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The Rule of Law in central and south-eastern Europe: state of health and prospects

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27 May 2021
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Eurac Research Blogs cooperating with Lo Spiegone - © Lo Spiegone Matilde Contessi

Having reached the conclusion of our project on the rule of law in central and south-eastern Europe, it is time to draw an overview of the various countries analyzed on the basis of two main indicators (the independence of the judiciary and the freedom of the media) and to turn the look to the future, especially in light of the new Rule of Law Regulation.

Between incentives and paradoxes

The position of Brussels with regard to the protection of the rule of law can be defined as a paradox, as it constitutes a conditionality for entering the EU, but not for remaining there. In fact, the EU enlargement legal framework envisages respect for the rule of law as a condition (Article 2 TEU and Copenhagen Criteria), but at the same time, the procedures available to the institutions to defend the Union from possible violations by some Member States, are characterized by general prudence and a certain complexity. The countries of central and south-eastern Europe taken into consideration during the project, present various critical issues concerning the independence of the judicial system and the freedom of the media, the two indicators chosen to analyze the state of health of the rule of law.

Member States

In Greece, Slovenia, and Croatia, three countries that joined the EU at very different times, the situation is almost comparable to European standards and far better than in other central and south-eastern European countries. Nonetheless, trust in the judiciary remains below the European average and over the years there have been episodes of violence against journalists, which have jeopardized independent media.

Precisely for this reason Romania and Bulgaria, which joined at a later stage compared to the other Member States of the 2004 big-bang enlargement, saw the adoption of specific mechanisms to monitor the progress of reforms to reach European benchmarks, the so-called Cooperation and Verification Mechanism (CVM). Yet, the protection of the rule of law in the two countries remains critical and excessively dependent on the will of national governments, as the strongest incentive available to Brussels, i.e. EU membership, no longer remains once the Union’s been joined.

Finally, Poland and Hungary are sadly known for having passed from enfants prodiges to enfants terribles, as they are the two Member States that have committed the most serious violations of the rule of law, more or less in accordance with their respective constitutional norms, especially regarding the independence of the courts.

Candidate and potential candidate countries

Turning instead to the states currently involved in the process of European integration, failure to respect the rule of law results in the impossibility of joining the EU. The three countries further along the path (Albania, Montenegro, and North Macedonia) continue to present critical issues concerning the independence of the judiciary and the freedom of information, as also reported by the latest reports on the progress of candidate / potential candidate countries in the European integration path (country progress report). In these cases, the incentive for membership is still very strong, but it clashes with the actions of governments, not always interested in going in the direction of European standards.

In the countries further back on the path (Serbia, Kosovo, and Bosnia-Herzegovina), despite the slow progress from the legislative point of view, the high levels of corruption and the interference of politics in the judicial system and the media are still such as to undermine the rule of law, further alienating the prospect of EU membership.

This overview, therefore, seems to confirm the paradox. All groups of countries have serious difficulties in complying with the rule of law, however the only countries deprived of the benefits of WU membership are the ones that have not yet obtained such status.

The role of the EU: between Rule of Law Conditionality and inertia

Currently, the actions of the European Union regarding the protection of the rule of law, have been limited to monitoring, with the country progress reports for candidate countries or potential candidates, and now with the Rule of Law Reports for the Member States, as provided by the Rule of Law Mechanism. Yet, in practice, the Union has remained virtually inert, as demonstrated by the absence of promotion activities on Western Balkan territories or institutions, left to NGOs and civil society.

Something seemed to change with the adoption of the so-called Rule of Law Regulation, which provides for a Rule of Law Conditionality for access to European funds. In force since January 1, 2021, the mechanism binds EU funds to respect for the rule of law, resulting in their suspension or curtailment if the Commission establishes a violation of the rule of law. Following the Commission's proposal to activate the mechanism, the Council would have one month (or three months in exceptional cases) to vote on this measure, possibly approving it by qualified majority. The Regulation provides that the measures against the Member State must be concluded within a maximum of 7-9 months from the initial date of violation of the rule of law.

Some considered it a necessary instrument and a substantial success, especially as it would apply not only to "direct" violations of the rule of law in the use of EU funds (such as in the case of fraud or corruption) but also to systemic violations of the principles of the rule of law (such as the independence of the judicial system) if they affect the management of said funds.

Others, on the other hand, have criticized it, as once again the Union would have failed to play an effective constitutional role in protecting the values on which it was founded, turning instead to its own economic-financial interests and the supply of its funds. This implies that breaking European values is not a sufficient motivation to intervene against the perpetrators, but that actual economic damage must be verified, quantifiable, and only then can it be considered “tangible”. Countries like Hungary and Poland, as the Member States potentially most at risk, have long vetoed such a Regulation. The main objection is based on the fact that the supply of funds should depend on the virtuosity of their use, rather than on compliance with the rule of law.

The interpretative declaration of the European Council made have made a compromise possible, overcoming the institutional impasse, but it still has in itself the potential to empty the effectiveness of the Regulation and make it yet another unusable procedure. Once again, although the adoption of the latter instrument can be seen as a step towards the "right direction", it is necessary to wait to assess how effectively the EU will be able to defend the rule of law internally and to promote it in the countries that are on the path of accession.

What is certain is that a radical change in Brussels' position regarding the defense of the founding values is not possible or imaginable with the current institutional set-up of the Union, whose revision is bound by vetoes and majorities. Educating on the importance of the principles of the rule of law, could be a first step in raising public awareness and putting pressure on governments. Only in this way could a future European political condition be created in favor of a revision of the Treaties that would give the Brussels institutions more room for action.

References

Alemanno, Alberto, and Merijn Chamon. “To Save the Rule of Law you Must Apparently Break It” Verfassungsblog, 11/12/2020.

Dimitrovs, Aleksejs. “Op-Ed: Rule of law-conditionality as interpreted by EU leaders” EULawLive, 11/12/2020.

Dimitrovs, Aleksejs. “Analysis:" Rule of law conditionality for the EU budget: agreement is there” EULawLive, 05/11/2020.

Dimitrovs, Aleksejs, and Hubertus Droste. “Conditionality Mechanism: What's In It?” Verfassungsblog, 30/12/2020.

EULawLive. “European Council Conclusions on how rule of law conditionality linked to the EU budget should be applied”, 11/12/2020.

Halmai, Gabor. “The Possibility and Desirability of Rule of Law Conditionality” Hague Journal on the Rule Law, Vol. 11, 2019, pp. 171–188.

EU Parliament Press Release - “Parliament approves the“ rule of law conditionality ”for access to EU funds” 16/12/2020.

European Council - “Conclusions adopted by the European Council” 11/12/2020.

European Parliament and Council - “Regulation of the European Parliament and of the Council on a General Regime of Conditionality for the Protection of the Union Budget” 16/12/2020.

Fiscaro, Marco. “Rule of Law Conditionality in EU Funds: The Value of Money in the Crisis of European Values” European Papers, Vol. 4, No 3, 2019, pp. 695-722.

Kirst, Niels. "Rule of Law Conditionality: The Long-awaited Step Towards a Solution of the Rule of Law Crisis in the European Union?” European Papers, vol. 6, no. 1, 2021, pp. 101-110.

Kochenov, Dimitry, and Aleksejs Dimitrovs. “Solving the Copenhagen Dilemma” Verfassungsblog, 28/04/2021.

Morijn, John. “Op-Ed: The July 2020 Special European Council, the EU budget (s) and the rule of law: Reading the European Council Conclusions in their legal and policy context” EULawLive, 23/07/2020.

Scheppele, Kim Lane, Laurent Pech, and Sébastien Platon. “Compromising the Rule of Law while Compromising on the Rule of Law” Verfassungsblog, 13/12/2020.

Spano, Robert. “The Rule of Law as the Lodestar of the European Convention on Human Rights: The Strasbourg Court and the Independence of the Judiciary” European Law Journal, vol. 26, no. 3-4 (2020): 1-17.

This article is part of EUreka!'s collaboration with Lo Spiegone.

Lidia Bonifati - Lo Spiegone

Lidia Bonifati is currently a PhD researcher in Law at the University of Bologna and the University of Antwerp. Her research interests include constitutional design for divided societies, minority rights, federalism and asymmetries in comparative constitutional law. She is also Secretary of the online newspaper Lo Spiegone, and a contributor for the “Europe” section. She left her heart in Bosnia, while walking down the stone-streets of Sarajevo.

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