1 Introduction

More than twenty years have passed since the Thessaloniki Summit, a gathering of European countries in which the European Union (EU) committed to Western Balkans (WB) enlargement.Footnote 1 It has been at least five years since the articles, policy briefs, and speeches on that topic reference this commitment as an unfulfilled promise. Growing resentment among the general population mirrors frustration at the gatherings of policy experts and analysts. The path to membership – or, as it has recently become fashionable to re-style and re-size it – a ‘special relationship’ – of the WB countries remains unpredictable.

The topic of the rule of law occupies a central place in most of the discussions on the matter. This topic remains central for two reasons: first, the EU would like to avoid the problems it faced with consolidating the rule of law in two EU member states it monitored after accession, Romania and Bulgaria.Footnote 2 Along with the crisis created by the democratic backsliding in Poland and Hungary and the rise of populist tendencies across the continent, the desire to avoid post-membership problems shaped the thinking of the EU member states and institutions.

The second reason for the rule of law centrality—and a counterpoint to the EU’s supply-side thinking about the rule of law—is the desire of citizens and the WB countries' political leaders to join the EU and abide by rule of law standards. Wide-reaching reforms carried out under the auspices and the technical and logistical support of the EU and its institutions changed the countries' economic, social, and legal landscape. Indeed, many political commitments have been slowly implemented, and some remain pending. However, the general perception is that further improvements to the rule of law are needed and that its transformative potential is uncontested and still not fully utilized.Footnote 3

Despite significant advances in government transparency,Footnote 4 corruption remains highFootnote 5; judicial self-governance models based on the Euro-model of the judicial councils have not brought judicial independence,Footnote 6 seen as the main precondition for the fight against corruption.Footnote 7 Political parties appropriate government funds,Footnote 8 citizens lack trust in institutions, and a creeping influence of autocratic regimes makes the region vulnerable to the promotion of illiberal democracy that is becoming entrenched in Serbia.Footnote 9 A recent European Court of Auditors study has concluded that the support to the rule of law provided to the Western Balkans between 2014 and 2020 has been largely inefficient in responding to these challenges.Footnote 10

This is one of the main reasons why the relationship between the WB countries and the EU has been described as a stabilitocracyFootnote 11; the EU’s tacit support for undemocratic governments and practices in exchange for stability, protection of foreign investment, and export of workforce to the EU member states. However, the geopolitical threats posed by non-European actors, especially Russia and China, challenged this paradigm. In the aftermath of the 2022 Russian aggression against Ukraine, it was recognized that membership in the EU or a closer relationship between the Union and the WB has a security dimension. Acting on this impetus, the EU has offered candidacy status to Bosnia and Herzegovina, despite the country’s failing to fulfill the conditions for the opening of negotiations. It increased activities on the recognition of Kosovo, which remains unrecognized by five EU member states,Footnote 12 and it has demanded that Serbia de facto recognize Kosovo. It has pressed the government of Albania into moving forward on the rule of law reforms and has supported a change of government in Montenegro.

Despite all this political activity, the EU is not considering full membership of the WB, but different membership frameworks. Proposals and processes to create two-tier memberships,Footnote 13 a common regional market,Footnote 14 staged accession,Footnote 15 and an extension of the European Economic AreaFootnote 16 (EEA) to the WB are considered replacements for the membership. Even though all these proposals seem to focus on the economic and security dimensions of a closer relationship between the EU and the WB region, the rule of law remains, at least, declaratively, an integral and important element of this emerging post-enlargement paradigm. Still, with the economic, geopolitical, and security aspects of the problem now being at the forefront, the question remains what to do with the challenges to the rule of law. Given the size of the EU’s economy and a plethora of policy options mentioned above it could afford to ignore it – the rule of law crisis in the Balkans (with a population and GDP somehwat lower than that of Romania) is hardly something that could destabilize Europe. However, a political problem makes that difficult: the EU would then have to do treat Ukraine in the same way. The sheer size of aid, security spending and political commitmentsFootnote 17 (to say nothing of corruption risks) make that, an unlikely course of events at least in the short run. Moreover, the principle of rule of law remains central to the EU’s external actionFootnote 18 and the dependence of the WB economies on the EU guarantee that the countries will remain addressees of rule of law promotion. Therefore, the EU has little maneuver space to ignore the rule of law demands. On the domestic front it may ignore the rule of law demands in exchange for a unified stance towards Ukraine.Footnote 19 On the external front however, it is much more likely that it will leave behind the policy It may continue to shift the blame for all failures on the local actors and take credit for any success without acknowledging the shortcomings of its own policies. Insteadm it could also choose to consider what priority level should the rule of law reforms be given and how to mainstream them amidst the existing deficiencies and newly emerging security threats.

In this paper, I aim to offer two perspectives to the problem. First, I argue that the failure to establish the desired level of the rule of law entrenchment should not be solely blamed on domestic actors but also on the expansive formality of the rule of law demands. I claim that the increased focus on the judiciary and its role in preventing and sanctioning corruption ignores other essential elements in building the rule of law. Second, I dissect the proposals that substitute or may accompany the enlargement to propose a more stringent focus on the socioeconomic fundamentals of the rule of law. I identify the current market integration level that the WB countries have achieved with the EU. Third, I clarify some of the most important policy failures in the WB countries' rule of law promotion and transposition process. I offer a more balanced approach to the rule of law reforms, demonstrating how socio-economic reforms may foster stronger rule of law resilience through the creation of societies that could be more resilient to corruption.

2 Market Integration

The enlargement process across the region and Central and Eastern Europe strongly relied on institution building. The institutional theory of economics, which best explains the theory of change on which the establishment of the rule of law standards relied,Footnote 20 posits that the quality of institutions distinguishes successful societies built on the rule of law that facilitates economic development and human rights protection from the less economically successful societies where democracy and the rule of law lack entrenchment or are absent altogether.Footnote 21 Once the quality of institutions was to be considered adequate, a political decision on membership would follow. Thus, the efforts made by the states to reform their institutions would be rewarded by membership and full economic integration. Integration brought access to structural and cohesion funds, full mobility of the workforce, foreign direct investments, and better insertion in the world markets.Footnote 22

This relatively straightforward relationship between reforms and rewards worked in the countries that joined the Union as a part of the big enlargement in 2004. In 2007, the enlargement to Romania and Bulgaria came with some restrictions to labor mobility and, famously for the rule of law experts, with the Co-operation and Verification Mechanism (CVM) and the special benchmarks to track the rule of law progress and the quality of work of the institutions.Footnote 23 But Romania and Bulgaria, countries that were, in 2007, at the same level as the WB countries in terms of many economic indicators, have achieved economic convergence with the EU. This was achieved through the liberal economic policies that the governments in these countries implemented and through the use of the EU funds allocated to the countries to increase competitiveness and economic convergence. Romania also conducted a strong anti-corruption campaign that targeted leading public officials. This campaign impacted the perception of impunity concerning the commitment of corrupt acts by public officials that, according to some scholars, contributed to the country's economic growth.Footnote 24 For the WB countries, the process was more complex. Having concluded the Stabilization and Association Agreements, they gradually liberalized their trade with the EU and aligned their economic policies with those of the EU. They adopted the rules on state aid, joined the pan-European energy market, and gradually began with the transposition of the acquis in all areas of law.Footnote 25 Many of these reforms were painful to implement, as they severely limited the economic options available to the governments. But, unlike the situation with the countries of the three previous enlargements of 2004, 2007, and 2013, this opening of their economies and liberalization was not followed by access to structural and cohesion funds. Thus, the tradeoff between full economic liberalization and integration on one side and economic development on the other did not apply to the six WB countries.

While the investors from EU countries were the leading investors in every of the six WB countries, the size of investments did not match the countries' economic needs. That meant that the excess workforce would seek unemployment elsewhere. Since 2014, many of the EU member states have liberalized employment for the citizens of WB states, especially in areas such as information technologies, services, medical care, and other industries where the domestic EU workforce could not fill the gaps. This exacerbated in turn, the problem of brain drain already present in the region.Footnote 26 Remittances sent by these migrant workers helped keep the economy afloat and alleviated the trade deficit between the EU and the region, which in 2022 stood at 9.5 billion euros annually.Footnote 27 This amount is less than the amount that the EU projects to invest in the next few years for the entire region through loans and grants.Footnote 28

Another consequence of inadequate political and economic integration was the growth of Russian and Chinese influence. Russia offered political support, primarily to Serbia, in its quest not to recognize Kosovo as a part of its EU accession process. China exploited opportunities to invest in energy transition, modernization of the railways, and rebuilding industrial capacities. The successes achieved in promoting these investments and their scale scared the EU officials who viewed them as a geopolitical threat and a waning of the EU's political and economic influence.Footnote 29 China was also the first to offer concrete aid in the suppression of COVID pandemic through supply of vaccines; despite proclaimed solidarity, the EU left the WB states to the COVAX mechanism that failed to deliver the vaccines in time, creating significant risk and uncertainty.Footnote 30

The increased economic convergence led to low but stable growth rates; the gap between the EU and WB countries economies has narrowed. In 2023, the WB countries are at 40% of the EU’s GDP per capita – in 2008, this number was lower.Footnote 31 However, following the increased funding to be received by the EU member states between 2021 and 2027, the gap is predicted to grow as the pace of investments in the WB will not match that in the EU proper.Footnote 32 This was the economic context in which the rule of law reforms were pursued from 2007 onwards – growing economic dependency of the Union, increased demands for economic and rule of law standards but hardly any of the benefits experienced by the previous member states. For that reason, the pre-enlargement context shared by the WB six countries in economic, social, and geopolitical terms is not comparable to previous enlargements.

3 Formal Rule of Law in the Enlargement and Accession Process

3.1 Lack of Progress in the Establishment of the Rule of Law Standards

Within the framework of economic development, according to standard accounts, the rule of law includes the following aspects:

  1. 1.

    security of property and contract rights;

  2. 2.

    security of person;

  3. 3.

    level of corruption;

  4. 4.

    strength of legal institutions.Footnote 33

Despite the relevance of the security of persons, the E.U. in its country reports downplays the importance of the security of persons paying more attention to the security of property and contract rights.Footnote 34 The country reports make reference to the state of company law, the backlog of the courts, and intellectual property rights.Footnote 35 Even more attention is paid to the strength of legal institutions and the level of corruption. But of all the legal institutions, it is the courts and the bodies of the judicial self-governance that get the most attention. National Action Plans for Chapters 23 and 24 of the acquis detail a robust set of legal reforms, the majority of which focuses on the judicial institutions. At the same time, the reports recognize the need for the parliaments to remain autonomous of the executive branch of government yet do not envisage – except for the passing reference on the usage of urgent procedures and lack of parliamentary oversight– any specific role of the highest legislative bodies in the protection of fundamental rights.Footnote 36 With the exception of Bosnia and Herzegovina and North Macedonia, where frequent parliamentary blockades slow down parliamentary work, little reference is made to the general role of the legislative branch of government in producing quality legislation.

Such a focus does not fully capture the whole spectrum of the rule of law. One of the most used conceptions of the rule of law, that of Lon Fuller, includes eight criteria: generality, publicity, non-retroactivity, clarity, noncontradiction, constancy, feasibility, and congruity of laws, refer primarily to the role that the lawmakers have.Footnote 37 The country reports refer to the importance of consultations in developing legislative proposals, and the European Commission has funded Technical Assistance and Information Exchange Projects that were, inter alia, to work on the transfer of knowledge between EU member states' parliaments and WB countries. Yet, if we read the country reports, the quality of parliamentary work, as opposed to the quality of the work of the judiciary, seems to pale in comparison. Only in 2023 would the Commission stop ignoring the role of the parliaments. Until then, it had focused exclusively on the executive branch and the courts as the main ‘establishers’ implementers? of the rule of law. It appears as if the extensive funding of civil society organizations steps in the role that a more proactive parliamentary oversight would have. In Serbia, for example, the coalition of non-governmental organizations called National Convent on the European Union is an institutionalized way of monitoring the efforts of the state and the EU in the accession process, particularly regarding the rule of law.Footnote 38

Following the 2004 enlargements, the EU’s demands for the formal quality of the rule of law greatly increased. This increase materialized in two main areas: 1. intense screening of institutions through benchmarking to track the progress in the quality of the rule of law and 2. focus on the fight against corruption. These two mechanisms are to help the EU estimate if the rule of law is considered entrenched in the candidate countries. Benchmarking is best evident in Serbia and Montenegro, two countries touted as frontrunners of the European integrations, adopted the action plans for transposition and implementation of the rule of law standards in Chapters 23 and 24 regulating fundamental rights more than ten years ago (in case of Montenegro) and seven years in case of Serbia.Footnote 39 These plans, with numerous targets and benchmarks, dictate the content of the legal reform in the countries and are important anti-corruption policy documents. And yet, both Serbia and Montenegro, as frontrunners as well as other countries in the accession process, have – according to the EU’s own scoreboard – “some level of preparation” in the rule of law.Footnote 40

This assessment is based on the evaluation of preparedness in the so-called rule of law fundamentals: fight against organized crime, freedom of expression, functioning of the judiciary, and fight against corruption. But, similar as they are in their scores on the rule of law fundamentals, their score on other chapters significantly differs; of the possible 99 points,Footnote 41 Montenegro has 70, Serbia 67, while Bosnia and Herzegovina is last with 22.Footnote 42 This uneven progress may mean that the countries can advance in other areas important for European integration without progressing in the rule of law fundamentals. The review of certain aspects of the rule of law building that follows will support the last assertion.

3.2 Judicial Independence

Most analyses and recommendations of the action plans and country reports state that the slowest progress of reforms is in the domain of judicial independence.Footnote 43 As we have seen from the preceding analysis, the EU takes this component of the rule of law more seriously than the others, assuming that a strong and independent judiciary is a primary deterrent to corruption. Indeed, judicial independence lies at the heart of the rule of law, yet the models for its preservation through judicial self–governance do not seem to work. Judicial self-governance relies on the work of judicial councils, bodies composed and elected primarily by judges and prosecutors. These bodies preserve judicial independence as a key part of judicial reputationFootnote 44 that, consequentially, strengthens citizens’ trust in the rule of law. The establishment of the judicial councils was a cornerstone of judicial reform, and they were, in the cases of Bosnia and Herzegovina and Kosovo, established even before the Stabilization and Association Agreements were concluded. The main inspiration for their institutional design was the so—called Euro model of judicial councils modeled after the Italian Supreme Council of Magistrates.Footnote 45

Yet, the importance of judicial associations’ role in the judicial council’s functioning was lost on both the European and domestic reformers. What further strengthened the independence of the Italian judges and prosecutors was that they chose their representatives, making two-thirds of the council members from the rank of judges and prosecutors regardless of their position in lower or higher courts.Footnote 46 The represented judges are always members of the Italian National Association of Judges, divided into four correnti (‘currents’) that gather the judges according to their personal, political, and professional preferences. Such a level of organization of judges guarantees that the elections for the appointment of their representatives into the judicial council depend on a shared vision of the functioning of the judicial branch. The judicial associations' role in the legal mobilizations against rule of law violations in the EU cannot be overstated. In Portugal, Poland, and Romania, judicial associations have helped the judges and prosecutors challenge the decisions of bodies that sought to remove them or curb their power. It is the result of such mobilizations that the Court of Justice of the European Union has, in AFJR, Polish judges, and numerous other cases, supported judicial independence against the attack of governments that sought to limit its independence.Footnote 47 In Slovenia, the existence of these organizations helped the transition from a communist-era judiciary to the European rule of law standards.Footnote 48

The relevance of judicial associations seems missed by the European Commission, which does not evaluate their status, strength, and role in its rule of law monitoring tools. This is strange because the strength of these organizations was a key factor that made the model of Italian judicial councils successful. In Montenegro, Kosovo, Serbia, Bosnia, and Herzegovina, as well as most EU member states where the model was replicated, such as Romania, the number of judicial council representatives is allocated to specific ranks within the judiciary. For example, in Kosovo, the council comprises 13 members, seven of whom are judges. Of them, two come from the ranks of Supreme Court judges, two from the ranks of the judges in the courts of the second instance, and three from the basic, first instance courts.Footnote 49 Such a composition of the council gives much more weight to the judges of the higher courts, although their number is far smaller than that of the judges of the lower courts. This solution discourages or lowers the opportunities for judicial organizing as the judges in the judicial association face the hurdle of mobilizing senior judges with less interest in joining and operating judicial associations. For this reason, Kosar and others who were studying the phenomenon of judicial councils have found that the positions of power that were previously held by the justice ministers now fall in the position of court presidents as they are key in judicial self-governance.Footnote 50 That doesn't mean we should view judicial associations as a panacea that can cure all the shortcomings of judicial independence based on the model of strong judicial councils. Strong associations can also, for example, lead to a further politicization and fragmentation of the judiciary, as was the case in Romania in the aftermath of its judicial anti-corruption campaign.Footnote 51

3.3 Double Standards on Vetting

Despite this broad nature and seemingly all-encompassing nature of the rule of law reforms, one area of law remained outside the scope of interest of the European reformers. This area regards dealing with the past injustices of the former Communist regimes. As was the case with the previous enlargement to European countries, the problem of decommunization, lustration, and vetting of former Communist officials was not a part of the enlargement conditionality and is never mentioned in the progress reports for the WB countries.Footnote 52 Despite having 20 years to put this question on the agenda, in the WB, the E.U. focused primarily on the injustices committed during the conflicts of the 1990s, ignoring the previous authoritarian legacy from communist times altogether. Local initiatives for dealing with the past that did surface were not supported by the EU, politically or otherwise. As we have seen in the case of Romania, this has risked leaving untouched the informal part of the former security apparatus and, consequentially, undermining the overall trust in the judicial institutions in the country and their ability to tackle corruption and organized crime.Footnote 53

Instead, lustration and vetting were introduced to the reform of judicial systems. In Moldova and Albania, this had drastic consequences, uprooting parts of the judiciary involved in corrupt activities and slowing down the judiciary's work. Vetting procedures that international and local actors led in Bosnia and Herzegovina and Serbia in 2004 and 2009, respectively, have produced mixed results.Footnote 54 On the one hand, they have increased judicial accountability, but on the other, they have not limited the connections between the judiciary and politics. An adequate prosecution of the judicial actors involved in corruption remains pending except in Montenegro and North Macedonia, where the vetting did not happen – instead, the prosecutions of corruption cases have uncovered a specific role of individual judges and prosecutors in the corrupt activities.Footnote 55

3.4 Focus on Corruption

Following the 2007 enlargement, the focus of the rule of law building and promotion efforts shifted from institution building to preventing and prosecuting corruption. Nominally, corruption is on an equal footing with the other aforementioned rule of law fundamentals. But, in practice, corruption is more than a misuse of public power for private gain and a set of corresponding criminal and public law rules preventing and sanctioning such behavior. Corruption is another word for injustice and inequality experienced by the citizens of WB countries and a driver of migration. It is also a label that may justify a need for specific efforts in the rule of law or a lack of political will to engage in reforms. As such, corruption is not just a policy priority for the EU but a matter of highest concern for citizens.

All countries have created specialized anti-corruption bodies, as well as specialized judicial bodies that are to prosecute corruption. Civil society actors were trained and continue to produce monitoring reports that track progress (or lack thereof) in the fight against corruption. Responding to media capture that occurred in some countries of the region, such as Serbia, the EU, as well as other international donors, funded independent journalists that would uncover important stories about state capture.Footnote 56 All countries have elaborated anti-corruption strategies and have received significant technical assistance from the EU and other donors to prevent and prosecute corruption. In all countries, significant prosecutions of high-level political figures have occurred (often, however, ending in acquittals).

In all six WB countries, corruption remains a significant obstacle to economic development, the rule of law, and democracy. Financing of political parties and their electoral campaigns, attempts at electoral fraud, and the buying of political influence obstruct democratic processes, in particular in Bosnia and Herzegovina and Serbia. In all countries, private construction projects are often carried out thanks to the influence of state officials who turn a blind eye to money laundering concerns.Footnote 57

The EU’s approaches that aim to challenge this situation may be broadly described as having three main features. First is a direct intervention in misuse of state power, as was, for example, the case with the Priebe report in Northern Macedonia, which made a detailed set of recommendations to undo the consequences of mass surveillance and subduing judicial independence.Footnote 58 Second is an invitation to foster institutional dialogue, for example, when the same author, Judge Priebe, writing on the situation of the judiciary in Bosnia and Herzegovina, took a more cautious approach, inviting trust-building measures between then High Judicial and Prosecutorial Council president Tegeltija and his opponents.Footnote 59 Third may be described as ignorance, usually seen in the assessments of the Serbian government’s rule of law violations that are often ignored by the Commission’s reports yet mentioned by the resolutions of the European Parliament.Footnote 60

Instead of looking at the corruption threats to the rule of law through a more interdisciplinary lens, or at least to focus on specific corrupt practices, the European Commission pays particular attention to the prosecutions as evidenced by the country reports that often list outcomes of particular court cases. Although all the WB countries have prosecuted some of the highest officials and entrepreneurs for cases of grand corruption, this has not had a deterrent effect, and the prevention of corruption remains limited. The most often quoted reason for this is the lack of political will and the fear of retributions.Footnote 61 However, the inadequate penal policy, a misuse of procedural safeguards, and a lack of capacities in money laundering investigations often obstruct prosecution efforts.Footnote 62 The Commission has invested considerably in capacity building in the region, paying much less attention to how an adequate penal policy and the misuse of procedural safeguards occur. Consequently, it appears that the Commission expects personal bravery from the judges and the prosecutors alone but does not—despite its constant screening of every aspect of corruption prevention and suppression—focus on creating a legal environment in which such bravery would be rewarded with lasting results.

To summarize, the past decade has seen the EU looking at the rule of law through a rather formalistic and narrow lens. From a theoretical standpoint, it appears that the EU focuses on a narrow liberal democratic reading of the rule of law in which legal and constitutional safeguards of judicial independence and anti-corruption legislation take precedence over the actual work of these bodies.Footnote 63 The expectation is that the rule of law rests on an independent judiciary and that corruption, rightly recognized as the greatest threat to the rule of law and economic development, will be curbed because potential corrupt actors will fear judicial reprisals. Such an approach is divorced from the socioeconomic approach to the rule of law as it fails to support economic development, looking, instead, at the rule of law as an isolated variable.Footnote 64 It fails to satisfy its primary rationale – avoidance of mistakes and backsliding experienced in central and Eastern Europe after it joined the EU.Footnote 65 It doesn’t build a Europeanized judiciary that can enter into a judicial dialogue with European judicial institutions.Footnote 66 It does not and cannot, ultimately, significantly curb corruption. Instead, it risks establishing cynicism in the general population in potential cases where the prosecutions for corruption start and do not lead to a decrease in corruption but to accusations of show trials or poorly prepared indictments.

4 Socio-economic Aspects of the Rule of Law

The centrality of the rule of law reveals not the centrality of functional governmental institutions but rather the centrality of corruption. The European Commission sees corruption in its most extreme form (state capture) as a critical problem and a descriptive term for the region's countries.Footnote 67 Corruption stems from the low quality of institutions but also from poverty and lack of opportunities in the region.

A widespread fear related to increased international financial assistance is that corrupt officials will misuse the funds or that the assistance frees up the resources to be misappropriated.Footnote 68 By applying this logic, no assistance would ever be offered to societies where corruption is present. Moreover, the numbers quantified as aid usually include diverse sources: grants, loans, technical assistance funds, and the salaries for the development projects staff, creating a false impression that despite huge numbers, little is achieved on the ground.Footnote 69 The introduction of the socio–economic reforms in the newly created Growth plan for Western Balkans provides an opportunity for a game-changing policy that could change the application and promotion of the rule of law standards.

4.1 The Growth Plan

Announced in the autumn of 2023, the European Commission’s Western Balkans Growth Plan is a response to the growing criticism of the EU’s neglect of the socio–economic conditions of the WB countries. Its explicit goal is the economic integration of the WB with the EU. It offers a 6 billion Euro package, which consists of loans and grants and is, in per capita terms, equal to what the WB countries would receive from the Union’s cohesion funds if they were an EU member state.Footnote 70 A precondition for the usage of these funds that are to be reimbursed via Reform and Growth Facility for the Western Balkans is the alignment of the economic policies in the region for full integration of the seven areas marked for integration in the common market: Free movement of goods; Free movement of services and workers; Access to the Single Euro Payments Area; Facilitation of Road transport; Integration and de-carbonization of Energy markets; Digital Single Market; Integration into industrial supply chains. This will be achieved through the redefinition of the economic reform priorities set out in the economic reform programs that the WB countries have submitted to the European Commission on a biannual basis since 2014.Footnote 71 All of this should allow the economies in the region to expand by 10% and achieve economic convergence with the Union.

The Growth Plan does not mention specific interventions related to the rule of law. Instead, a commitment is made towards the disbursement of funds as conditioned upon the implementation of the rule of law reforms referred to as the fundamentals. The plan mentions socio–economic reforms as a critical condition for the disbursement of funds.Footnote 72 This reference is, however, puzzling; none of the reforms mentioned are socio–economic reforms per se. In addition, none of the reforms is to be carried out in their whole meaning and capacity. For example, the free movement of workers does not mean that the reforms undertaken by the WB countries would allow all of the workers coming from these countries to seek employment in the EU; similarly, the access to the single euro payments area does not mean the introduction of Euro as official currencyFootnote 73 but instead steps in that direction.

The fact that access to finance remains a crucial issue for the WB countries is neglected in the growth plan. Instead, the focus is on prioritizing the seven economic areas of integration pre-defined by the European Union, the funds to be made available in connection to that, and the rule of law reforms. The connection between the rule of law conditionality and access to these funds thus remains unclear. The Commission retains the right to withhold the funds regardless of the success of the rule of law initiatives or the integration into the seven areas. Finally, the claim that the funds make the EU spending equal to that in the member states is false; an increase of 6 billion in funding does not equate to total cohesion funds spending per capita.Footnote 74 Thus, using such a vague text gives the Commission great discretion in judging the progress, and the Growth Plan appears as neither an economic investment tool nor a carrot to reward the rule of law reformers.

4.2 Socio-economic Reforms

This move, while certainly a game-changer as it places the economy and not the rule of law and the fundamentals to the forefront, is not unique. The EU’s policies towards Bosnia, Herzegovina, and Kosovo were, in particular, in 2014 and 2018, refocused around the so-called “Reform Agenda,” a set of structural economic reforms to create a better financial and business environment. However, this refocusing did not help the rule of law; most key problems worsened during this period.Footnote 75 Control of strategic sectors of the economy, especially the state-owned enterprises, remained in the hands of the corrupt nationalist elite. To escape repeating the mistakes and deliver on the rule of law front, there are essential measures to be undertaken and focus on several sectors that have remained neglected.

Socio–economic reforms were to be an integral part of the enlargement, but in 2014, a political decision was made to call the national economic strategy documents that the countries submit to the EU Economic Reform Programmes after the names used in the EU.Footnote 76 As such, the education, culture, healthcare, environmental protection, and digitalization policy areas are significantly neglected in the entire enlargement process. The EU’s country reports reference them, but they never played a prominent role during the accession; it is unheard of that the progress of the country on the path of European integration is stalled because of its poor performance in education, social policies, or healthcare. And yet, it is in these areas that the most significant potential for corruption and the undermining of the electoral process exists. This is because one of the significant problems alleviating corruption is so-called “election-driven informality.”Footnote 77 This phenomenon represents a set of biases and preferences demonstrated by the governments that buy votes and allegiance through non-fiscal means. This clientelistic behavior undermines transparency and alleviates corruption with the intent of mobilizing electoral support by the disenfranchised and people experiencing poverty.

The so-called “degree mills,” private universities that produce thousands of diplomas often of dubious quality, remain a plague of the Western Balkans systems of higher education. Domestic investigators in all countries have uncovered the schemes, demonstrating the widespread scale of the fraud.Footnote 78 Education is one of the variables strongly correlated with corruption; the higher the education, the greater the probability that the voters will be willing to monitor the behavior of political actors.Footnote 79 Loose standards in this area hurt the ability of the states to prevent corruption in the long run. The European Union should demand much stricter standards for the accreditation and operation of these institutions. More than just curbing corruption, such an action would be in its own interest as many of the workers with false diplomas eventually end up working in the Union, especially in professions such as nursing where deficits of the EU’s own workforce demand the inclusion of foreign workers.Footnote 80

In the healthcare sector, one of the sectors where corruption is most rampant, procurement of goods is not made in accordance with the law but rather by the political campaigns fought in battleground municipalities. Thus, the fundamental human right of access to healthcare is being contested for political purposes, creating a problem for ordinary citizens in expressing their political will.Footnote 81 Although civil society organizations have been awarded projects to increase awareness about this issue, legal action against it is progressing slowly. The European Union could urge the six Western Balkan candidate countries to address this specific form of corruption and conduct Eurobarometer-style surveys to track progress in this area. This would aid in monitoring the reduction of this widespread form of corruption.

Environmental protection remains inadequate, leaving the Western Balkans as an area that is heavily polluted and a heavy polluter of air in other parts of Europe.Footnote 82 The abundance of cheap coal has allowed all Western Balkans countries except Albania affordable energy prices and high carbonization. Despite commitments to decarbonization made by all states, the revenues and political gains from the carbon-intense energy sector remain a vehicle for foreign investments that risk corruption. The social component of the existing carbonization also lies in the importance of the coalmines as employers, especially in some areas of Bosnia, Herzegovina, and Serbia, where decarbonization needs to be carried out. So far, the EU has successfully blocked some of these investments in Bosnia and Herzegovina, while European-funded civil society organizations have questioned them in Montenegro and Serbia. However, funds and capacities for the transposition of EU acquis in the domain of environmental protection remain inadequate, and a just energy transition remains distant. With it, attraction to Chinese and Russian capital involved in the reconstruction and modernization of the thermal power plants remains.Footnote 83

The digitalization of public administration is also an area of policy where gains that can be made would protect the integrity of the democratic society and, consequentially, the rule of law. Firstly, digitalization is essential to prevent or at least limit electoral fraud. Existing electoral rolls, particularly in Serbia and Bosnia and Herzegovina, remain at risk of misuse due to a lack of electoral integrity that digitalization could secure. Certainly, opposite examples, such as the lack of trust in the digitally based voting processes, are present, for instance, in Brazil and the United States.Footnote 84 But, a commitment to protecting personal data, which is crucial also as the countries are obliged to align themselves with the General Data Protection Regulation, may alleviate some of the biggest worries, thus overriding the potential claims of election rigging. Second, digitalization may prevent some particular elements of corruption, for example, avoiding the use of procedures prescribed for building permits, and a lack of transparency concerning their issuance remains problematic as it allows favoritism. More than just a nuisance for spatial planners, the lack of transparency regarding building permits lies at the heart of corruption, money laundering, and the election of corrupt local leaders.Footnote 85 Currenty, the WB countries have acceded to the digital connectivity programmes planned by the EU. Yet, this acccession merely facilitates access to funding earmarked towards digitalization without a more specific conditionality that would establish control over the.

Little specific actions have tackled the problem of poverty. Only in 2022, in the aftermath of the Russian aggression against Ukraine, which brought the energy crisis to Europe, did the Union take concrete measures to help part of the population alleviate heating costs. However, access to this help is often limited to the poorest part of the population, which is often, especially in the case of the Roma minority population, at risk of being excluded and marginalized if making any income at all.Footnote 86 Instead, the most popular and effective anti-poverty measure was the gradual opening of the EU labor market to “suck up” all the excess workforce created as a side-product of the unsuccessful transition in the Western Balkans. This did not come without consequences, as the mass migration created a problem of workforce availability and a loss of constituency supporting democratic changes. It took more than ten years for the middle class, previously devastated by war, economic migration, and neoliberal reforms, to re-emerge.Footnote 87 Still, the pressures against the impoverished parts of the population regarding their mobilization to vote for specific political options remain present.Footnote 88

4.3 Addressing Transparency Concerns

Transparency represents a cornerstone of the rule of law and is one of the important achievements of good governance efforts made in the last decades of its promotion.Footnote 89 Yet, the European Union that preaches and promotes transparency for the WB is surprisingly non-transparent regarding its efforts in the WB. The funds allocated for the promotion of the rule of law are rarely evaluated, and when they are, there is little disaggregation of data revealing funding for EU-based companies that carry out much of the consultancy work.Footnote 90 The EU’s economic and investment plan for the Western Balkans published in 2020 conflates aid (grants) and loans through investment vehicles such as the European Bank for Reconstruction and Development (EBRD). The EBRD has made progress in transparently presenting the loans it gives to the countries but in North Macedonia and Bosnia still provides most of its borrowing to the government sectorFootnote 91—a surprising strategy given how much considerations is placed on government corruption. Neither the Growth Plan nor any of the remaining strategic documents for the Western Balkans have any planned evaluation or strict monitoring and post-implementation assessment.Footnote 92 This significantly prevents the development of a well-grounded analysis of their impact and the analysis of their structure with regard to specific interventions provided.

A lack of transparency is present regarding the methodology and development of the country reports that are the backbone of the EU’s monitoring and reporting on the WB states. Certain countries are judged more harshly than others, pointing not so much towards bias but rather arbitrariness.Footnote 93 Transparency at the level used for preparing the EU Rule of Law reports may serve as a guiding light towards improving this problem. The questionnaires used for the assessment of the national legal and judicial systems are fully available, and each civil society organization participating is allocated space to express their views in a safe and non-threatening manner.Footnote 94 Such a degree of transparency currently does not exist with country reports, reports that concern the corruption statistics, and the previously mentioned economic plans.

4.4 Towards a More Holistic Approach

The focus on formal aspects of the rule of law detailed in the action plans, benchmarks, civil society monitoring, and the future reporting mechanisms of the EU Rule of Law Report on the one hand and the absolute inadequacy of the current economic relationship between the WB and the EU lead us to conclude that the EU has neglected the socio-economic foundations of the rule of law. Their further erosion represents a grave threat to democracy and the defense of the formal criteria of the rule of law to which most of the EU’s efforts have been focused.

And yet, recognizing that poverty, environmental politics, education, digitalization and healthcare impact the socio – economic foundations of the rule of law is hardly controversial. What should have been considered controversial was the endless pre-accession process which, as Kochenov and Janse observed merely saws distrust without firmly entrenching the rule of law.Footnote 95 By stopping to treat the rule of law as a narrow and formal independent varible which is the current aprroach that the Commission takes is to return it meaning within the context of the enlargement process. that determines the outcomes of the European integration project.

Despite prevailing evidence that the judicial means of fighting corruption are not enough for success in curbing it, the focus on combatting it through judicial means remains, together with efforts to secure judical independence a cornerstone of the EU's efforts to build the rule of law. Experience from other democratic countries tells us that focusing on fighting corruption through judicial means does not necessarily yield success. Countries that have conducted vast judicial anti-corruption campaigns have made gains in curbing corruption; however, to what extent these gains were made thanks to the prosecutions and not through other societal events remains contentious in literature.Footnote 96 In the existing conditions, expecting such a campaign before the EU accession is not very likely. In turn, that could lead to the EU’s pursuit for accession appear untrustworthy and likely to fall prey to domestic critics who will quickly claim that there is an absence of rule of law in the candidate states. That could launch a vicious circle of ever stronger rule of law standards imposed but detached from socio – economic reality.

Finally, the success of the enlargement process relies on a need to recognize that the rule of law entrechment is not a linear process without backsliding. The triumphalism with which the 2004 “big bang” enlargement was celebrated overshadowed the fact that the legal and political transition of the 1990s was far from complete and perfect. The realization this was so needs not only to warn us of a need for more stringent standards but also of a need for nuanced structural approaches.

5 Conclusion

In this paper, I have offered a possibility for a more balanced approach to the promotion and creation of the rule of law standards. I have looked at the available economic development funding, finding that it is not adequately tied to the rule of law conditionality or the purpose of economic development and that, ultimately, its purpose is unclear. I have suggested targeted interventions in digitalization, environmental politics, education, healthcare, and poverty reduction. These interventions would tackle election-driven informality that underlines the democratic crisis of the Western Balkans. These interventions are not alternative but complementary to the existing EU’s interventions targeting the judicial system.

We cannot be sure if the EU will turn a blind eye to the need to reshape the rule of law commitments that it expects of the candidate states. It is not impossible that it proceeds towards an enlargement, a two-tier membership or a regime similar to the relationship it had with the EEA during the 1990s or today without ssubstantially addressingthe isssues raised herein. But, a more inclusive view of the rule of law that acknowledges its interplay with other good governance reforms would reaffirm its centrality and strengthen any of these approaches. Can these criteria be met by the potential candidate states in the Western Balkans? We will not know that before we try to apply. There is little doubt that the progress so far has been absolutely unsatisfactory.