Opening and Negotiation Process by Chapters

Following the screening performance, the intergovernmental conference, on a proposal of the European Commission, decides which chapters will be opened first and for which of them the appropriate benchmarks will be set up.

The Methodology of establishing benchmarks prior to the opening of negotiations was first established in the negotiations with Croatia and Turkey, as an aspect of strengthening the EU conditional policy. According to the Union Enlargement Strategy (2006), the benchmarks are “a new tool introduced as a result of lessons learnt from the fifth enlargement. Their purpose is to further improve the quality of the negotiations, by providing incentives for the candidate countries to undertake necessary reforms at an early stage. Benchmarks are measurable and related to key elements of certain Acquis chapter.

Benchmark for closing Chapter refers to legislative measures, administrative and judicial authorities as well as to acquis implementation data. The benchmarks for the Chapters covering the areas of economy refer to the functional market economy criterion. Provided that the candidate country discontinues meeting the benchmark for opening Chapter relating to already negotiating Chapter, the Commission may propose suspension of that Chapter negotiation. In as the case the candidate country discontinues meeting the benchmarks for an already preliminary closed Chapter, the Commission may propose reopening of that Chapter negotiations. Updating of benchmarks is possible in order to incorporate new acquis elements.

Following the decision on opening negotiation Chapter, the country prepares negotiation position on appropriate Chapter and submitted it to Brussels.

The Commission analyses the negotiation position and prepares draft negotiation position communicating it to the Member States in Brussels. Subsequently the Member States decide on EU common position, and deliver it to the candidate country; thus negotiations may commence.

Such establishment and methodology of negotiation indicate that the candidate country in fact negotiates with all Member States, whereas the European Commission acts as mediator representing the candidate country within the meaning of acquis and loyalty of the EU institutions.

Negotiation positions are official documents recorded and kept in the IGC Secretariat. They indicate the approximation of the national with the EU legislation in given Chapter at the time of the negotiations opening and these positions contain the obligation for full harmonisation up to the accession date. In the case where full approximation in a given Chapter is not possible to the accession date, transitional periods or derogations are required. Transitional periods actually mean permission given to the candidate country to apply specific EU act in its territory for a certain number of years following its accession. They are usually granted in particular sectors, for a limited number and defined period of time. Approval is not usual, for example, for the Internal Market.

Derogations represent permanent or temporary approval given by the EU to a Member State or candidate country not to apply certain Community act or to apply it partially. Permanent derogations are in limited number in the history of the European Union and they do not apply at all, therefore this option is practically closed for further enlargements. Temporary derogations are possible, but in practice this possibility is limited. Interim derogations in their outcome are identical to the transitional periods.

The negotiations for the given Chapter terminate temporarily by drafting Member States final common position. The agreements reached on given Chapters may not be regarded as final unless overall agreement is achieved on all Chapters i.e. the principle ‘Nothing is closed unless all is closed’ is valid. It is also possible to open already closed Chapters.

There is a possibility for the Commission to recommend (on its initiative or at the request of 1/3 of the Member States) suspension of the negotiations provided that the established obligations in the negotiation process are not fulfilled (for the Republic of Macedonia that is the European Partnership and the SAA).

Upon closing the negotiations the Accession Agreement is signed, which is subject to the consent by the European Parliament and then it is submitted to the Member States and to the candidate country for ratification, according to their constitutional provisions.

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