34. Ten Central and Eastern European (CEE) States are currently part of the EU's pre-accession process: Bulgaria, the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Romania, Slovakia and Slovenia. Five of them (the Czech Republic, Estonia, Hungary, Poland and Slovenia) are currently engaged in accession negotiations. Cyprus is also engaged in negotiations, while Malta has recently reactivated its membership bid. Turkey submitted its application for membership in 1987, but has not yet been judged ready to begin negotiations. The map at Appendix 4 shows the current position.

35. After the collapse of the communist régimes which began with the fall of the Berlin Wall in 1989, the European Community was initially reluctant to make any firm offer of membership to the new democracies. Instead, they were offered Association ("Europe") Agreements, providing for the creation of a free trade area for industrial goods and other measures intended to integrate their economies with those of western Europe, together with provisions for political dialogue.

36. The next step was taken at the June 1993 Copenhagen European Council, which agreed[12] that

"the associated countries in Central and Eastern Europe that so desire shall become members of the European Union. Accession will take place as soon as an associated country is able to assume the obligations of membership by satisfying the economic and political conditions required".

37. The only conditions for membership specified in the Treaty[13] are a State's European identity, democratic status and respect for human rights. The Copenhagen Council spelt out in more detail the conditions which would be applied in judging whether an applicant was ready for membership:

"Membership requires that the candidate country has achieved stability of institutions guaranteeing democracy, the rule of law, human rights and respect for and protection of minorities, the existence of a functioning market economy as well as the capacity to cope with competitive pressure and market forces within the Union. Membership presupposes the candidate's ability to take on the obligations of membership including adherence to the aims of political, economic and monetary union" [14].

Among other things, these criteria require applicants to adopt and apply the acquis[15]; it is increasingly emphasised that this must entail not only the formal transposition of European legislation into national law, but also the administrative and judicial capacity to ensure that it is properly implemented and enforced.

38. In addition, the Copenhagen Council pointed out that action was necessary from the existing Member States:

"The Union's capacity to absorb new members, while maintaining the momentum of European integration, is also an important consideration in the general interest of both the Union and candidate countries"[16].

39. The successful enlargement of the EU to nearly double its present membership would require policy reform, adequate funding and substantial institutional reform. The timing of enlargement would thus depend on the pace of reform by the Union as well by the applicants.

40. The documents published by the Commission in July 1997, collectively known as Agenda 2000[17], suggested a policy framework for enlargement. They included proposals for reform of the CAP and structural funds, the Commission's assessment of the candidate countries' applications by reference to the Copenhagen criteria[18], and a proposed strategy for handling the process of enlargement. The Commission concluded that:

"Hungary, Poland, Estonia, the Czech Republic and Slovenia could be in a position to satisfy all the conditions of membership in the medium term if they maintain and strongly sustain their efforts of preparation".

It therefore recommended that the Council should open bilateral negotiations with these five Central and Eastern European States (together with Cyprus), while stressing that although every applicant would be judged by the same criteria negotiations with all the States would not necessarily be concluded simultaneously.

41. Some Member States—and the European Parliament—strongly resisted the proposal to differentiate between the applicant States at this early stage, creating two groups, or "waves", for enlargement. They pressed instead for adoption of the so-called "regatta principle", whereby negotiation with all the applicants would have started at the same time, although when each would cross the finishing line would still have depended on its own pace of reform. Nevertheless, the December 1997 Luxembourg Council agreed to differentiate between the two waves.

42. The Council stressed, however, that the accession process was being launched with ten Central and Eastern European applicant States and Cyprus, which were all "destined to join the European Union on the basis of the same criteria and … participating in the accession process on an equal footing"[19]. It followed that in principle a State initially in the second wave could catch up or even overtake one or more of the first wave States.

43. To emphasise that the composition of the two groups of States was not permanently fixed, the Commission would make annual assessments of the progress made by all applicants towards meeting the Copenhagen criteria. Moreover, the Luxembourg Council also decided that an Accession Partnership should be agreed with each of the CEE applicants to enable them "to align themselves as far as possible on the Union acquis prior to accession". This would

"cover in detail for each applicant the priorities to be observed in adopting the Union acquis and also the financial resources available for that purpose, including the PHARE programme. In that context financial assistance would be linked to the applicants' progress and, more specifically, to compliance with the programme for adoption of the acquis"[20].

In these Accession Partnership agreements, the applicant States were to make "precise commitments … relating in particular to democracy, macro-economic stabilisation, and nuclear safety as well as a national programme for the adoption of the Community acquis within a precise timetable"[21]. In return, the EU would bring together in a single framework all the various sources of financial aid available to support their pre-accession programmes, and the funding available was to be increased substantially[22]. The financial assistance was to be explicitly conditional on the candidate countries making satisfactory progress in meeting the Copenhagen criteria and respecting their obligations under the Europe Agreements.

44. Bilateral negotiations on the terms and conditions of membership began on 31 March 1998 with the five first wave CEE States and Cyprus. The first stage, completed by July 1998, was the screening of the acquis[23], involving the consideration of the position in relation to each of the 31 "chapters" or areas of EU legislation[24]. A key goal of the pre-accession strategy is to ensure that the applicants take on as much of the acquis as possible before their accession. The objective of this screening is to identify where the applicants' national laws will have to be changed in order to achieve this, or where there may be a need for negotiation on transitional arrangements. Neither permanent opt-outs nor any measures which would have the effect of creating second-class members are to be considered, and any essential transition periods are to apply for as short a time and to as few policy areas as possible.

45. Substantive negotiations with the first wave States on the first seven chapters began on 10 November 1998. By the end of September 1999, negotiations had begun on 15 of the 31 chapters; the current Finnish Presidency was to open a further eight chapters by the end of 1999, and the Portuguese Presidency was to open seven more during the first half of 2000[25]. So far seven chapters have been provisionally closed with all six applicants (statistics; telecommunications; industrial policy; consumer protection; research; small and medium sized enterprises; and education and training). In addition, the fisheries chapter has been provisionally closed with Hungary, the Czech Republic and Slovenia, and the culture and audio-visual, external relations and customs union chapters have been provisionally closed with Cyprus. However, it is important to note that even these chapters are only provisionally closed; the Commission intends to re-open them in 2000 to check that the applicants really are carrying out their commitments. Moreover, since the acquis is constantly evolving, chapters may have to be renegotiated, especially if the enlargement process proves to be unduly protracted.

46. The Commission's first annual progress reports were published in November 1998[26]. The reports were generally quite positive about the progress made by all the applicants in preparing for accession. However, they did conclude that two of the first wave group, the Czech Republic and Slovenia, were lagging behind in the adoption of the acquis, and they identified a number of problems in the other first wave States: in particular, they found an urgent need to improve administrative and institutional capacity to implement the acquis. In the second wave group, Latvia and to a lesser extent Lithuania were found to have made good progress in their economic reforms, and Slovakia, after the election of a new government in September 1998, was said to have made significant moves in the direction of consolidating democracy. Despite this, neither the December 1998 Vienna Council nor the June 1999 Cologne Council decided to invite any further States to open accession negotiations, although they did signal that such a decision might be taken at the December 1999 Helsinki Council.

47. The Luxembourg enlargement strategy was based on the principle that each applicant would proceed at its own pace. But it did not follow that the date of an applicant's accession to the EU would be entirely dependent on its own progress in meeting the Copenhagen criteria. As the Copenhagen Council had recognised, the timing of accession would depend not only on the readiness of applicant States to join, but also on the readiness of the EU to accept them. Preparatory action would be needed within the existing EU to modify policies, to ensure that sufficient funds were available and to make any necessary institutional reforms.

48. On policy and funding, the Commission's Agenda 2000 proposals recognised that unless substantial reforms were made both to the Common Agricultural Policy and to the structural funds there was a risk that the accession of so many poor, predominantly agricultural, States would impose an impossible burden on the Union's budget. The reforms proposed by the Commission were significantly watered down at the March 1999 Berlin Council[27], but after protracted negotiations a financial package was finally agreed. The financial perspective adopted for the period 2000-2006 was claimed to be sufficient to allow a first wave of enlargement to go ahead from 2002. The money allocated to cover enlargement was ring-fenced, so it could not be used for any other purpose.

49. Progress on institutional reform to ensure that an enlarged Union would continue to function reasonably effectively has been even slower. Such reform was one of the key objectives of the 1996 Inter-Governmental Conference in Amsterdam, but the Member States put off decisions on three crucial issues: the size and composition of the Commission, the weighting of the votes in the Council and the possible extension of qualified majority voting in the Council. Instead, they adopted a protocol committing themselves to resolve those issues before the next enlargement. The so-called "institutional protocol" annexed to the TEU and EC Treaties[28] provides that the EU will move to having only one Commissioner per Member State before the first accessions, as long as there has been agreement on a revision of the voting system in the Council to give greater recognition to the population size of the larger Member States. In effect, if the next enlargement involves five or fewer countries, the large Member States have agreed to give up their second Commissioner, provided that they receive adequate 'compensation' through a greater influence in the weighted vote system. The protocol also provides for a comprehensive institutional review one year before the number of EU Member States exceeds twenty. A declaration by Belgium, France and Italy on the institutional protocol ("noted" by the IGC) stated that the possible extension of qualified majority voting should be considered at the same time. At the June 1999 Cologne European Council, it was decided that a new IGC should be convened by the December 1999 Helsinki Council to consider those three issues.

13   Articles 6(1) and 49 TEU. Back

14   These have since become known as the "Copenhagen criteria", and we shall so refer to them. Back

15   The whole range of principles, policies, laws, practices, obligations and objectives that have been agreed or that have developed within the European Union, including most notably the Treaties, the existing subordinate legislation (for example EC regulations and directives), and the judgments of the European Court of Justice. Back

16   Presidency Conclusions, Copenhagen European Council, op cit. Back

17   9984/97. Back

18   Known as the "Opinions" or "avis". Back

19   Presidency Conclusions, Luxembourg European Council, December 1997, SN 400/97. Back

20   Ibid.  Back

21   Agenda 2000 , op cit, p 63.  Back

22   It will be over 3 billion euro per year from 2000 (12053/99: Composite Paper, p 4). Back

23   A similar process of screening was also launched with the other five CEE applicants to help speed up their preparations for membership; by September 1999 this process was "almost complete" (p 25). Back

24   For the purpose of negotiations with applicants, the acquis has been divided into "chapters" dealing with different topics, to be "opened" successively in the course of negotiations: see table at Annex A to the written evidence from the Foreign and Commonwealth Office, p 28. Back

25   Composite Paper, p 8; this would leave the final chapter, which "can only be considered after the EU's internal reform has taken place". But see also paragraph 71.  Back

26   14420/98 with ADD 1-12: Composite Paper summarising the analysis in each of the progress reports submitted by the Commission with Commission reports on progress towards accession by Hungary, Poland, Romania, Slovakia, Latvia, Estonia, Lithuania, Bulgaria, Czech Republic, Slovenia, Cyprus and Turkey. Back

27   See paragraphs 87-91 below. Back

28   Protocol on the institutions with the prospect of enlargement of the European Union. Back