Constitutional Implications of Accession to the European Union, Ankara, 2001
Challenges Subsequent to Accession
From a quantitative perspective, the foregoing would indicate that it is during the phase prior to accession in which the greatest number of changes in the legal systems of the candidate countries will be required. The phase of formal accession will likewise require constitutional changes of decisive importance in the system of legal sources and in the very definition of sovereignty. But the candidate countries will also face significant challenges once they have formally acceded to the Union, when putting the requirements for accession into practice. And these challenges may likewise have constitutional relevance.
An initial problem, which can be observed in the experiences of countries that previously acceded to the Union, concerns the assimilation of the Community acquis, which, upon accession, becomes directly applicable law. Certainly, we must assume that in the preparatory stage prior to accession there will have been an approximation of national law and the acquis, so that in general this assimilation will have already been achieved at the moment of accession. But in many cases, after accession it will be necessary to transpose not only those sectors of the acquis not yet incorporated into the internal legal order, but also the subsequent and continually-increasing Community norms, especially Community directives which must be made enforceable by national legislation. This will require a fair amount of law-making activity on the part of national authorities.
The manner in which these rules are implemented may present some difficulty. If this task is attributed to the legislature, the ensuing workload could occupy a good amount of the sessions of legislative chambers for months, or perhaps even for years. For that reason, the trend in some Member countries has been to have the executive branch of government carry out the greater part of the task of implementing Community rules, introducing techniques enabling collaboration between the legislative and executive branches. Thus, through delegating legislation passed in Parliament, the executive may be authorised to adapt internal law to the provisions of the acquis within a given period of time.
A second post-accession problem concerns the participation of the different branches of government in the formation of European Union policy. The executive has traditionally been charged with directing international policy. However, the importance of the decisions adopted by Union institutions, which exercise powers previously reserved for the institutions of the Member States, and in order to respect democratic principles, it is advisable to have the legislature participate with the executive in the "ascendent" formulation of European policy, defining national proposals to be presented in the corresponding institutions of the Union. This requires constitutional definitions of these new tasks for the legislature, which differ from their traditional functions. Many examples can be found in the constitutions of the Member States.
A third and rather complex question concerns the role of national courts in applying secondary Community legislation. The relevant factor in that regard is that in practice national judges become Community judges, charged with ensuring the correct application of European rules and even with the protection of the provisions contained in the founding Treaties. In effect, the institution which is ultimately responsible for interpreting primary Community law and reviewing the conformity of secondary legislation with the basic rules of the Community is the Court of Justice of the European Communities. But this task is only possible if the Court can count on the collaboration of national judges, fundamentally by applying the procedure provided in Article 234 of the Treaty Establishing the European Community which enables national judges to petition the European Court for rulings concerning the interpretation of the Treaties or the validity of actions taken by the institutions of the Community. This requires providing the adequate means in national procedural law to enable national judges to refer matters to the European Court for preliminary rulings. Thus, national judges do, in effect, act as European judges in cases in which a preliminary ruling from the European Court of Justice is warranted.
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"At that time it appeared that Turkey was not, as such, included in this “inclusive” accession process. The Luxembourg European Council held that it “confirms Turkey’s eligibility for accession to the European Union. Turkey will be judged on the basis of the same criteria as the other applicant states. While the political and economic conditions allowing accession negotiations to be envisaged are not satisfied, the European Council considers that it is nevertheless important for a strategy to be drawn up to prepare Turkey for accession by bringing it closer to the European Union in every field”.99 The most innovative part was that Turkey, together with the other candidate countries, was invited to become a member of the so-called European Conference. It was decided that the European Conference would “bring together the Member States of the European Union and the European States aspiring to accede to it and sharing its values and internal and external objectives”, and was meant to be “a multilateral forum for political consultation, intended to address questions of general concern to the participants and to broaden and deepen their co-operation on foreign and security policy, justice and home affairs, and other areas of common concern, particularly economic matters and regional co-operation”. The first European Conference was held in London on 12 March 1998 but Turkey declined to attend. "
99 It was stated that this European strategy for Turkey “consists in: development of the possibilities afforded by the Ankara Agreement; intensification of the Customs Union; implementation of financial cooperation; approximation of laws and adoption of the Union acquis; participation, to be decided case by case, in certain programmes and in certain agencies...”.
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