Over the past fourteen years, EU policy makers have placed a growing emphasis on the rule of law and particularly the reform of the judiciary in the transition countries of the Western Balkans (WB) region. The EU’s strategy of promoting rule of law in the WB relies on the demand to comply with certain political criteria, in combination with the supply of institutional ties, technical, and economic assistance. The accession process generates unique, broad-based, and long-term support for the establishment of the rule of law in the candidate states. The most visible instrument for the promotion of rule of law has been the conditional offer of full membership in the EU.
A number of empirical studies consider the clarity and credibility of the EU demands to be important factors in increasing the likelihood of the effectiveness of the transfer of EU norms to the candidate countries . By clarity it is understood that the candidates need to know precisely what they are expected to do, if they decide to comply with the EU conditions. Particular traps for uncertainty may be found in the ever growing body of EU law, or absence of a single EU model in many policy areas, as is the case with the rule of law.
Additionally, the benchmarks for the negotiations of Accession Chapters 23 and 24, unlike any of the other Chapters, confer more on the political or constitutional principles than on the ‘hard’ Acquis. Finally, the European Commission often includes additional benchmarks once the negotiations have already opened. This all adds to the lack of clarity in the EU’s rule of law demands, and consequently affects the effectiveness in the rule transfer.
Therefore, the EU should, in future negotiations, employ a new approach based on four principles. First, the EU needs to have better understanding of the situation of the judiciary system in each candidate country ahead of the accession process (not only during the negotiations). In particular, to bear in mind the legacies of the past that has influenced the independence of each judiciary system. The importance of these historical legacies is elaborated by Pop Eleches, who concludes that they “need to be taken seriously not only because of their own intrinsic importance in post-communist democratization but also because our understanding of alternative explanations has to be embedded in the complicated reality of the region’s intertwined historical legacies.” While it remains elusive to accurately predict which legacies matter most, it can be concluded that “fundamental cultural predispositions play an important role in democratization and, possibly, shape the relationship between [candidate] countries and the EU as well”. Taking into account legacies of the past, and understanding the current situation, would allow the Commission to prepare specific, country-tailored strategies which effectively export the rule of law criteria.
Second, the use of benchmarks regarding independence, responsibility, efficiency, and effectiveness of the judiciary system, in the accession negotiations, serves as an important catalyst for rule of law reform. Nevertheless, it is unclear what, specifically, is expected under each of these benchmarks. This is why I deem it important that each of these benchmarks needs to be elaborated in more detail by the Commission. By elaboration, I feel that each of these benchmarks should be clear and predictable to the domestic actors in each candidate country, ahead of the accession process. Otherwise, these reforms are driven by ad hoc strategies prepared by each country, with the potential danger that the effects of the progress might be influenced with the change of the ruling elite, as witnessed in Serbia in 2012. Here, the newly elected government pledged to re-assess judicial reform, thus delaying the end result.
Third, the benchmarks should be elaborated in a fashion that the results of the reform could be measured by behavioral changes in the different phases of the negotiation process. Namely, by completing the tasks conditioned by the EU, the country would gradually progress through the EU membership negotiations, which ,in effect, would increase the credibility of the EU’s promise.
Finally, the EU should set up an intermediary system of rewards upon the achieved interim set of goals. The recent visa liberalization in the region serves as a good example for the mechanics of EU ‘soft pressure.’ Three important lessons could be learned from the visa liberalization process: (1) the EU should motivate state institutions and civil sectors to take part in the reform process; (2) the EU needs to set out an explicit and detailed conditions map; and (3) finally, the EU has to create a comprehensive implementation strategy, with a measurable interim system of goals and rewards, so the domestic actors have a clear, immediate, and rationalist-based motivation to adhere to the rule of law conditionality.