Rule of law in the centre of the EU enlargement methodology: A short overview of the Western Balkans’ never-ending reform

https://doi.org/10.63189/DSCV1895

1. A Few Introductory Remarks

The rule of law, as the core value of the legal order of the European Union (EU),^[1] was formalised as an accession criterion in 1993 by adopting the so-called Copenhagen criteria. It was conceived that progress achieved under other criteria would inevitably contribute to the rule of law and vice versa, and advancements achieved regarding the rule of law implementation would speed up all other areas negotiated as part of the EU accession. Difficulties arise mostly because the rule of law is at times challenging to grasp and is subject to various interpretations in its implementation. This has resulted in the perception that this core value is criticised for its inconsistent implementation and is hence considered a tool of political pressure.

This essential constitutional value, common to all Member States, has not been defined in toto in the European framework for decades. The lack of a definition became noticeable in the enlarged EU, consisting of 27 (28 until recently) Member States and was even more visible in the ever-changing EU enlargement policy. Moreover, as a comprehensive but multifaceted value, it is highlighted as one of the most important conditions that determine the EU’s enlargement policy. It contributes to building of the European rule of law concept, as a dominant factor in every stage of European integration and, on a larger scale, of Europeanisation, which is seen as a complex societal, political, and legal process. However, as mentioned in the beginning, implementation of the rule of law is substantially “challenging” precisely because of the lack of its precise definition despite numerous scholarly approaches making sociolegal contributions to the definition of the rule of law and its components.^[2] The contribution of the European Court of Justice is not negligible, even though it only proclaimed the importance of said value without examining its substance and material elements in the European legal order.^[3]

Adoption of the Communication of the European Commission in 2014 established the Rule of Law Framework,^[4] and subsequent EU acts such as the Regulation on Rule of Law Conditionality^[5] marked the turning point in determining the substantive content of the rule of law principle. Therefore, besides its proclamation as a value common to all Member States envisaged in Article 2 of the Treaty of the EU and the introduction of a (not-so-successful) mechanism for its protection in Article 7, the EU had to develop new mechanisms to ensure its proper understanding and promotion. This proved especially challenging because, since 1993 until recently, the EU has observed the rule of law criterion in the enlargement process through a “formal lens.” This means that technical fulfilment of the rule of law criterion—the so-called “window dressing”—was sufficient for a candidate country to “tick the box”^[6] and fulfil the political accession condition—that is, to be considered that it ensured the rule of law before entering the EU. Furthermore, upon accession, a new Member State was not monitored for its respect of the rule of law and other values. This lack of a posteriorimechanism was based on the premise that all Member States already share the same values and that the new states will behave in the same manner in accordance with the principle of sincere cooperation and mutual trust.^[7] A decade after the Eastern enlargement of the EU, there has been more than enough time for EU bodies to understand that formal adoption of the acquis communitaire, as well as fulfilment of the accession criteria on paper, will not suffice when it comes to proper integration and involvement of Member States in the EU’s functioning as a political union based on shared values.

Therefore, the EU faced both internal and external challenges in upgrading the protection of this one value that is regarded as basis of the EU’s materiae constitutionis. On the one hand, the EU had to tackle rule of law backsliding amid an ongoing poly-crisis,^[8] and on the other, it had to ensure that the lessons, and therefore the mistakes from previous enlargements, are rectified. Considering the long line of candidates, or wishful candidates, among the Western Balkan countries, the EU had to upgrade its approach to accession. Therefore, the enlargement conditions became even more conditional, and EU monitoring was inevitably more stringent. The Western Balkan countries, especially the “front-runners”—Serbia and Montenegro—became subjects of a “litmus test” for the ever-changing accession methodology in practice.

2. Revised Methodology for the Western Balkan Countries

The path to becoming an EU Member State has not been the same for all countries that joined after its establishment. For the ongoing discussion on accession negotiations and lessons learned, the experience of enlargement before 2000 is not of high relevance. The negotiation framework was almost exclusively based on the experience of the so-called fifth enlargement, the largest enlargement of the EU. In that sense, we can observe two approaches to the attempt to institutionalise and create a framework for negotiation: one that observes each candidate as an individual state and the other that observes enlargement in relation to the regional context. The fifth enlargement, despite being the largest in terms of the number of states going through the same process simultaneously, still allowed for a custom-made approach to negotiations with each individual candidate, considering that the states that joined in 2004 did not belong to the same region or have similar European experiences in terms of legal and political contexts. However, it was evident that despite this diversity, equal things need to be treated equally, and a clear, universal, and methodological approach needs to be established. At the time, the rule of law had already been recognised as an accession criterion; however, in reality, the primary focus of these talks was on economic aspects and harmonisation with the formal EU acquis. It was only natural for the EU and its members to fail to understand the importance of values and principles of law for effective alignment, since this was the first time that the EU was dealing with developing close ties with states of completely different backgrounds in terms of their political context, values, and legislative and institutional mechanisms. At that time, it became clear that alignment was needed not only in technical terms but also with respect to the fundamental aspects of statehood. Having learned from this experience, the EU tried to shift some of its focus from economic integration to the formation of a political union as a sine qua non of an all-encompassing integration. The first instances of such an in-depth approach, and a shift of focus to the Copenhagen political criteria rather than economics, took place in Bulgaria and Romania, through the Cooperation and Verification Mechanism. This mechanism was supposed to help the fight against corruption and improve the judiciary,^[9] which are key elements of the rule of law in practice. In this instance, we can clearly see tendencies for a regional approach to enlargement, putting the rule of law at the centre, which will end up being the hallmark of EU accession talks with the Western Balkans.

Regional tendencies in EU accession have been observed in various initiatives for closer integration with the EU if not necessarily EU accession. For instance, this was observed in the region of Southeast Europe in the context of creating the Energy Community, Stability and Growth Pact, and Stabilization and Association Process for the former Yugoslavia. These tendencies amounted to a full-scale regional approach to accession negotiations, which showed, although never officially confirmed, clear indications that the next enlargement is expected to be a package deal. The last exception was Croatia, which helped create another milestone in the formulation of the negotiation framework. This consisted of the introduction of a reinforced pre-accession strategy and benchmarks (opening and closing) for the crucial Chapters 23 and 24,^[10] which had the rule of law protection as their basis.^[11] After the Croatian membership, the Western Balkans were treated as a whole rather than as individual states. Interestingly, this regional approach to accession coincided with the deterioration of internal cooperation within this politically volatile region with a tense history of armed conflict and tensions. Nonetheless, the EU opted for this joint strategy, which is expected to heal the wounds and reunite the states of the region, now as part of the EU. From the last accession “solo act”—that is, the Croatian negotiation process—the EU focused on Chapters 23 and 24 and upgraded them with the introduction of the “imbalance clause”^[12] for Montenegro and Serbia. This clause conditions the progress in other negotiating chapters on fulfilment of the benchmarks set in the chapters based on the fundamental chapters—Chapters 23 and 24. This means that even in the case of significant progress in other negotiating chapters, the EU could pause or temporarily stop further negotiations until the balance between the fundamental chapters and the other 32 chapters is restored. In addition, the EU has added interim benchmarks to an already complex negotiation framework. For example, Montenegro had 83 interim benchmarks defined by the EU Common Position for Chapters 23 and 24 dealing with the crucial rule of law components.

The most recent attempt to inspire a newfound interest and motivation in pursuing EU membership was in 2020, involving the adoption of the so-called revised methodology,^[13] which intended for Albania and North Macedonia to speed up the opening of negotiations. Serbia and Montenegro, considered the most advanced in terms of maturity of their EU accession talks, were offered the choice between the revised methodology and adherence to the former methodological approach. Both states opted for the revised methodology. Unfortunately, adoption of the revised methodology coincided with other global events, such as the COVID-19 pandemic and Russian aggression against Ukraine, which drew away both political attention and financial resources of the EU, so the results of the new approach are yet to be seen. Now, some four years down the road, barely any outcomes of the revised approach can be observed, neither in technical terms nor, more importantly, in bestowing the process direction and reinvigoration.

3. Fundamentals first approach: Is it still the case?

As part of the usual messages conveyed by various high officials of the EU when addressing the issue of enlargement and the situation in the Western Balkans, the impression is always that Cluster 1, or the so-called fundamentals, is part of the core set of goals to be achieved to attain membership. This is reiterated under the rule of “fundamentals first” confirmed in the European Commission’s New Enlargement Policy in 2016.^[14] However, there are many instances of subsequent actions from both the European Commission and Member States, indicating that this may no longer be the case. In the case of the Western Balkans, for over a decade, we have obtained a clear message that political criteria, including the rule of law, are of primary importance for the advancement of EU accession talks. Chapters 23 and 24 have always been considered the most difficult to negotiate and treat using a separate methodology with interim benchmarks and action plans. This heavy pressure on sensitive issues under political criteria has led to significant stalling of the EU accession talks and, coupled with other drawbacks affecting the enlargement policy, has taken a toll on the EU’s ability to tackle the issues and move forward with the process.

As for the rule of law and its importance in the EU accession context, the revised methodology insists on this concept being at the centre of achievements required by a candidate country; however, the document does not include a strong commitment or clear agenda for reinforcement of the rule of law. It appears that, as opposed to previous years, when the rule of law was regarded as the largest carrot on the accession talks’ stick, there has been a shift towards economic integration once again, as it was before the fifth enlargement. Emphasis is placed on both economic integration and regional aspects of economic cooperation and interoperability. This is further confirmed in the New Growth Plan for the Western Balkans,^[15] where fundamentals are recognised as the third pillar forming the basis of the policy for the region. The rule of law was referenced only a few times in the document, and it is presented as a mere instrument that is supposed to ensure the creation “of a favourable environment to attract private investment and generate sustainable economic growth while reducing emissions.”^[16] It appears that the European Commission has abandoned the rule of law and fundamental freedoms as the core values, allowing accession talks to develop in a way that exceeds close economic ties, be it because of their political volatility or the overall shift of focus. Nonetheless, it is interesting to observe whether the rule of law has advanced in other areas or is the key element without which all other areas make little sense and contribute only modestly to actual and true integration with the EU. Will moving the fundamentals to the side and returning the focus on economic integration allow this burdened political process to develop naturally and as a consequence of economic necessities? Is economic integration, regardless of its advancement, sufficient to secure EU enlargement?

This may still be a thought in terms of various strategic approaches to tackling difficult integrative issues at stake and their ups and downs; however, backsliding of the rule of law remains a concern not only in the Western Balkans but also among Member States. In response to the critical situation among Member States, the European Commission has been implementing the rule of law toolkit and assessing the rule of law situation in Member States as of 2020. Each Member State is assessed individually in accordance with the proposed methodology. Recommendations are provided after each reporting period, addressing all aspects indicative of the existence of the rule of law in a certain country. Considering this mechanism, which was established to help cope with the backsliding of rule of law, it is worth noting that the European Commission decided not to adapt these measures to the Western Balkans and preferred economic integration rather than value-based reform. In addition, Cluster 1 consists the former Chapters 23 and 24, which include strictly fundamentals, as well as additional chapters dealing with public procurement, financial control, and statistics, which can hardly be regarded as part of the core values and principles of the EU legal order.

^[1] Lukic Radović, Vlajkovic, 2019, pp. 407–422.

^[2] Vlajković, 2020, p. 240. Especially, see the thick and thin definitions of the rule of law in the legal theory.

^[3] See, for example, Case C/294/83, Partie écologiste “Les Verts” v. European Parliament [1986] ECR 1986 -01339, par. 23

^[4] Communication From The Commission To The European Parliament And The Council: A new EU Framework to strengthen the Rule of Law /* COM/2014/0158 final */

^[5] Regulation (EU, Euratom) 2020/2092 of the European Parliament and of the Council of 16 December 2020 on a general regime of conditionality for the protection of the Union budget, OJ L 433I, 22.12.2020, pp. 1–10.

^[6] Speech by Štefan Füle, Enlargement: Need for bold visions [Online]. Available at: https://ec.europa.eu/commission/presscorner/detail/en/SPEECH_13_1011 (Accessed 13 January 2024).

^[7] Vlajković, 2020, p. 243.

^[8] As coined by former EU Commission president Jean Claude Juncker. Speech by President Jean-Claude Juncker at the Annual General Meeting of the Hellenic Federation of Enterprises (SEV) (2016) [Online]. Available at https://ec.europa.eu/commission/presscorner/detail/en/SPEECH_16_2293 (Accessed 12 January 2024).

^[9] Pejović, 2016, p. 15.

^[10] Chapter 23, “Judiciary and Fundamental Rights” and Chapter 24, “Justice, Freedom and Security”

^[11] Pejović. 2016, p. 16.

^[12] Ibid., p. 20.

^[13] Communication From the Commission to the European Parliament, the Council, the European Economic And Social Committee and the Committee of the Regions Enhancing the accession process - A credible EU perspective for the Western Balkans, COM (2020) 57 final, Brussels, 5.2.2020.

^[14] Communication From the Commission to The European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions 2016 Communication on EU Enlargement Policy.

^[15] Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and The Committee of the Regions New growth plan for the Western Balkans, COM (2023) 691 FINAL, Brussels, 8.11.2023.

^[16] Ibid., p. 2.