Strengthening the Rule of Law in South East Europe and the EU: Instruments, challenges and lessons learned

On the 3 February, SEESOX in cooperation with the School of Transnational Governance of the European University Institute (EUI), organised a panel on the strengthening of the rule of law in the EU and South East Europe. The panel included Marko Kmezic (Graz University), Eli Gateva (University of Oxford) and Carlos Closa Montero (EUI) and was chaired by Kalypso Nicolaidis (EUI/Oxford). All panellists engaged with the EU’s focus on the the issue of the rule of law in the member states, especially in countries with weaker institutions, and the renewed emphasis of the European Commission on the pre-accession and post-accession rule of law conditionality including the linkages with the disbursement of the EU funds. However, despite an enhanced strategy and a broad mix of instruments, the deterioration of the rule of law in some member states and the candidate countries is a worrying trend and reveals the inability of the EU to address this important issue. With these initial assumptions, the panel discussed the efforts of the EU’s to spread rule of law practices in areas such as justice, fight against corruption and organised crime, emphasising South East Europe - Western Balkans, Bulgaria and Romania – and engaging in a critical assessment of the appropriateness and effectiveness of the instruments at its disposal.

The first speaker, Marko Kmezic, noted, on the one hand, the significance and potential contribution of the EU in this field and, on the other, the considerable democratic backsliding in the Western Balkans. While the European Commission since 2018 intensified its focus on the rule of law in the EU accession process of the Western Balkan states, through increased conditionality relating to the adoption of the relevant negotiation chapters 23 and 24, the success of its approach has been very modest and has met with implementation problems, use of inappropriate interim benchmarks and lack of membership credibility. In addition, he argued that this ineffectiveness was worsened by the resistance of local veto players and stressed the need for alternative opposition political dynamics and the inclusion of the civil society actors. Eli Gateva focused on the cases of Romania and Bulgaria, where the EU due to lack of satisfactory progress in the area of judicial reform and the fight against corruption set up the Cooperation and Verification Mechanism (CVM) and applied a post-accession conditionality with continuous monitoring that has lasted until the present days. The fact that this mechanism is still in place in both of these states shows that it has not fulfilled its role. Having said that, such post-accession conditionality has provided us with some valuable lessons; the CVM has reinforced the primacy of the Copenhagen political criteria and has shaped not just the evolution of EU enlargement policy but also the development of EU wide rule of law toolbox; moreover, the rule of law issues under scrutiny are not examined separately and the Commission looks at justice, corruption and organised crime as interlinked matters. Eli also mentioned that while the two states built new institutions, upon the recommendation of the EU, these have not been a panacea and they have exhibited varying degrees of success. She finally agreed with Marko Kmezic that the EU can play an important role in this field, in that it holds an important toolbox and can provide models and pressure but it needs to be more efficient and have a real impact.

This was the issue that was developed further by Carlos Closa Montero who gave an overview of the EU rule of law toolbox referring to their widening scope, the mechanisms of compliance and the actual impact. He argued that most of the used tools are preventive in nature which limits their degree of efficiency while there are very few mechanisms which are truly reactive. Most mechanisms for compliance rely on soft power while there are very few relying on pressure or coercion and most of them are really weak on strong enforcement. Carlos argued that the EU faces a Catch 22 situation regarding enforcement: the EU as a community of values relies on the assumption that the states will comply with the rules. But why authorities that violate the rule of law would accept, precisely, to comply with EU rules? The EU lacks coercion instruments and this may be a weakness for obtaining compliance. Carlos speculated that in the absence of enforcement, suspension of membership may become the last option in the protection of law and democracy but would the EU be willing to go that far?

The discussion that followed touched upon more political questions such as the EU’s double standards in addressing the rule of law, the conflicts between values and member states interests, the political and ideological reasons for not putting too much pressure on backsliding states, the credibility of civil society as a reliable domestic player in addressing rule of law matters.

Othon Anastasakis (Director of SEESOX)