Abstract
European integration is legal integration. Rule of Law is an essential part of the DNA of the European Union, which is itself a “community based upon law” (ECJ, Les Verts). Judges in the Member States are not only an integral part of their own judicial system, but also of the integrated European legal order. The Rule of Law principle is recognized as a founding value in Article 2 TEU, after its outward projection had long been part of the Copenhagen criteria for EU accession. The experiences with enlargement in 2004 and 2007 as well as the creation of the Space of Freedom, Security and Justice have led to major emphasis on the Rule of Law in the enlargement process, and on the related chapters 23 and 24, before and during accession negotiations. According to the new cluster-methodology applied by the European Commission since 2020, the Rule of Law has become the real litmus test in the accession process. This paper shall assess judicial reforms in the Western Balkans over the last 20 years and the EU’s financial and technical assistance, with a focus on the difficulties created by state capture and by the continuity of a formalistic legal culture which is a socialist legacy. The central question is whether and to which extent Rule of Law can be sustainably created from the outside, by external actors and assistance.
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Notes
- 1.
The “Western Balkans” is a geographic region in Southeastern Europe, but also political neologism introduced by the EU to refer to the countries of former Yugoslavia, excluding Slovenia and adding Albania. After the accession of Croatia in 2013, also “WB6” is used to denote the area which thus includes: Albania, Bosnia and Herzegovina, Montenegro, North Macedonia, Serbia and Kosovo (which has declared its independence, unilaterally, in 2008, and is recognized by a large number of States, but not yet by Serbia and by five Member States of the European Union).
- 2.
See the OHR website (https://www.ohr.int/cat/hrs-decisions/decisions-in-the-field-of-judicial-reform/) with an impressive list of decision in the field of judicial reform, which include the imposition of legislation, the establishment of institutions and the appointment of international judges and prosecutors. In 2003, a completely new criminal procedure has been introduced at State and Entity levels in Bosnia and Herzegovina.
- 3.
The reactions included monitoring as well as political, legal and financial responses by the European Commissions; see e.g. Kochenov, Pech 2015, and Pech, Bárd 2022.
- 4.
The Treaty on European Union sets out the conditions (Article 49) and principles (Article 6(1)) to which any country wishing to become a member of the European Union (EU) must conform. The accession criteria were established by the Copenhagen European Council in 1993 and strengthened by the Madrid European Council in 1995.
- 5.
- 6.
EU Charter of Fundamental Rights (http://www.europarl.europa.eu/charter/pdf/text_en.pdf).
- 7.
European Commission, A new EU Framework to strengthen the Rule of Law, COM(2014) 158 final/2, p. 4.
- 8.
Ibid., p. 4.
- 9.
- 10.
Among the European Judicial Networks, particular influentially are CEPEJ, i.e. the European Commission for the Efficiency of Justice (https://www.coe.int/en/web/cepej) and the ENCJ, i.e. the European Network for Councils of the Judiciary (https://www.encj.eu/). Both publish principles on their websites.
- 11.
An extreme example is the name change from “former Yugoslav Republic of Macedonia (fYROM)”, under the Prespa agreement, signed with Greece on 17 June 2018, to the Republic of North Macedonia; it was voted by the Parliament in Skopje on 12 January 2019. Resolving conflicts with neighbouring states before accession is part of the EU’s conditionality, but has not always been respected, e.g. in the case of Cyprus.
- 12.
Macedonian Prime Minister Zoran Zaev, who had resolved the three-decade-old dispute with Greece, brought North Macedonia to the brink of NATO membership and cleared the way for starting accession negotiations to join the European Union achieved a narrow victory in the elections in July 2020, but resigned after his party lost the local elections on 31 October 2021.
- 13.
An illustrative example is police reform in Bosnia and Herzegovina which was a condition imposed by the High Representative (Ashdown) taken over by the European Commission, despite the monopoly for public security lying with Member States and the diversity in the organization of police forces throughout the EU. Its non-implementation led to years of delay in the conclusion of the Stabilization and Association Agreement with Bosnia and Herzegovina (Palermo and Woelk 2008, 217–223). Resistance in Republika Srpska was strong due to the fear that its own powers regarding police would be emptied and transferred to the State-level.
- 14.
- 15.
The proliferation of private “Law Faculties” is remarkable; on the significant growth of private higher education providers in the Western Balkans, e.g. Klemenčič and P. Zgaga 2014.
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Woelk, J. (2024). Conditional or Sustainable? The Rule of Law and Judiciary Reforms in the Western Balkans. In: Antoniolli, L., Ruzza, C. (eds) The Rule of Law in the EU. Springer, Cham. https://doi.org/10.1007/978-3-031-55322-6_14
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