One way of exploring the limits of law and policy is by posing hypothetical questions. This week’s Weekly Constitutional, where a legal text or other formal document is used as the basis of a wider discussion of law and policy, is about what would happen if Canada made an application to join the European Union. The text this week is Article 49 of the Treaty on European Union (the sister provision to the once-famous Article 50).
According to a widely reported opinion poll, 44 per cent of Canadians would support Canada becoming a member of the European Union. This is highly unlikely to ever happen, of course, but what would happen if such support gained a settled majority in Canada and an application was made for membership?
The starting point is Article 49 of the Treaty on European Union, which is the entrance counterpart to the Article 50 exit provision central to Brexit. Article 49 provides:
“Any European State which respects the values referred to in Article 2 and is committed to promoting them may apply to become a member of the Union. The European Parliament and national Parliaments shall be notified of this application. The applicant State shall address its application to the Council, which shall act unanimously after consulting the Commission and after receiving the consent of the European Parliament, which shall act by a majority of its component members. The conditions of eligibility agreed upon by the European Council shall be taken into account.
“The conditions of admission and the adjustments to the Treaties on which the Union is founded, which such admission entails, shall be the subject of an agreement between the Member States and the applicant State. This agreement shall be submitted for ratification by all the contracting States in accordance with their respective constitutional requirements.”
The provision refers back to Article 2, which states:
“The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.”
And as Professor Steve Peers has pointed out, the preamble to the treaty makes other references to the “the continent of Europe”, “European integration”, the “inheritance of Europe”, and the “peoples of Europe”.
It thereby seems plain that membership of the European Union is limited to European states. But this proposition opens questions as well as closing them.
And so the questions become: What is Europe? And what is a European state?
To take the second question first, a European state does not mean one limited to the continent of Europe. Before 1985, Greenland was—via Denmark—part of the European Union’s predecessor the European Economic Community (EEC) despite being on the North American continental shelf. And the United Kingdom, which left the EU in 2020, includes as a matter of law (if not any sensible reality) Rockall, an island which is in the middle of nowhere.
Indeed, the European Union expressly recognises nine “outermost regions”—some as far away as the Indian Ocean—as part of the European Union. And in addition to this there are 13 overseas territories with a special relationship with the EU, including Saint-Pierre-et-Miquelon, which is just off the coast of, well, Canada.
And all this before we come to the distinct position of Cyprus, a full member state of the European Union which geographers would class as being part of west Asia, notwithstanding its cultural and political identity as European.
In essence, a European state need not, from a geographic perspective, be confined to Europe or even part of Europe. It would appear being European is state of mind.
Canada, unlike Cyprus, does not seem to really culturally and politically identify as European. It is North American, just like the United States and Mexico. It would be hard pressed to plausibly say it was a European state rather than a North American country.
But if Canada were to make a formal application, the question would then be about the response of the European Union. When Morocco made enquiries about joining the EEC, news reports at the time (here and here) said that it was turned down for not being European, though this reasoning may not have been recorded in a contemporaneous formal document (or at least not one now publicly available).
Such an objection did not prevent the application of Turkey, the majority of which is of course not in continental Europe, from becoming quite far advanced before being aborted for other reasons.
The real answer is not formal, but political. If Canada really wanted to join, and the member states and the European institutions wanted Canada to join, then a way would be found. The definition of “European state” could be fudged.
And if there were qualms about the wording of Article 49, and a sense that the application had to be by the book, the EU treaties could be amended accordingly. After all, there would have to be an accession treaty in any case—and as such further and consequential treaty changes elsewhere would not be an insurmountable obstacle.
Which means the only real question is not one of legal form but one of political and economic reality. Would Canada comply with the “Copenhagen criteria” for accession, including “effectively implement the rules, standards and policies that make up the body of EU law (the “acquis”), and adherence to the aims of political, economic and monetary union”?
Would Canada really want to reconfigure its state so as to become a member of a single market and customs union, with membership (in principle) of the euro and with shared policies on antitrust and trade generally? Perhaps these requirements could also be fudged—but it is the lot of candidate countries seeking membership to approximate their laws and policies with those of the EU as part of their route to membership.
And geography would still matter, and Canada’s greatest trading relationship will still be with its (currently) turbulent and tantrum-throwing southern neighbour. Membership of a trading bloc which is otherwise based across the Atlantic may become a hindrance.
Membership of the European Union may be a nice way of not thinking about the current problems for Canadians, but it would bring immense practical difficulties for the Canadian polity and economy. It may well be legally possible, with a few treaty changes, if necessary, but that is all.
What could, however, evolve is an entity that joins together the European Union with Canada and other non-members such as the UK, Norway and Iceland—and perhaps even Greenland—and that this entity could be placed on a formal footing. This would be outwith the EU treaties but would complement the EU bloc. And it would not then matter if the “Europe” label applied or not.
