Protecting the rule of law in EU Member States and Candidate Countries
By: Vladan Lausevic
Tags: European Union, Balkans, Democracy, Europe, Rule Of Law

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:

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.