Tobias Auberger and Tanja Hitzel-Cassagnes - Mzes

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8 starting point should provide us with a kind of heuristic device in order to identify the status of the problems and to examine their normative relevance in particular. The introductory remarks about the difficulties associated with the incorporation of the “acquis” and the integration of the new Member States in the European constitutional order demonstrates a great variety and disparity of the kind of defects identified. They ranged from mere practical considerations to fundamental doubts about the structural preconditions for successful integration. Although we cannot systematically discuss all of these aspects we would like to elaborate on a few, distinct and exemplary, issues: (1.) differences and difficulties of implementation in the field of mainly individual rights, (2.) cultural fragmentation and incommensurabilities, (3.) asymmetries of voice, and finally, (4.) Differences of concepts of law. By discussing these issues we will sort the problems along the lines sketched out above, i.e., we will evaluate their status in terms of structural impact on the one hand, and in terms of effectuating the normative quality of Constitutionalisation on the other hand. Accordingly, the idea of mutual learning-processes serves, as mentioned above, as a heuristic framework esp. to assess integration in the enlarged Union. In this way we hope to specify some kind of enabling conditions of transformation. 3. Enlargement and reflexive integration 3.1. Difficulties of implementation The first sort of problems relates to a diagnosis of fundamental differences within the enlarged Union regarding all those individual and group rights considered to be crucial to any broader concept of democratic participation, i.e., minority rights, non-discrimination rights and to a certain extent social rights (see Darke 2005, Hartkamp 2004, O’Hagan 2004, Reich 2005, Schmidt 2006, Sloat 2004, Wiener/Schwellnus 2004). The implementation of the “acquis communautaire”, i.e. the transposition of its distinct and substantial elements into national law has been at the core of the adjustments demanded of the candidate countries. Regarding the set of concrete requirements spelled out by the Copenhagen criteria, most of them can be challenged in normative terms depending on the peculiarities of different approaches to individual and human rights as well as on the particular conceptions of democracy and the rule of law principle. Yet, the most contested part was the required implementation of minority rights. On the one hand, the protection of minorities played an im-
9 portant role in the European foreign policy after 1989 and especially in its accession strategies while, on the other hand, the candidate states differed widely with respect to an active minority policy, to the recognition of internal minorities, and to the granting of minority rights. The practices of implementing minority and non-discrimination rights by the candidate states during the accession negotiations showed that the actual influence of EU conditionality depended on internal conditions especially in the Eastern European countries and that national legislation differed substantially (see Wiener/Schwellnus 2004). Although the factual existence of internal and external minorities and the constellations of internal actors played a decisive role, differences regarding the incorporation of minority rights might also have stemmed from the lack of a single and coherent minority policy of the 'old' Union towards the candidate countries. During the accession negotiations the European Union accepted and promoted quite divergent conceptions of minority protection and accordingly, different legal remedies and procedures. As the studies of Wiener and Schwellnus reveal, at the time, the Union's minority policy referred to conceptions borrowing from doctrines of the United Nations on the one hand, the OSCE and Council of Europe on the other hand – which are conflicting insofar as the UN's definition of minorities is rather broad and comprehensive whereas the OSCE's conception of minority rights restricts its scope to citizens, i.e., excluding emerging groups of unsettled and precarious (legal) status (see Wiener/Schwellnus 2004: 33). This very sketchy reference might suffice to point out that within the European Union, the status of minority protection and the concepts of minority rights have been heterogeneous as well as internally contested and ambivalent (esp. if one takes Wiener’s remarks seriously, pointing at a kind of “hypocrisy” emphasising minority rights with regard to the new member states but neglecting them in an “internal” perspective). A similar picture can be drawn by examining the incorporation of the acquis in various fields like equality, non-discrimination and social rights. The European regulation of social and working standards, of non-discrimination rights and of measures to promote gender equality has been formally implemented in the new member states at quite an early stage. Again, rather similar to the old member states the new member states vary with respect to the conceptualization of social rights, to concrete measures and institutions as well as to the overall scope of accomplishment (see Sloat 2004). So, in a way, the mere observation of
Page 1 and 2: Tobias Auberger and Tanja Hitzel-Ca
Page 3 and 4: 3 common feature: They conceive the
Page 5 and 6: 5 Even in reality, as certain studi
Page 7: 7 openness and reversibility. Thus,
Page 11 and 12: 11 Apart from the fact that these c
Page 13 and 14: 13 Weiss 2005, Dangerfield 2006, Ba
Page 15 and 16: 15 hierarchies and asymmetries are
Page 17 and 18: 17 2. By requiring national courts,
Page 19 and 20: 19 tional role and function but als
Page 21 and 22: 21 Biography (incomplete) Albi, Ann
Page 23 and 24: Kühn, Zdenek (2005) The Applicatio

Tobias Auberger and Tanja Hitzel-Cassagnes - Mzes

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