Tobias Auberger and Tanja Hitzel-Cassagnes - Mzes

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common feature: They conceive the Enlargement-process as a rather one-sided process of
transformation characterised as an adjustment on behalf of the new Member States. This
view relies on the notion that transformation is a pre-defined path, that it is unequivocally
pre-figured and hence procedurally and substantially closed. The problem is that this view
neglects, that, firstly, transformative processes will also affect the status of the (old) Member
States. Therefore, enlargement implies a mutual adjustment rather than merely a onesided
one. Secondly, the status quo and modus operandi of the European Union is affected
too – so it is much more plausible to regard Enlargement as a transformative process within
the European Union itself. Both objections lead to the conclusion, that openness and reversibility
are so far neglected – though, to our mind, systematically they are procedural features
of the Enlargement process. But let us have a quick look at the problems associated
with the incorporation of the “aquis communautaire” and the constitutionalisation process
of the European Union.
a.) Regarding the above mentioned worries about successful implementation of the
“acquis communautaire”, the picture is fall less clear than stated by the critics. The
development of the European Union is characterised by continuous conflicts about
the substantial content and scope of law that can be qualified as being part of the
“acquis”. Thus, the “acquis” itself has always been a contested concept, and its acknowledgement
by the national legal orders in particular hesitant and disputed.
Apart from that, there have always been conflicts about the material content and
meaning of the “acquis” as a body of law. The reasons for this are of various kinds:
Firstly, the “acquis communautaire” is fragmented into quasi-constitutional principles
of law (supremacy and direct effect on the one hand, basic and individual
rights, proportionality on the other), procedural and administrative statutes, and material
codes in different areas (from purely economic/competition/market-law to social
and political rights like citizenship). Secondly, the legal instruments of the “acquis”
are differentiated according to range and binding effect depending on the kind
of legal source (treaty-law, regulation, directives, and precedents). Thirdly, and that
might be the most crucial aspect, the structure of the “aquis” highly depends on a
broader definition of the European Union as a functional, social or political community
– these background orientations are not least determining the concept of