Protecting the rule of law in EU Member States and Candidate Countries

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One of the latest publications by the Swedish Institute for European Policy Studies (SIEPS) is “Protecting the rule of law in EU Member States and Candidate Countries” written by Marko Kmezić and Florian Bieber. The report starts with a summary stating that despite already advanced EU policies to promote the rule of law, not only EU aspirants but also the several EU Member States are currently confronted with grave threats to the functioning of the rule of law. The report highlights “a double challenge to the EU’s role in ensuring the rule of law within the Union and promoting it in the future Member States”.

In order to address these deficiencies, a series of recommendations are presented by the researchers such as transparency, independent state agencies, civil society, monitoring instruments and conditionality strategies.

According to the authors, there is a need for a conceptual shift, by recognising that problems concerning the rule of law are often the result of a deliberate policy of autocrats and not the accidental by-product of weak states.

European Union and the rule of law

The legal order of the EU also comprises the national constitutional traditions of EU Member States, the Charter of Fundamental Rights of the European Union, the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) and the jurisprudence of the Court of Justice of the European Union (ECJ). Thereby, a functioning rule of law is a cornerstone of a democratic system in all EU-states, indispensable for both the efficient implementation of the internal market and for the common area of security and justice.

The Union is legally obliged to promote its fundamental values, which underlie the Union’s external relations and interactions with sovereign states and other unions and regional organisations. Therefore, a functioning rule of law is an important element of the EU’s enlargement policy, as its implementation creates a key condition for aspiring members to join the Union.

Countries that are having status as EU-candidates, as future members of the EU, are obliged to comply with the rule of law principles before they join the Union. However, as the researchers write, the experience as with Bulgaria is once they have become the Member States, the mechanisms for enforcing and monitoring adherence to the rule of law and other foundational legal principles have proven relatively weak.

There are also problems concerning the rule of law and democratisation as in the Western Balkans with cases of domestic political elites have established “democratic façade” by holding more or less regular elections, by promulgating legal acts guaranteeing freedom of expression, and by constitutionally declaring a strict system of checks and balances but in reality relying on informal structures and clientelism, control of the media and even regular manufacture of crises to undermine democracy and the rule of law.

Enforcement mechanism

The enforcement instrument assessing the respect for the rule of law in candidate countries is enshrined in Article 49 TEU. It reads that only European states that respect the EU values stated in Article 2 TEU and are committed to promoting them may apply to become a member of the Union.

The report states that the EU’s comprehensive strategy to promote an effective rule of law is exercised through the Stabilisation and Association Process as in the Western Balkans. This process consists of the progressive development of contractual relations and institutional ties based on an enhanced political dialogue and monitoring process, supported by financial assistance and technical aid.

The most powerful conditionality tool with any candidate country is “gatekeeping” during the different phases of the EU accession process, particularly when it comes to achieving candidate status and starting accession negotiations. Examples include market access, enhanced financial aid and visa liberalisation, and the candidates must be assured that they will receive the promised rewards after complying with the EU demands.

The compliance with the EU rule of law conditionality is often, according to the researchers, “a menace to prevailing corrupt practices of domestic ruling elites”. The researcher present examples as with the recent convictions of the former Croatian Prime Minister Ivo Sanader on corruption charges and of the former Macedonian Prime Minister Nikola Gruevski on embezzlement charges serve as striking examples of the harmful effect that EU reforms can have for established elites. Kmezic and Bieber write that it can be concluded that reforms will not be pursued in the Balkans if there is an apparent absence of a functional system of checks and balances that would restrain the arbitrariness of elites because the price for the ruling elites is too high compared to the benefits.

The Copenhagen criteria

The Copenhagen criteria require candidate countries to have stable democratic institutions, a functioning market economy and the capacity to adopt and implement the ever-growing body of the Acquis communautaire.

Therefore, the Copenhagen criteria remain an imperfect starting point towards grasping the essence of the EU’s rule of law criteria. By offering a variety of influence tools, the Copenhagen-related documents, in fact, provide the EU-Commission with a complex system of reform promotion in that they allow it to make practical use of the conditionality principle for the benefit of both the European Union and candidate countries.

When it comes to Western Balkans, the researchers write that this approach has meant that negotiations on the most difficult aspect with the rule of law reforms coming first to allow enough time to build solid track records of implementation before opening other negotiating chapters. Furthermore, the Commission introduced the so-called imbalance clause in the negotiations in 2012, which means that if an accession country is progressing within other chapters, but not in the rule of law, negotiations on all chapters can be stopped.

In practice, according to the researchers, the interim benchmarks are very broad and represent a long-term goal, which makes their assessment rather superficial. Besides, the benchmarks are not tailored to the specific circumstances of the countries they target, as seen in the example of identical benchmarks developed for two accession frontrunners—Serbia and Montenegro.

Monitoring, transparency and technical assistance

Following the 2007 enlargement to Romania and Bulgaria, the EU redefined its monitoring mechanisms, adopting a more rigorous application of conditionality. Nevertheless, the amended monitoring tools have been criticised by experts for focusing on individual aspects that jointly do not provide good insight into the state of the rule of law in candidate countries.

Also, as the researchers write it, the EU’s monitoring process suffers greatly from the lack of transparency, as the Commission refuses to publish documents to allow outside observers to scrutinise the assessment, such as reports from the peer review missions or commentaries on legislation. As a consequence, neither the EU reports nor its official statements properly address the root causes of the rule of law deficiencies in the region.

While European integration has made a significant and lasting contribution to a rule-based order in Europe, problems with democratic pluralism and governance based on the rule of law have increased throughout the EU Member States.

For example, the systematic and deliberate erosion of the rule of law in Hungary under Viktor Orbán’s government is already well-known and has been emulated by other EU member states, particularly Poland. In September 2018, the Commission had to refer Poland to the ECJ for the adoption of a new law on the Supreme Court, which was one year later considered in breach of the principle of judicial independence.

Moreover, not only “new Member States” but also long-established EU countries are struggling with the rule of law implementation, such as Italy with problems in the sphere of media pluralism or Greece with poor governance as revealed by the euro crisis. The rule of law has also been openly challenged by the rise of populist and far-right parties across Europe which openly reject the rule of law. Taking into account the need for improvement, the Commission has grouped this work into three thematic areas:

1.Legality, legal certainty, equality before the law and separation of powers

2. Prohibition of arbitrariness and penalties for corruption

3. Effective judicial protection by independent courts

Article 7, ECJ and the Justice Scoreboard

Article 7 in the Treaty of the European Union (TEU) is exceptional, and the last resort measure to confront a serious breach of the rule of law in an EU Member State. It provides a specific enforcement mechanism in two situations:

  • Where there is a clear risk of a serious breach of Article 2 values as concerning rule-of-law in a Member State
  • When the European Council acting by unanimity, excluding the state in question, determines the existence of a serious and persistent breach by a Member State of the values referred to in Article 2.

According to researchers, this situation concerning article 7 was clearly visible in the difficulties to determine a serious breach of the rule of law by Poland and Hungary, as Hungary formed a coalition with Poland and vetoed the resolution. (In European Council voting).

The limited outcome of Article 7 regarding the rule of law in Poland and Hungary, as the researchers write, raises the question of the instrument’s effectiveness and calls for realistic alternatives. The Commission may launch a formal infringement procedure laying down a request to comply with EU law by referring the matter to the ECJ.

For example, the Commission has referred Poland to the ECJ in reaction to the serious rule of law problems linked to a breach of Union law and in its seminal ruling of 24 June 2019, the ECJ declared that by lowering the retirement age of judges of the Supreme Court, and by granting the President of Poland discretion to extend the active mandate of Supreme Court judges upon reaching the lowered retirement age, Poland violated the principle of judicial independence, which is a fundamental value of the EU.

Last but not least, there is the annual EU Justice Scoreboard (the Scoreboard) as part of the EU’s rule of law toolbox used by the European Commission to monitor Member States’ justice reforms. This comparative tool looks at a range of institutional indicators to assess the independence, quality and efficiency of national justice systems, restraining, however, from promoting any particular type of justice system.

Also, the Scoreboard mainly focuses on litigious civil and commercial cases as well as administrative cases that emphasise quantitative benchmarks, such as the appointment and dismissal procedures of the national judiciary or a breakdown of total government spending on judges’ salaries, court buildings, software development and legal aid. Country specific recommendations have a preventive and a coercive arm, and while the latter consists of stricter monitoring, a final option in cases of perpetual non-compliance is the imposition of financial fines.

Policy recommendations

There are several policy recommendations proposed by the researchers. They state that Despite giving greater attention to the rule of law in the accession process and towards the Member States, the EU has been unable in the last decade to prevent the decline of the rule of law in some Member States and most candidate countries. In particular, this erosion has not occurred as a result of ineffective public administrations and/or hapless decisions by well-intended governments but as a result as a part of deliberate policies by some Member State governments and candidate country governments to subvert and undermine the rule of law or prevent its consolidation.

Therefore, the EU policies regarding the rule of law thus require the provision of tools for both members and future members. While the accession process can provide leverage, if successful, it cannot prevent backsliding after accession, as no democracy and rule of law-based system is ever completely immune to setbacks. It is thus impossible to develop an accession process that completely ensures an ever- solid rule of the law-based system after accession.

To address this challenge, joint strategies for current and future member states are required according to the researchers. Including tools to identify setbacks in the rule of law, such as rolling out the EU justice scoreboard to all countries of the Western Balkans, and developing the enlargement methodology to focus beyond the judiciary to other aspects of the rule of law, such as media freedom, checks and balances, informalities and anti-corruption. Besides, the rule of law expert missions like the ones developed in North Macedonia and since then identified as a general tool for the Western Balkans could be used within the EU.

Among the proposed policy recommendations are:

  1. Improve civil society assistance.

The EU’s ongoing rule of law efforts is state-centred, with a strong emphasis on law reform and government institutions, particularly judiciaries. In contrast, civil society is, at best, an adjunct to the institution-building process.

There is a need for a more inclusive bottom-up approach to the EU’s rule of law promotion in which civil society actors, including constructive grassroots and local initiatives, are empowered to play a rights-holder’s role vis-à-vis public authority. This would help to push for compliance with key laws, monitor their implementation and influence countries strongly dependent on the inflow of IPA financial resources.

In addition, more funding must be provided to protect civil society activists from state repression in countries with shrinking democratic space. EU monitoring bodies feeding into an annual cycle on the rule of law or accession Progress Reports should draw on local expertise provided by civil society organisations. Such collaboration should be institutionalised via regular channels of communication, for example, through commissioning regular ‘shadow’ reports on the state of the rule of law and democracy.

2. Support specialised independent state agencies.

The researchers write that “no matter how good the legislative solutions adopted by national parliaments are, they are not able to compensate for the lack of independence and quality of the implementing authorities.” Alternatively, the lack of capacity to implement adopted legislation efficiently and effectively cripples compliance with the EU rule of law conditionality in both the pre-and post-accession periods. The role of independent agencies can be crucial in the implementation of the rule of law norms.

Hence, the EU should provide more attention to capacity building not only in “traditional” rule of law sectors as the judiciary, the police and the prosecutors, but should also aim at strengthening the effectiveness of administrative mechanisms in the Western Balkan countries and the Member States alike. These bodies must enjoy a high level of independence and ideal if they could benefit from international cooperation with organisations such as INTERPOL, Eurojust, Europol, OLAF, the FBI, etc.

3. Closely monitor the state of democracy.

While the EU has put a lot of effort into promoting and defending democracy and the rule of law beyond its borders, it has been rather unsuccessful in preventing internal democratic backsliding. The EU is wrong to believe that the rule of law in the Member States can be protected on its own, as it continues to disregard other principles and values enshrined in Article 2 TEU.

From a doctrinal and practical point of view, democracy should at least be monitored internally within the EU. This study has observed frequent violations of the rule of law in the several EU Member States. The underlying problem is not just the declining rule of law but also the democratic decline. As countries like Poland and Hungary have become considerably less democratic in recent years to the degree that Hungary is no longer considered a democracy by several independent indices, democracy within the EU can no longer be taken for granted.

In addition, despite the prominence of democratic conditionality within the enlargement process, the EU has repeatedly been criticised for focusing too much on the smart design of formal institutions while neglecting the larger undemocratic context and the informal practices that can undermine these institutions. In addition, the EU has been short-changing the state of democracy for the sake of other criteria, most notably the notion of stability of the region.

The rule of law and democracy need to be considered as interlinked and mutually reinforcing concepts. Ideally, existing monitoring tools should be integrated under one authority that would regularly observe institutional compliance with the Union’s fundamental values. The European Fundamental Rights Agency (FRA), assisted by local expertise, could expand its scope of work to cover all EU Member States and potential candidate countries by means of a regular assessment on specific legal and political measures concerning the rule of law and democratic reforms. In its work, the FRA would use operational hed systemic rule of law issues in North Macedonia in 2015 and 2017.

In concrete terms, peer review missions should be composed of the independent senior rule of law experts equipped with relevant knowledge of the target country and supported by local experts. They would focus on the most problematic parts of EU values internalisation in the target country, with the task of reporting on the most significant shortcomings. These assessments should feed into the European Semester that should be expanded to include future Member States as well as in the existing enlargement monitoring instruments.

4. Make the rule of law benchmarks clearer.

Clear EU demands presuppose that the target governments know precisely what they are expected to do should they decide to comply with the EU’s conditions. The establishment of an unambiguous and coherent EU policy for the quality of justice, which addresses not only aspiring members but also existing Member States would significantly enhance the effectiveness of the rule of the law implementation process. It would also facilitate the role of civil society in holding their government. Therefore, the EU should abandon the “moving target” strategy in the field of the rule of law conditionality and instead distil the particular country-specific criteria and indicators.

5. Amend the rule of law related decision-making procedures.

The values enshrined in Article 2 TEU are protected by the current rule of law mechanism established in Article 7 TEU, which in theory enables the EU to suspend certain membership rights in case of Member States’ serious and persistent breach or clear risk of a breach of the values. Application of sanctions enshrined in Article 7 requires unanimous (minus the Member State in question) decision in the Council, which has thus far proved unattainable. On the other hand, a single Member State can invoke the overall balance clause to prevent a candidate country from further opening negotiating chapters until satisfactory progress on reforms under the rule of law-related chapters is achieved and should take the form of a reversed qualified majority while gatekeeping in the accession process should require a higher threshold.

6. Introduce the rule of law conditionality for the Member States.

Conditioning is a crucial aspect of the EU’s rule of law promotion strategy in candidate countries. As such, it could serve as a useful coercive instrument complementary to the Article 7 procedure. As part of proposals for the next Multiannual Financial Framework (2021–2027), the Commission has already established a connection between the respect for the rule of law and the Union’s budget.

Under the ‘rule of law conditionality,’ the Commission would be given the authority to recommend to the Council, deciding by a reverse qualified majority, to reduce EU funding appropriately and proportionately based upon sufficient evidence of generalised deficiencies in the rule of law in a Member State. This procedure would give the Union a major argument vis-à-vis the Member States, namely that EU funding is unable to achieve its core aims when the rule of law is systematically flawed.

For more information about the report, click on the following link.

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Vladan Lausevic

Vladan Lausevic

I am active as a social and policy entrepreneur. SEEDS ambassador. Motto: I have no identity, I have only identities.