alongside Slovenia and other
Central European states.
114
Because the Czech Republics Constitution was a
markedly national constitution, greatly emphasizing its sovereignty and

107
108
109
110
111
112
European Commission, Comprehensive Monitoring Report on Slovenias Preparations for Membership, 30
(2003).
113
Embassy of the Czech Republic, Czech Republic and European Union (last visited Nov. 20, 2012), available at
http://www.mzv.cz/dublin/en/about_the_czech_republic/czech_republic_and_european_union/index.html.
114
Embassy of the Czech Republic, Czech Republic and European Union (last visited Nov. 20, 2012).
16
independence, the state had to amend the Constitution to allow for the transfer of
powers through the Constitutional Act No. 395/2001 Sb on June 1, 2001.
115

Political Criteria
The 2001 Amendments changed the language of Article 1 of the
Constitution to include a provision committing the Czech government to observe
its obligations resulting from international law.
116
Moreover, Article 10a was
added in its entirety, allowing for [c]ertain powers of the Czech Republic
authorities [to] be transferred by treaty to an international organization or
institution.
117
Article 10b was also added, obligating the government to inform
the Parliament on issues connected to its obligations under international treaties,
including the TEU.
118
These provisions provide for the delegation of sovereignty
to the EU in full commitment to upholding Community goals of legal, economic,
and political harmony.

In addition, the provisions in the Constitution establishing the jurisdiction
and role of the Constitutional Court were amended to clarify the Courts authority
with regards to Community law.
119
Article 87(2) provides, Prior to the ratification
of a treaty under Article 10a or Article 49, the Constitutional Court shall further
have jurisdiction to decide concerning the treatys conformity with the
constitutional order. A treaty may not be ratified prior to the Constitutional Court
giving judgment.
120
While these provisions do not establish that EU law prevails,
the Court is required to interpret constitutional law taking into account the
principles arising from Community law.
121
Where the Court decides that a treaty
is not in conformity with the Constitution, the treaty may not be ratified.
122

115
COMMISSION FOR DEMOCRACY THROUGH LAW, p. 2 (2006), available at http://www.venice.coe.int/docs/2006/CDL-
JU(2006)024-e.pdf; see also Report of the Constitutional Court of the Czech Republic, the Relations Between the
Constitutional Courts and the other National Courts, Including the Interference in the Area of the Action of the
European Courts, CONFERENCE OF EUROPEAN CONSTITUTIONAL COURTS: XIITH CONGRESS p. 4 (Aug. 27, 2012),
available at http://www.confcoconsteu.org/reports/rep-xii/Tsjechie-EN.pdf.
116
117
CZECH REPUBLIC CONST., art. 10a (1992).
118
CZECH REPUBLIC CONST., art. 10b (1992).
119
COMMISSION FOR DEMOCRACY THROUGH LAW CDL-JU(2006)(024) p. 2 (2006).
120
CZECH REPUBLIC CONST., art. 87(2) (1992).
121
COMMISSION FOR DEMOCRACY THROUGH LAW CDL-JU(2006)(024) p. 5 (2006) (citing to the Sugar Quotas case
Pl. US 50/04).
122
17
Unlike Slovenia, the Czech Republic did not have to adopt any
constitutional amendments referring to extradition of Czech citizens, nor change
any provisions relating to property and voting rights for foreigners. Extradition is
not mentioned in the Czech Republics Constitution. Moreover, constitutional
provisions regarding voting and property rights for foreigners did not violate the
acquis or hinder the free movement of persons and property.
123

Economic Criteria
The Czech Republic did not adopt constitutional reforms to meet the
economic criteria, but rather adopted lower-level reforms on banking laws and
fiscal policies. In its 2002 Report, the European Commission concluded that the
Czech Republic was a functioning market economy and [t]he continuation of its
current reform path should enable the Czech Republic to cope with competitive
pressure and market forces within the Union.
124
The Constitution stipulates that
the President of the Republic will appoint members of the Banking Council,
125
and
that the Czech National Bank is responsible for maintaining price stability and the
Banks powers are governed by statute.
126
The Commission did not mention
constitutional amendments to these provisions in its Progress Reports.
127
Rather,
the Commission commended the Czech Republic for maintaining economic
policies in line with the EU since 1997.
128
In 2002, the Banking Act was amended
to further strengthen the independence of the Czech National Bank.
129

Adoption of Acquis
In its 2003 Report, the Commission commended the Czech Republic for
essentially meeting the requirements for membership with regards to several
chapters of the acquis, including sections on the free movement of goods and
services, banking, social policies, and the coordination of structural policies,
among others.
130
In other areas, including the free movement of persons,

123
See CZECH REPUBLIC CONST., art. 89 (1992). Compare CZECH REPUBLIC CONST., arts. 18-19 (1993) (1993
version), available at http://www.servat.unibe.ch/icl/ez00000_.html.
124
European Commission, Comprehensive Monitoring Report on the Czech Republics Preparations for
Membership, p. 3 (2002), available at
http://ec.europa.eu/enlargement/archives/pdf/key_documents/2003/cmr_cz_final_en.pdf.
125
126
127
European Commission, Enlargement (2012), available at http://ec.europa.eu/enlargement/countries/strategy-and-
progress-report/index_en.htm.
128
European Commission, Regular Report on Czech Republics Progress Towards Accession, p. 39 (2002),
available at http://ec.europa.eu/enlargement/archives/pdf/key_documents/2002/cz_en.pdf.
129
European Commission, Regular Report on Czech Republics Progress Towards Accession, p. 39 (2002),
available at http://ec.europa.eu/enlargement/archives/pdf/key_documents/2002/cz_en.pdf.
130
Membership, p. 53 (2002).
18
agricultural policies, and transportation mechanisms, the Czech Republic needed
immediate improvements.
131
The government responded by passing legislation
and adopting strategies to address these problem areas, but did not pursue
constitutional reform. As mentioned earlier, the government did include an
additional provision in the Constitution expressing the Czech Republics
commitment to abide by its international obligations,
132
which would include the
acquis as provided under the Accession Treaty.

Bulgaria

Bulgaria submitted its application for EU membership in December 1995,
but the European Commission did not present its first report until November
1998.
133
In February 2000, following the Helsinki European Councils decision,
accession negotiations were formally opened.
134
Accession negotiations lasted
until December 2004, and the Accession Treaty was signed on April 25, 2005.
135

Bulgaria was set to join the EU on January 1, 2007.
136
Unlike the previous
enlargement, the Accession Treaty with Bulgaria (and Romania, who also joined
the EU in 2007), included a provision that allowed for the postponement of
accession by one year if the EU saw a serious risk that the state would be unable
to implement the required reforms.
137
Moreover, the Treaty reserved the right of
the EU to intervene in economic and political policies for up to three years after
Bulgarias accession.
138
Unlike Slovenia and the Czech Republic, Bulgaria was
required to institute a number of constitutional reforms to meet the Copenhagen
criteria and, by 2006, still had remaining issues with regards to the accountability
and efficiency of the judicial system and law enforcement bodies.
139

Political Criteria
Following the conclusion of Accession Negotiations, Bulgaria adopted a
number of amendments shortly before the signing of the Accession Treaty on April

131
Membership, p. 54 (2002).
132
133
European Commission, EU-Bulgaria Relations (2007), available at
http://ec.europa.eu/enlargement/archives/bulgaria/eu_bulgaria_relations_en.htm.
134
European Commission, EU-Bulgaria Relations (2007).
135
136
137
Treaty of Accession of Bulgaria and Romania, art. 39 (2005), available at http://eur-
lex.europa.eu/LexUriServ/site/en/oj/2005/l_157/l_15720050621en00290045.pdf
138
Treaty of Accession of Bulgaria and Romania, art. 37 (2005).
139
European Commission, Commission Decisions p. 2 (2006), available at
http://ec.europa.eu/enlargement/pdf/bulgaria/bg_accompanying_measures_1206_en.pdf.
19
13, 2005. In February 2005, Bulgaria amended constitutional provisions relating
to the states participation in the EU, extradition of Bulgarian citizens, and the
political and property rights for European citizens.
140
The amendments also
clarified the authority of the National Assembly to ratify international treaties, and
the responsibility of the Council of Ministers in ensuring Bulgaria met its
obligations under the EU.
141
Article 25 prohibiting extradition was also amended
to provide an exception for the European Arrest Warrant.
142

Although these constitutional amendments were designed to address some of
the primary concerns expressed by the Commission during the negotiations, many
of Bulgarias existing provisions remain inconsistent with EU law and the acquis.
For instance, although Bulgaria amended Article 4(3) to provide for the delegation
of sovereignty once the state became a member, the language of the provision
remains problematic. There is no mention of delegation of sovereignty to the EU
or international organizations; rather, Article 4(3) only mentions that Bulgaria
will participate in the building and development of the European Union.
143

Bulgaria has since amended its Constitution two more times, but has not changed
the language of this particular provision. Moreover, Articles 5(4) and 85(3) limit
the supremacy of ratified treaties and international law only to state statutes and
not the Constitution.
144

Between the signing of the Treaty and accession to membership on January
1, 2007, the Commission closely monitored Bulgarias progress in implementing
the necessary reforms to comply with the acquis.
145
The Unions primary concerns
centered on the independence of the judiciary, combating corruption and money
laundering, and suppressing organized crime.
146
To address these concerns before
its entry into the EU, Bulgaria adopted another series of constitutional amendments
in 2006.
147
Article 70 was amended to clarify and provide for immunity for

140
BULGARIAN CONST., art. 22 (1991), available at http://www.parliament.bg/en/const.
141
See BULGARIAN CONST., art. 22 (1991); compare 1991 BULGARIAN CONST., art. 22 (1991), available at
http://eudo-citizenship.eu/NationalDB/docs/BUL%201991%20Constitution%20of%20Bulgaria%20(English).pdf.
142
BULGARIAN CONST., art. 4(3) (1991).
143
BULGARIAN CONST., art. 25 (1991).
144
See BULGARIAN CONST., art. 5(4) and 85(3) (1991),
145
European Commission, Report on Bugarias Progress in Accompnaying Measures Following Accession, (Jun.
27, 2007), available at http://ec.europa.eu/bulgaria/abc/pre_accession/key_documents/index_en.htm.
146
European Commission, Report on Bugarias Progress in Accompanying Measures Following Accession (Jun. 27,
2007).
147
2007).
20
Members of the National Assembly. Moreover, an office of the Ombudsman was
established to defend the rights and freedoms of citizens.
148

Additional reforms to the judicial sector included clarifying the role and
independence of the Prosecution Office and diminishing the authority of the
Minister of Justice in appointing, disciplining, and removing judges.
149
The
independence of the Judiciary was further strengthened in 2007 (after Bulgarias
official entry into membership) when Bulgaria adopted two more amendments to
address the Commissions concerns. Article 130 was amended to eliminate any
ambiguities in the independence and accountability of the Supreme Judicial
Council and further exclude the Ministry of Justice from influencing the Judiciary.
Article 132 was also amended to establish the independent judicial inspectorate to
monitor the integrity of the judiciary and follow-up on complaints.
150

In addition to these constitutional amendments, the Commission urged the
government to adopt implementing legislation and develop the administrative
structures necessary to execute and apply the reforms. Regulations to evaluate the
professionalism and ethics of magistrates were adopted, and the penal code
reformed to strengthen accountability mechanisms.
151
Additionally, anti-
corruption measures needed to be reinforced, with procedural training provided for
police investigators and ethics training provided for prosecutors and magistrates.
152

Toward this end, the Commission established the Cooperation and Verification
Mechanism in 2006 to monitor and set benchmarks for improving the judicial
sector.
153
The Cooperation and Verification Mechanism continues to monitor the
progress of Bulgaria in reforming its judiciary, still voicing concerns for continued
reforms in the penal code, the provision of protection mechanisms for victims and
witnesses, and improved anti-corruption measures for high-level officials.
154

Economic Criteria
The European Commissions 2006 Report confirmed that Bulgaria had a
functioning market economy and had made significant progress in its fiscal and

148
BULGARIAN CONST., art. 91(a) (1991).
149
2007).
150
European Commission, Report on Bulgarias Progress on Accompanying Measures Following Accession, sec.
3.1 (Jun. 27, 2007); see also BULGARIAN CONST., Ch. 6 (1991).
151
European Commission, Communication from the Commission, p. 14 (2006).
152
European Commission, Communication from the Commission, p. 15 (2006).
153
European Commission, Commission Decisions, p. 2 (2006). See also European Commission, Report on
Bulgarias Progress in Accompanying Measures Following Accession, (Jun. 27, 2007).
154
European Commission, Report on Bulgarias Progress on Accompanying Measures Following Accession, p. 11-
15 (Jun. 27, 2007).
21
wage policies, as well as in the privatization and liberalization of trade.
155

However, certain issues still needed to be addressed, including containing
Bulgarias high external deficit, easing the regulatory framework for businesses
and the labor market, and improving the functioning of the judicial system.
156

Bulgaria has halted its euro membership plans
157
and has not adopted constitutional
provisions in relation to the economic conditions of the Copenhagen Criteria.
158

The existing constitutional provisions provide only that the National Assembly has
authority to elect and remove the Governor of the National Bank.
159
Absent other
conflicting provisions, it is unclear whether the Commission will require
constitutional reform to ensure the independence of the Bank.

Adoption of Acquis
In its 2006 Report, the Commission noted that significant progress has been
made with regard to the free movement of persons, the free movement of services,
including banking and securities, and agriculture and fisheries policies.
160

However, progress is needed in other areas, including preparing for applying the
Schengen acquis, which are rules and regulations arising from the Schengen
Agreement,
161
and meeting the EUs goals for monetary union.
162
In particular, the
Commission noted the vulnerability of Bulgarias borders with regard to
trafficking in human beings and goods, as well as its position as a transit state for
the smuggling of drugs.
163

155
European Commission, Monitoring Report on the State of Preparedness for EU Membership of Bulgaria and
Romania, p. 22 (Sept. 26, 2006), available at
http://ec.europa.eu/enlargement/pdf/key_documents/2006/sept/report_bg_ro_2006_en.pdf.
156
Romania, p. 22-23 (Sept. 26, 2006).
157
Benjamin Fox, Bulgaria Shelves Euro Membership Plans, EUROOBSERVER (Sept. 4, 2012), available at
http://euobserver.com/economic/117415.
158
See BULGARIAN CONST. (1991).
159
BULGARIAN CONST., art. 84(a) (1991).
160
Romania, p. 22 (Sept. 26, 2006).
161
Council of the European Union, the Schengen Acquis, p. 3 (1999), available at
http://ec.europa.eu/enlargement/pdf/key_documents/2006/sept/report_bg_ro_2006_en.pdf.
162
Romania, p. 31 (Sept. 26, 2006).
163
Romania, p. 31 (Sept. 26, 2006).
22
Croatia

Croatia applied for EU membership in 2003 and was in negotiations from
2005 until 2011.
164
Croatia closed accession negotiations with the EU on June 30,
2011,
165
and on December 9, 2011, Croatia signed an Accession Treaty to become
the European Unions twenty-eighth member.
166
The EU expects the ratification
process by the parliaments of the EU Member States to conclude by the end of
June 2013.
167
Thus, Croatias entry into the EU is set for July 1, 2013.
168

Political Criteria
Throughout Croatias accession process, the Commission was primarily
concerned with strengthening the judiciary, combating corruption, and protecting
human rights.
169
To address these concerns, on June 16, 2010, the Croatian
government adopted a number of constitutional amendments in preparation for
accession to the EU.
170
Some revisions were to take effect immediately, while
others referring to the European Union and EU citizens would only take effect
upon Croatias accession to the Community in 2013.
171
Revisions relating to the
protection of minorities and the independence of the judiciary were promulgated
immediately. The government expanded the introduction to the Constitution
describing Croatia as a state of autochthonous national minorities to include
twelve additional ethnic groups as recognized minorities, including Bosniaks and
Roma.
172
Alongside this change, Croatia also passed the Constitutional Act
Amending the Constitutional National Minority Rights Act, which expanded
representation of minorities in the Croatian Parliament, and provided greater
protection for the Serbian minority by recognizing the Serbian National Council.
173

164
European Commission, Croatia (2012), available at http://ec.europa.eu/enlargement/countries/detailed-country-
information/croatia/index_en.htm.
165
European Commission, EU Closes Accession Negotiations with Croatia (Jun. 30, 2011), available at
http://europa.eu/rapid/pressReleasesAction.do?reference=IP/11/824&format=HTML&aged=0&language=EN&guiL
anguage=en.
166
European Commission, Croatia (2012). See also European Commission, EU Closes Accession Negotiations with
Croatia (Jun. 30, 2011).
167
European Commission, EU Closes Accession Negotiations with Croatia (Jun. 30, 2011).
168
European Commission, EU Closes Accession Negotiations with Croatia (Jun. 30, 2011).
169
European Commission, Croatia 2011 Progress Report, 9 (2011).
170
See CROATIAN CONST., ch. 8 (1990), available at http://www.sabor.hr/Default.aspx?art=2405.
171
172
See CROATIAN CONST., ch. I (1990).
173
See Constitutional Act Amending the Constitutional National Minority Rights Act (Croatia, 2010), available at
http://www.sabor.hr/Default.aspx?art=2448. See also Constitutional Law on the Rights of National Minorities
(Croatia, 2002), available at http://www.vsrh.hr/CustomPages/Static/HRV/Files/Legislation__Constitutional-Law-
on-the-Rights-NM.pdf.
23
Croatia also implemented a judicial reform package that included a number
of constitutional amendments pertaining to the independence of the judiciary. For
instance, the amendments removed the probationary 5-year initial term period for
judges and the Deputy Prosecutors General.
174
Instead, the language was changed
to provide for life tenure at the outset of their appointment.
175
The revised
language also affirmed the independence of the National Judiciary Council and its
authority to autonomously decide on the appointment, dismissal, and disciplinary
accountability of judges, removing any requirement to first consult the Parliament
before taking such action.
176
Similarly, the revised Constitution removed any
provision granting the Parliament authority to appoint the Public Prosecutors
Council, the independent body responsible for keeping the Public Prosecutors
accountable.
177
The 2010 amendments also inserted Article 54 into the
Constitution, establishing a State Audit Office as the supreme audit institution in
the state.
178

Other provisions relating to EU integration were also added to the
Constitution, including the rights of EU citizens, the rights of Croatian citizens in
the EU, the primacy of EU law, and the extradition procedures, to take effect only
upon Croatias accession on July 1, 2013.
179
Article 9(2) was included to provide
for an exception to the rule forbidding the extradition of Croatian citizens in
accordance with the acquis. Additionally, an entire chapter on the EU was
added.
180
The chapter sets forth the legal grounds for Croatias membership into
the EU, the states participation in EU institutions, the role of Community law in
domestic jurisprudence, and the rights of Croat citizens as citizens of the EU.
181

These rights include freedom of movement in Croatia, and active and passive
voting rights in any European parliamentary elections or local elections of Member
States in accordance with that Member States law.
182

Economic Criteria
In its 2011 Progress Report for Croatia, the European Commission declared
that Croatia had maintained a functioning market economy.
183
Despite rising

174
See CROATIAN CONST., art. 123, 125 (1990). See also CROATIAN CONST. (1990) (2001 version), available at
http://www.unhcr.org/refworld/pdfid/3ae6b551c.pdf.
175
See CROATIAN CONST., art. 123, 125 (1990). See also CROATIAN CONST. (1990) (2001 version).
176
See CROATIAN CONST., art. 124 (1990). See also CROATIAN CONST., art. 123 (1990) (2001 version).
177
See CROATIAN CONST., art. 125 (1990). See also CROATIAN CONST., art 124 (1990) (2001 version).
178
179
180
CROATIAN CONST., ch. VIII (1990).
181
CROATIAN CONST., art. 133(4),144-146 (1990).
182
183
24
unemployment and the increase in the external debt, prudent measures by
monetary authorities contained the fiscal deficit to support market institutions.
184

Moreover, the Commission found that Croatia had an open economy and trade
policies in line with EU policy.
185
As mentioned earlier, Croatia established the
authority and independence of the State Audit Office to ensure good governance
over all political and financial matters within the government.
186
Moreover,
Croatia made substantial progress in aligning its monetary policy with the acquis
by amending the Constitution to ensure the full independence of the Central
Bank.
187
The original constitutional provision provided that the Bank would be
responsible to the Croatian Parliament.
188
This provision was revised to provide
that the Bank would only report on its work to the Croatian Parliament.
189

Moreover, the revised provision established the authority of the Governor of the
Croatian National Bank to manage and operate the Bank.
190
The government also
later adopted lower-level measures incorporating the Croatian National Bank into
the European System of Central Banks to participate in the operation of all
European Central Bank institutions.
191

As a result of its progress within the political and economic criteria, Croatia
was commended for its alignment of political and economic policy with the
acquis.
192
In particular, the Commission noted Croatias recent passage of
legislation relating to migration, immigration, and asylum policies as consistent
with the Communitys union objectives.
193
Moreover, alignment with the acquis is
mentioned throughout the amended Constitution, particularly with regard to the
provisions relating to EU integration.
194
With regard to the other acquis chapters,
such as the free movement of capital and people, economic and monetary policy,

184
185
186
CROATIAN CONST., art. 54 (1990). See also European Commission, Croatia 2010 Progress Report, 64 (2010),
available at http://ec.europa.eu/enlargement/pdf/key_documents/2010/package/hr_rapport_2010_en.pdf.
187
188
CROATIAN CONST., art. 53 (1990) (2001 version).
189
190
191
Croatian National Bank, the Republic of Croatia and the EU (2012), available at
http://www.hnb.hr/medjunarodna_suradnja/emedjunarodna_suradnja.htm.
192
European Commission, Communication from the Commission to the European Parliament and the Council, 10
(Apr. 24, 2012).
193
(Apr. 24, 2012).
194
(Apr. 24, 2012).
25
and foreign security, alignment with EU law is almost complete.
195
Though
some outstanding issues remain, Croatia appears on track for EU membership
having reached a considerable degree of alignment with the acquis.
196

Serbia

In 2003, the EU identified Serbia as a potential candidate for EU
membership during the Thessaloniki European Council summit. In 2008, the
European Council adopted a European Partnership for Serbia, setting out priorities
for the state's membership application.
197
In 2009, Serbia formally applied for
membership to the EU.
198
Recently, in March 2012, the EU granted Serbia EU
candidate status.
199

Political Criteria
Serbia adopted a new Constitution in 2006 in an effort to distance itself from
the 1990 Constitution that had been associated with the presidency of Slobodan
Milosevic.
200
Although similarly drafted as its predecessor, the 2006 Constitution
passed via referendum as a means to preserve the province of Kosovo and
Metohija permanently within the sovereign state of Serbia. At the time, the United
Nations was discussing the future of Kosovo, and Serbia moved quickly to name
the province of Kosovo and Metohija an integral part of the territory of Serbia,
[with] the status of substantial autonomy within he sovereign state of Serbia.
201

Other changes to the Constitution included the elimination of social property and
reference to the Federal Republic of Yugoslavia since Montenegro had declared
independence in early 2006.
202

195
(Apr. 24, 2012).
196
(Apr. 24, 2012).
197
European Commission, Serbia (2011), available at http://ec.europa.eu/enlargement/countries/detailed-country-
information/serbia/index_en.htm.
198
European Commission, Serbia (2011).
199
European Commission, Serbia (2011).
200
RadioFree Europe/Radio Liberty, Timeline: the Political Career of Slobodan Milosevic (Mar. 13, 2006),
available at http://www.rferl.org/content/article/1066641.html.
201
SERBIA CONST., Preamble (2006), available at
http://www.srbija.gov.rs/cinjenice_o_srbiji/ustav.php?change_lang=en.
202
Nicholas Wood, Montenegrins Elect to End Union with Serbia, NEW YORK TIMES (May 22, 2006), available at
http://www.nytimes.com/2006/05/22/world/europe/22cnd-monte.html.
26
As a fairly new constitution, and one that had received comments from the
Venice Commission prior to its adoption,
203
the European Commission
commended the Constitution as largely in line with European standards.
204

Implementing the Constitution, however, remains a key priority and Serbia has
been slow in adopting the necessary laws and mechanisms required by the
Constitution.
205
For instance, Article 110 of the Constitution provides that [t]he
Law on the National Parliament shall be enacted,
206
but the Serbian Parliament
only enacted the relevant law in February 2010.
207
The law established
parliamentary budgetary autonomy through a separate budget as opposed to the
previous practice of government-decided allocations.
208
Moreover, Article 185 of
the Constitution provides for the adoption of the Statute of the Autonomous
Province of Vojvodina,
209
which will regulate the competencies of the province.
However, the Serbian Parliament has yet to adopt such a law.
210

Despite its high level of compliance with European standards, some
constitutional provisions remain problematic; in particular, the level of control by
political parties over parliamentary mandates and the Parliaments role in the
appointment and dismissal of the judiciary.
211
Article 102 provides that a deputy
shall be free to irrevocably put his/her term of office at disposal to the political
party that elected him or her.
212
Such authority grants political parties tremendous
influence over parliamentary mandates. In addition, the National Assembly has
constitutional authority to appoint and dismiss five justices of the Constitutional
Court,
213
appoint the President of the Supreme Court of Cassation and lower court
judges,
214
as well as appoint the Civic Defender
215
and Republic Public
Prosecutor.
216
If the Commission finds that these provisions compromise the
independence of the judiciary, Serbia may have to adopt constitutional
amendments or lower-level legislation to resolve these areas of conflict.

203
Venice Commission, Opinion on the Constitution of Serbia (Mar. 17-18, 2007), available at
http://www.venice.coe.int/docs/2007/CDL-AD(2007)004-e.pdf.
204
European Commission, Serbia 2012 Progress Report, 6 (2012), available at
http://ec.europa.eu/enlargement/pdf/key_documents/2012/package/sr_rapport_2012_en.pdf.
205
European Commission, Serbia 2010 Progress Report, 6 (2010), available at
http://ec.europa.eu/enlargement/pdf/key_documents/2010/package/sr_rapport_2010_en.pdf.
206
SERBIAN CONST., art. 110 (2006).
207
European Commission, Serbia 2010 Progress Report, 6 (2010).
208
209
210
211
212
213
214
215
216
27

Economic Criteria
The European Commissions 2012 Progress Report did not mention any
necessary constitutional reforms with regard to Serbia meeting the EUs economic
criteria.
217
Although Article 95 of the Constitution establishes the National Bank
of Serbia as an independent bank,
218
its accompanying provisions subject the
Bank to potential political influence. The Bank is subject to supervision by the
National Assembly and managed by the Governor elected by the National
Assembly.
219
These provisions closely mirror the problematic provisions in the
Croatian Constitution regarding the Croatian Central Bank, which the Commission
determined granted excessive parliamentary authority and, therefore, undermined
the independence of the Bank.
220
On the other hand, constitutional reform may be
unnecessary as the Constitution provides for the enactment of the Law on the
National Bank of Serbia.
221
Like Slovenia, Serbia may only need to reform lower-
level legislation to make sure the Bank is free from political influence.

As mentioned above, the Commission commended the Serbian Constitution
as in line with European standards. Serbia, however, still needs to develop and
strengthen administrative institutions and policies to meet its obligations under the
acquis. For instance, in the area of consumer protection and health, the
Commission urged the government to strengthen efforts implementing the existing
legislative framework and to foster institutional cooperation between consumer
protection organizations and public health programs.
222
Similarly, in the area of
education and culture, while Serbia was commended for reforming the education
system to be more socially inclusive of ethnic minorities, implementation of such
reforms has been slow.
223

Conclusion

The Treaty of the European Union (TEU) provides that any European State
which respects the principles set out in Article 6(1) [of liberty, democracy, respect
for human rights and fundamental freedoms, and the rule of law] may apply to

217
218
219
220
See CROATIAN CONST., art. 53 (1990); see also CROATIAN CONST., art 53 (1990) (2001 version).
221
222
223
28
become a member of the Union.
224
The Copenhagen Criteria provides uniform
standards by which states may become members. Meeting these criteria typically
requires a number of institutional changes, including constitutional reform. The
EU reviews the applications of candidate states on a case-by-case basis, assessing
both the constitutional and administrative framework to support the state in
meeting its Community obligations. Candidate states generally adopt
constitutional amendments that allow the state to delegate sovereignty to the
European Union, give primacy to European Community Law, extend voting rights
to non-citizens, and reaffirm the independence of the judiciary.

224
Consolidated Version of the Treaty of the European Union arts. 6(1), 49 (2003).

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