The ENP in the light of the new “neighbourhood clause” (Article 8 TEU). Research Papers in Law, 2/2011

This short contribution outlines the renewed constitutional framework in which the “European Neighbourhood Policy” (ENP) is to be integrated and further developed (1.) and briefly discusses its possible implications for the finalité of the neighbourhood relationship in general and of the ENP more specifically (2.). This constitutional perspective reveals three – already well-known – conceptual problems of the ENP (3.).

Bringing South Caucasus Closer to Europe: Achievements and Challenges in ENP Implantation. Natolin Research Paper 03/March 2011

While the initial Commission Communication on Wider Europe (March 2003) did not include Armenia, Georgia and Azerbaijan in the forthcoming policy for the EU’s new neighbourhood, the Southern Caucasus region has now gained considerable attention in the framework of the ENP and beyond, not least because of security considerations. The ENP undoubtedly represents a step forward in the EU’s policy towards Armenia, Azerbaijan and Georgia, yet its implementation highlights major differences between the three countries and important weaknesses in all three of them. The Eastern Partnership addresses some of these weaknesses and it also significantly strengthens the EU’s offer to South Caucasus countries, which is now fully in line with the perspectives proposed to the Western NIS. The paper highlights five main conclusions and recommendations: • Political, economic, social and diplomatic developments in the South Caucasus in the 2000's highlight both diverging trends and the persistence of tensions between the three countries. They also have different aspirations vis-à-vis the EU and different records in ENP implementation. The EU should therefore mainly rely upon an individual approach towards each country. • While bilateral relations should form the basis of the EU's approach, most of the challenges faced by Georgia, Armenia and Azerbaijan are not confined to national borders and require regional solutions. This applies primarily, but not exclusively, to the unresolved conflicts. The EU should promote targeted regional cooperation including, inter alia, confidence-building measures to address indirectly the protracted conflicts and measures supporting drivers of change, which play a critical role in the confidence-building process; • Under the ENP, especially since the opening of negotiations for association agreements and with the perspective of DCFTA, trade-related issues, market and regulatory reform have become prominent in the EU's relations with all three Caucasus countries. At the same time, the priorities identified when the ENP was launched, i.e. good governance and the rule of law, still correspond to major challenges in the South Caucasus. The EU should more clearly prioritise good governance and the rule of law as the basis of both the ENP and successful reforms; • In all partner countries (but even more so in the South Caucasus), ENP implementation has been adversely affected by poor administrative capacities and weak institutional coordination. The EU should increasingly focus on institutional reform/capacity building in its support to partner countries and ensure that the link between the ENP and domestic reform processes is strengthened; • In the South Caucasus the EU has recently concentrated on a few assistance tools such as budget support, Twinning and TAIEX. While these instruments undoubtedly bring an added value, they should be better combined with tools allowing for greater flexibility and targeting non-governmental actors, e.g. EIDHR/NSA.

Spotlight-Europe - March 2015: The EU neighbourhood in shambles. Some recommendations for a new European neighbourhood strategy

Executive Summary. An “arc of instability” stretching from the European Union’s (EU) eastern borders down to the Mediterranean basin has undermined its flagship European Neighbourhood Policy (ENP). This policy was designed to deliver prosperity, stability and democracy to countries surrounding the EU. It has manifestly failed and needs to be radically rethought. Starting with a tabula rasa, the EU should abandon the very concept of a heterogeneous “neighbourhood” in the face of glaring differences among the 16 countries affected, not least because some are uninterested in reform; others may even be failed states. EU member states are themselves pursuing divergent interests and goals. A fundamental review of the ENP should lead to more differentiated, targeted measures to promote “transformational change” within neighbouring states ready to accept it. The EU should offer revised incentives such as participation within the proposed “energy union” or freer trade designed to aid local economic development. It should embrace a wider range of actors, including civil society, promote entrepreneurship and help reform countries’ police and military forces. The review should reassert common EU institutions in negotiating and working with neighbours and give them a central role in preventing and resolving conflicts as well as promoting democratic reform and economic stability. This revised ENP should help underpin the EU’s efforts to forge a genuine Common Foreign and Security Policy.

Putin’s grand design to destroy the EU’s Eastern Partnership and replace it with a disastrous neighbourhood policy of his own. CEPS Commentary, 17 September 2013

This new Commentary by Michael Emerson and Hrant Kostanyan shows how the pressure exerted by President Putin on Armenia to withdraw from the Deep and Comprehensive Free Trade Agreement it had negotiated with the EU and to join the Belarus, Kazakhstan and Russia customs union is but the most recent in a long series of ongoing moves by Russia to destroy the Eastern Partnership. In their view, the message to be hammered home to those unsure of the economic arguments is that you do not have to have an exclusive customs union to enjoy deep integration for goods, services, people and capital, and of course even less for hard security relationships. High-quality free trade agreements are the logical instrument for those who want excellent relations with more than one big neighbour.

The Judicial Dimension of the European Neighbourhood Policy. EU Diplomacy Paper 08/2013, November 2013

In this paper, the expression “neighbourhood policy” of the European Union (EU) is understood in a broad way which includes the members of the European Free Trade Association (EFTA) contracting parties to the European Economic Area (EEA), the EFTA State Switzerland, candidate states, the countries of the European Neighbour-hood Policy (ENP), and Russia. The European Court of Justice (ECJ) is the centre of gravity in the judicial dimension of this policy. The innermost circle of integration after the EU itself comprises the EFTA States who are party to the European Economic Area. With the EFTA Court, they have their own common court. The existence of two courts – the ECJ and the EFTA Court – raises the question of homogeneity of the case law. The EEA homogeneity rules resemble the ones of the Lugano Convention. The EFTA Court is basically obliged to follow or take into account relevant ECJ case law. But even if the ECJ has gone first, there may be constellations where the EFTA Court comes to the conclusion that it must go its own way. Such constellations may be given if there is new scientific evidence, if the ECJ has left certain questions open, where there is relevant case law of the European Court of Human Rights or where, in light of the specific circumstances of the case, there is room for “creative homogeneity”. However, in the majority of its cases the EFTA Court is faced with novel legal questions. In such cases, the ECJ, its Advocates General and the Court of First Instance make reference to the EFTA Court’s case law. The question may be posed whether the EEA could serve as a model for other regional associations. For the ENP states, candidate States and Russia this is hard to imagine. Their courts will to varying degrees look to the ECJ when giving interpretation to the relevant agreements. The Swiss Government is – at least for the time being – unwilling to make a second attempt to join the EEA. The European Commission has therefore proposed to the Swiss to dock their sectoral agreements with the EU to the institutions of the EFTA pillar, the EFTA Surveillance Authority (ESA) and the EFTA Court. Switzerland would then negotiate the right to nominate a member of the ESA College and of the EFTA Court. The Swiss Government has, however, opted for another model. Swiss courts would continue to look to the ECJ, as they did in the past, and conflicts should also in the future be resolved by diplomatic means. But the ECJ would play a decisive role in dispute settlement. It would, upon unilateral request of one side, give an “authoritative” interpretation of EU law as incorporated into the relevant bilateral agreement. In a “Non-Paper” which was drafted by the chief negotiators, the interpretations of the ECJ are even characterised as binding. The decision-making power would, however, remain with the Joint Committees where Switzerland could say no. The Swiss Government assumes that after a negative decision by the ECJ it would be able to negotiate a compromise solution with the Commission without the ECJ being able to express itself on the outcome. The Government has therefore not tried to emphasise that the ECJ would not be a foreign court. Whether the ECJ would accept its intended role, is an open question. And if it would, the Swiss Government would have to explain to its voters that Switzerland retains the freedom to disregard such a binding decision and that for this reason the ECJ is not only no foreign court, but no adjudicating court at all.

Towards a fresh deal for Ukraine, the EU and Russia and their neighbourhood policies: 15 steps. CEPS Commentary, 29 May 2014

Following the convincing election of Petro Poroshenko as Ukraine’s new President, Michael Emerson puts forward 15 steps with a view to creating a fresh start for Ukraine, the EU and Russia and their neighbourhood policies.

European Neighbourhood Policy Package - Conclusions for the Eastern Partners. OSW Commentary No. 78, 2012-05-25

In 2011 the European Union began a process aimed at reforming its policy on the Eastern and Southern Neighbourhood. The change in circumstances in neighbouring countries following the Arab Spring, along with the lack of significant progress regarding Eastern Europe’s integration with the EU, formed the main driving force behind this process. The prime objective of the changes to the European Neighbourhood Policy (ENP) was the need to introduce new incentives for partner countries to modernise and integrate more closely with the EU Another aim was to increase the flexibility of EU instruments (by adapting them to the specific context of each partner state). One year later, on 15 May 2012, the European Commission and the EU High Representative for Foreign Affairs and Security Policy published the European Neighbourhood Policy Package which reported on the progress made in the implementation of the ENP over the preceding year and set out the aims and Action Plans for 20131. An analysis of the outcomes of changes made to the EU policy towards Eastern Europe and the South Caucasus suggests that the aim of the revision was aimed more at addressing the changing political landscape in the region rather than at the implementation of a substantial reform of the neighbourhood policy. The ENP is largely based on bureaucratic procedures (the negotiation of bilateral agreements, the implementation of support programmes). These have only a limited capacity to bring about lasting change in the region, as has been exemplified by the deterioration of democratic standards in a number of countries; this was highlighted in EU’s own reports. This problem is particularly clear in the case of Ukraine; until recently it was seen as the leader of European integration but is now raising much concern due to a deterioration in the state of democracy there. EU instruments have a limited influence on the situation in Eastern Partnership countries and the region’s significance on the EU’s agenda is falling (the priority is now given to counteracting the economic crisis, and prominence in the neighbourhood policy has been given to the Southern Mediterranean). In response to this EU policy on Eastern Europe will focus to a larger extent on technical and sectoral cooperation.

The New Silk Road: a versatile instrument in China’s policy. OSW Commentary No. 161, February 10 2015

Introduction. The Chinese leader Xi Jinping presented the concept of the New Silk Road – a collection of land and maritime routes – in autumn 2013. Initially, it envisaged the creation of a network of infrastructural connections, mainly transport corridors, between China and its most important economic partner – Europe. The concept grew in importance throughout 2014 to become the key instrument of China’s foreign policy, especially in the areas of public diplomacy and soft power. Towards the end of 2014, the Chinese government announced it would establish a Silk Road Fund worth US$40 billion. The New Silk Road idea is a flexible formula used by China in its dialogue with many other countries. Its inclusive nature helps contribute to diluting the negative impression caused by China’s rapid economic expansion and assertiveness in foreign policy, especially with regard to its neighbours. The process of implementing the New Silk Road concept will allow China to expand its influence within its neighbourhood: in Central and South-Eastern Asia. The New Silk Road will be an alternative point of reference to the US dominance and Russian integration projects in these regions. The concept will legitimise and facilitate the growth of China’s influence in the transit countries on the route to Western Europe, i.e. in the Middle East (Arab countries, Israel and Turkey, the Horn of Africa and Central Europe (the Balkans and the Visegrad Group countries). This concept is also essential for China’s domestic policy. It has become one of Xi Jinping’s main political projects. It will boost the development of China’s central and western provinces. The fact that the concept is open and not fully defined means that it will be a success regardless of the extent to which it will be implemented in practice. Its flexible nature allows China to continue investments already initiated bilaterally and to present them as components of the New Silk Road concept.

EU democratization policies in the Neighbourhood countries and Russia’s reaction as a destabilizing factor. A comparative case study of Georgia and Moldova. Bruges Political Research Papers 45/2015.

The EU democratization policies have not achieved the expected results in Eastern Partnership (EaP) countries. On the contrary, they have led to the outbreak of the most important crisis in Europe after the end of the cold war. A new vision of cooperation in the field of democracy is necessary in the East, as long as even Georgia and Moldova, countries considered to be the most advanced among the EaP states, have not registered essential progress in the democratization of their societies. Assuming that democratization, as part of EU’s neighbourhood policies, can be considered a threat to Russia and hence a ‘destabilizing factor’ for the EU partners, this thesis tried to understand what changes can be made to EU policies and to what extent cooperation between EU and Russia is possible in the process developing democratization policies in Georgia and Moldova. While arguing for the revitalization of the instruments used for the implementation of the democratization policies, this thesis finds that cooperation between the EU and Russia in the field of democracy is excluded as long as the two geo-political actors have different values and different views on the notion of democracy. The most likely cooperation that might occur between EU and Russia is the establishment of a Common Economic Space ‘from Lisbon to Vladivostok’. Even though such a scenario would have the potential to reduce confrontation between the two actors in the common neighbourhood, this cooperation would, however, have a negative impact on the on-going democratic reforms in Georgia and Moldova.