EU Enlargement and European Integration: Challenges and Perspectives E-Book

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Veröffentlichungsjahr: 2024

Beschreibung

At the beginning of 2022, a major EU enlargement seemed unlikely in the near future. However, Russia’s invasion of Ukraine in February 2022 fundamentally shifted the European Commission’s stance. Ukraine and Moldova were granted EU candidate status, and Georgia was added to the list of potential candidates. This raises questions about the future of the European Neighbourhood Policy. While EU enlargement has gained momentum, certain areas of integration have stalled, such as the expansion of the eurozone and the Schengen area - despite Croatia’s recent accession, Romania and Bulgaria remain in waiting. Meanwhile, new formats of continental cooperation, such as the European Political Community, launched in 2022, raise the question of whether more differentiated integration models will emerge. Additionally, the war in Ukraine has exacerbated other crises, including inflation, the energy crisis, food shortages in the Global South, and unprecedented refugee movements - not only from Ukraine but also other regions. Against this backdrop, the 14th Network Europe Conference examined EU enlargement prospects and the challenges facing European integration in times of global crisis. This publication features contributions from Fatlum Ademi, Antonina Bakardjieva Engelbrekt, Melita Carević, Jelena Ceranic Perisic, Viorel Cibotaru, Waltraud Hakenberg, Garine Hovsepian, Andreas Kellerhals, Lee McGowan, Henri Vogt and Ralph Weber. Network Europe was founded in 2003 by the Europa Institute at the University of Zurich with support from the Swiss government. It serves as a forum for scholarly exchange on legal and political aspects of European integration, bringing together researchers from across Europe.

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EU Enlargement and European Integration: Challenges and Perspectives Copyright © by Andreas Kellerhals; Tobias Baumgartner; and Fatlum Ademi is licensed under a Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License, except where otherwise noted.

© 2024 – CC BY-NC-ND (Book), CC-BY-SA (Text)

Editors: Prof. Dr. Andreas Kellerhals, Dr. Tobias Baumgartner, Fatlum Ademi – Europa Institut an der Universität ZürichPublisher: EIZ Publishing (https://eizpublishing.ch)Layout & Production: buch & netz (https://buchundnetz.com)ISBN:978-3-03805-722-2 (Print – Softcover)978-3-03805-723-9 (PDF)978-3-03805-724-6 (ePub)DOI: https://doi.org/10.36862/eiz-722Version: 1.03 – 20240826

This work is available in print and various digital formats in OpenAccess. Additional information is available at: https://eizpublishing.ch/publikationen/eu-enlargement-and-european-integration-​challenges-and-perspectives/.

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Preface

This publication comprises the contributions presented at the 14th Network Europe Conference held in Stockholm/Sweden, in September 2023. The conference addressed various challenges for the European integration process in light of current global crises, as well as aspects of the EU enlargement perspectives.

As late as the beginning of 2022, a major round of enlargement of the European Union seemed unlikely in the foreseeable future. However, Russia’s unprecedented invasion of Ukraine in February 2022 has fundamentally changed the position of the European Union. Ukraine and Moldova were granted the status of candidates for EU membership, and Georgia was added to the list of potential EU candidates. Consequently, the purpose and future of the European Neighbourhood Policy will need to be clarified and redefined.

In view of this situation, the contributions in this publication address various imperative topics. Talks have emerged about accelerating the integration process for Western Balkan countries, while neighboring countries of the EU have been offered accession perspectives. In Armenia, the question of rapprochement with the EU has been raised following the exodus from Nagorno-Karabakh, as Russia failed to act as a protective power. Switzerland has engaged in crucial new negotiations to secure and strengthen its bilateral path with the EU. Furthermore, the external relations of the EU with Russia and China as opposing global players were examined. Finally, different future perspectives for the EU and alternative options in light of the upcoming challenges were presented.

We would like to thank the participants for their contributions as well as express our gratitude to the Co-Hosts of the conference from the University of Stockholm, Prof. Dr. Björn Lundqvist and Prof. Dr. Antonina Bakardjieva Engelbrekt.

Zurich, 23 July 2024 Prof. Dr. Andreas Kellerhals Dr. Tobias Baumgartner MLaw Fatlum Ademi

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Authors/Editors

Ademi Fatlum, MLaw, Europe Institute at the University of Zurich, Switzerland

Bakardjieva Engelbrekt Antonina, Prof. Dr., Professor of European Law, Stockholm University, Sweden

Baumgartner Tobias, Dr., LL.M., Deputy Director, Europa Institute at the University of Zurich, Switzerland

Carević Melita, Prof. Dr., Professor at the University of Zagreb, Croatia

Ceranic Perisic Jelena, Prof. Dr., Director of the Institute for Comparative Law of Belgrade, Serbia

Cibotaru Viorel, Ambassador of the Republic of Moldova to the Kingdom of Belgium and Grand Duchy of Luxembourg, Head of Mission to NATO, Belgium, Former Director of the European Institute for Political Studies in Moldova, Moldova

Hakenberg Waltraud, Prof. Dr. (†), Former Registrar of the EU Civil Service Tribunal, Honorary professor at the Europa-Insitut of the University of Saarland, Germany

Hovsepian Garine, Prof., Dean at the Faculty of Law, French University of Armenia, Armenia

Kellerhals Andreas, Prof. Dr., Director at the Europa Institute at the University of Zurich, Switzerland

McGowan Lee, Prof. Dr., Professor at the School of History, Anthropology, Philosophy and Politics, Queen’s University Belfast, Norther Ireland

Vogt Henri, Prof. Dr. Phil., Professor of Political Science, University of Turku, Finland

Weber Ralph, Prof. Dr., Associate Professor for European Global Studies, Europe Institute at the University of Basel, Switzerland

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Table of Contents

The Rule of Law: a major challenge for European integration and EU enlargement?

Antonina Bakardjieva Engelbrekt

The UK’s Post Brexit Relationship with the European Union: A Case of Orbiting Europeanisation rather than De-Europeanisation?

Lee McGowan

Western Balkans/EU: current developments

Jelena Ceranic Perisic

Relations Armenia/EU: Chances and challenges with CEPA

Garine Hovsepian

EU-Switzerland – do bilateral agreements have a future?

Andreas Kellerhals, Fatlum Ademi

Incredible …but achievable – How Moldova is running for EU accession process

Viorel Cibotaru

The European Green Deal and the Path to Climate Neutrality – Chances and Challenges for the EU as a Green Leader

Melita Carević

Relations EU-Russia: a paradigm shift

Henri Vogt

Relations EU-China: economic interests vs. human rights

Ralph Weber

Future Scenarios for the EU 2050

Waltraud Hakenberg

The Rule of Law: a major challenge for European integration and EU enlargement?[1]

Antonina Bakardjieva Engelbrekt

Table of Contents

IntroductionThe Rule of Law in the EU legal framework prior to the Eastward EnlargementRule of Law in the Original TreatiesThe Rule of Law in the Court’s JurisprudenceReinforcement of the EU Rule of Law Framework in Anticipation of the Eastward EnlargementThe Entry of the Rule of Law into the TreatiesThe Crucial Role of the Copenhagen CriteriaIncreased Formalisation of the Principle of the Rule of Law in the TreatiesConsolidating Fundamental Rights Protection in the UnionScreening the Candidate Countries for Rule of Law ComplianceGeneral Approach: The Rise of Rule of Law ConditionalityThe Toolbox of Conditionality: Regular Country reports and Accession PartnershipsMethodology of AssessmentThe Rule of Law as a Moving TargetThe Rule of Law as Part of the Political Conditions for MembershipThe Rule of Law as Part of Administrative and Judicial CapacityFrom Political Condition to Binding Rule of Law AcquisExternal Sources for Rule of Law AssessmentWhat Lessons from Rule of Law Conditionality in the course of Eastward Enlargement?Quality of EU rulesQuality of rule transfer‘Normative harmonisation’Consistency and equal treatmentFocus on Formal Laws and InstitutionsQuality of rule-making in the recipient statesTurning Conditionality and Rule of Law Oversight Inwards to Curb Rule of Law Backsliding in EU Member StatesProceduralisation and Experimentalist governance in EU Rule of Law PolicyPost-accession inward-bound conditionalityEnhanced Rule of Law Conceptualisation and SystematisationJudicialisation as a Bridge Between Pre-accession and Post-accession EU Rule of Law PolicyThe relationship between inward-bound and outward-bound EU Rule of Law policyConcluding Reflections

Introduction

There is hardly a question of European Union law and policy that has received more extensive treatment and provoked more heated debates during the last decade, than the question of the waning commitment to the rule of law in individual EU Member States and the ensuing rule of law crisis in the Union.[2] The acute attention devoted to this crisis in both policy documents and academic literature is not surprising. It is prompted by a widely shared understanding of the centrality of the rule of law for the European project and growing concerns in the face of rapid backsliding and open neglect for rule of law standards in certain EU countries. Although ‘rule of law crisis’ has become the established term, in fact the crisis is broader than that because disregard for the rule of law inevitably undermines democratic institutions and the quality of democracy more generally. Furthermore, while the crisis is triggered by rule of law ruptures in individual Member States, it affects deeply the Union as a whole, since it puts into question EU’s ability to uphold its fundamental values.[3]

To be sure, the notion of ‘crisis’ is so frequently used in the context of European integration that it seems to have suffered some devaluation and even trivialisation. The number and variation of crises that the Union is bemoaned to be facing and grappling with is ever expanding: financial crisis, migration crisis, Covid19 crisis, energy crisis, ecological crisis, security crisis, to name but a few. Thus, the concept of crisis may no longer project the sense of urgency vested in its original meaning. The ‘normalisation’ of the state of crisis is further enhanced by the broadly held conviction that the Union is typically not weakened, but rather strengthened by crises.[4]

Yet, there are many who argue convincingly that the rule of law crisis which has been unfolding during the last decade is of a different, one could say existential, character for the Union, and should be a cause for greater concern and trepidation.[5] For one, the majority of crises the Union has coped with, or is currently struggling with, is caused by external factors, such as global financial streams, migration flows or climate change. In contrast, the rule of law crisis is internal to the Union. More importantly even, it strikes at the heart of the Union’s constitutional principles and institutional foundations. For what happens with a Union based on mutual trust and law-governed cooperation if legal commitments are not observed and if the Member States, i.e. the composite units in the carefully intertwined common construct, cannot guarantee the integrity and accountability of their core institutions?

In addition, the state of the rule of law in the Union has substantial external implications, notably in the context of an intensified EU enlargement process. This process involves countries with poor rule of law record and, after opening accession negotiations with Ukraine, extends even to candidate states that are currently at war.[6] Showing credible commitment to the rule of law has been one of the major hurdles set before the candidate states on their path to EU accession. Therefore, ensuring respect for the rule of law in the Union becomes decisive for the authority and legitimacy of EU enlargement policy. In sum, the rule of law emerges as a major challenge for both European integration and for the continuing enlargement of the Union.

The rule of law crisis that is at the center of this chapter can be linked to a general political trend of nationalist and populist forces either rising to power, or gaining increasing political influence across the European continent and beyond.[7] While this trend can be discerned in a number of EU Member States, it has been most prominently visible in the ascent of self-proclaimed ‘illiberal democracies’, starting with the coming to power of Victor Orbán’s Fidesz party in Hungary in 2010, and in Poland during the period of consecutive governments led by the Law and Justice (Prawo i Sprawedliwość, PiS) party.[8] These political parties have used their time in government to strengthen their grip on political power by engaging in a quest to undermine constitutionally established checks and balances, and by systematically assaulting the independence of key institutions, such as the media, educational establishments and notably the judiciary. As a result, in 2020, Freedom House for the first time qualified Hungary as a ‘transitional or hybrid regime’, while Poland slipped back into the group of semi-consolidated democracies.[9] Since then, the situation in Hungary has not improved. In contrast, Poland experienced what has been described as a ‘tectonic shift’ with the elections of October 2023, leading to the loss of power by the PiS party and the start of a difficult process of restoring the rule of law and repairing the damage on the country’s democratic institutions.[10] What has been particularly distinctive of Hungary under Orbán and the PiS-led governments in Poland, is that these regimes have not even pretended to follow European rule of law standards and have instead been taking a course of open confrontation with EU institutions.[11]

In the face of the potentially devastating effects of such rule of law backsliding[12] for the mutual trust on which European integration builds, and hence for the very survival of the European project, all EU institutions have felt bound to act to uphold the rule of law as a fundamental EU value. Indeed, the Commission, the European Parliament, the Council and the Court of Justice of the European Union (hereinafter, the Court, or CJEU) have each within their respective sphere of competence, weighed in on the question of rule of law compliance and, albeit with differing resolve, undertaken specific measures to bolster the rule of law in EU Member States more generally, and address developments in backsliding states like Hungary, and previously Poland, in particular. The avenues for action have been manifold and intersecting, prompting scholars to search for a suitable taxonomy that would enhance the understanding for the various tools and measures and their implications and relative importance. Classifications have been offered along different lines: according to the institutional actor undertaking the respective measure (Council, Parliament, Commission, Court, other bodies)[13], according to the functional sphere within which the respective tool is situated (political, legal, financial)[14], or according to the character of the governance approach employed (proceduralization, conceptualisation, judicialization).[15]

A natural point of reference in this search for the right strategy are the lessons learned from past experiences. In this respect, as I will argue in this contribution, particular attention deserve the insights gained during the “big-bang” Eastward Enlargement of the Union of 2004, 2007 and 2013 (hereinafter the Eastward Enlargement) and the way the obligation of ensuring respect for the rule of law in the Central and Eastern European (CEE) candidate states was handled in this process. The reasons for looking closer into the Eastward Enlargement are manifold. First, although incidences of rule of law deterioration can be observed in many countries within and outside Europe[16], it is quite obvious that the risk for democratic backsliding is more imminent in the new, still immature democracies from CEE that came out of the grip of authoritarian rule after the fall of the Berlin Wall in 1989. To be sure, there is a considerable variety in the political paths of the individual CEE Member States and not all of them are showing the same tendency of rule of law backsliding and open disrespect for international commitments as Hungary and Poland under the period of PiS-led governments. Yet, there seems to be broad agreement among initiated observers that the quality of democracy and the rule of law in the region has been deteriorating.[17]

Secondly, EU policy in the field of the rule of law, in particular seen as a requirement vis-à-vis Member States, stems to a large extent from the process of Eastward Enlargement that has unfolded in the 1990s and beginning of 2000s. At this juncture, democracy, the rule of law and fundamental rights protection were set out unequivocally in the EU Treaties as shared values and conditions for Union membership. More generally, the evolving framework for ensuring respect for the rule of law in the Union has been noticeably influenced by the critique of double standards and the urge to close the gap between external and internal standards in this domain.[18]

Thirdly, in the context of the Eastward Enlargement, EU institutions, notably the Commission, started to flesh out the broad concept of the rule of law through more detailed positive and negative requirements and obligations. Crucially, it began developing a toolbox for screening and assessing the state of the rule of law in individual candidate states, adjusting the various instruments in the toolbox as experience from their application accumulated. A closer insight into this process can thus, arguably, help improve the efficiency and effectiveness of current EU rule of law policy, both internally in respect to EU Member States and externally, in respect of the ongoing process of preparing new candidate states for their accession to the Union.

The chapter proceeds as follows: In the next section, I go back to the beginnings of European integration and enquire into the status of the rule of law as a Community/Union value in the early days of the European project. I then trace the growing formalization and codification of the rule of law in the EU legal framework and the Treaties, taking place largely in anticipation of the Union’s Eastward Enlargement. In a subsequent section I look into the process of preparing the Candidate Countries (CCs) from Central and Eastern Europe (CCE) for accession to the Union, focusing on respect for the rule of law as part of the Copenhagen criteria for membership. Particular attention is given to the evolving Commission toolbox of instruments for screening the status of the rule of law in the CCs and guiding them towards building the necessary safeguards for the protection of the rule of law in their national legal and institutional systems. After this review, the chapter turns to the crisis of the rule of law in some of the CEE Member States of the Union post accession. The current multi-track mobilisation of Union institutions to respond to the rule of law backsliding is assessed, gauging the relative weight of different instruments in the internal rule of law policy of the Union. In a concluding section, the chapter identifies the challenges ahead, paying particular attention to the place of rule of law requirements in the ongoing Enlargement process. The overarching question is to what extent the lessons learned from the Eastward Enlargement of the Union can contribute to forging a more effective and sustainable internal and external EU rule of law policy.

The Rule of Law in the EU legal framework prior to the Eastward Enlargement

In recent academic debate, it is argued that there is a sufficiently firm common understanding of the meaning and scope of the principle of the rule of law in the EU. According to Pech, ‘there is now a broad legal consensus in Europe on the core meaning of this principle, its minimum components, and how it relates to other key values such as democracy and respect for human rights’.[19] While this statement may be correct as a reflection of the current state of affairs, at the time when the Eastward Enlargement first came into sight as a political option for the EU, the situation was quite different. As most commentators agree, there was at that juncture a relatively thin express normative basis for the rule of law as a condition for EU membership, and scarce detail as to the exact content of the rule of law as an EU law principle.[20] Indeed, if we try to trace the evolution of the concept of the rule of law in Community/Union law, we must start by acknowledging that in the course of the four decades of legal history preceding the process of Eastward Enlargement the concept appears only rarely in legislative documents and in the jurisprudence of the European Court of Justice (ECJ).

Rule of Law in the Original Treaties

The original treaties of the European Communities contained no solemn declarations or formal commitment to the rule of law, democracy and fundamental rights.[21] There is no consensus in the literature as to the reasons for this conspicuous silence. Some seek the explanation in the fact that the United Kingdom (UK) was not among the founding Members of the European Communities. Since ‘the rule of law’ is a very central concept in UK law, it is seen as not surprising that the concept does not appear in the founding Treaties of the European Communities, while in contrast it occupies a prominent place in the Statute of the Council of Europe (CoE) and the ECHR.[22] At the same time, it is argued that by defining the function of the ECJ as being to guarantee ‘that the law is observed’, the legal system of the EU has from its inception been solidly based on the rule of law. Certainly, the very existence of the ECJ and the bold scope of its jurisdiction, including a mandate to review the legality of the acts of EU institutions, are in themselves a robust evidence of the importance of the rule of law in the legal and institutional system of the EU.[23] However, this can hardly be equated to the prominent commitment to the rule of law, as, for example, in the Statute of the CoE, nor to an explicit requirement of respect for the rule of law addressed to the Member States.

A more plausible explanation for the silence is in my view to be sought in the different approaches to European cooperation represented by the two major European organisations established in the aftermath of World War II. Whereas the CoE was conceived as an intergovernmental organisation with the main mission of upholding human rights in its Member States, the European Coal and Steel Community and, later on, the European Economic Community (and Euratom) were set up as international organisations of a hybrid type, with a substantial degree of delegation of sovereignty to supranational institutions and centered around the idea of a Common Market. This approach, closely associated with the architect of European integration Jean Monnet, and aptly referred to as ‘functionalist’, relies on achieving political unity through the logic of market integration.[24] It envisages pragmatic steps towards intertwining the economies of the Member States, while avoiding a debate over ‘the political’.[25] If this view is correct, the absence of a reference to the rule of law in the original Treaties should not be seen as an unfortunate omission but rather as a conscious choice that followed logically from the model of European cooperation pursued by the Communities.

Certainly, the absence of an explicit rule of law clause in the original treaties did not mean that the founding members were tolerant or indifferent towards the rule of law. Quite to the contrary, the minimalist approach was partly possible due to the lack of sharp incongruences in the original Member States’ understanding of fundamental constitutional values.[26] The traumatic heritage of World War II, and the living example of the detriments caused by authoritarian rule in the European countries within the Soviet sphere, had the effect of limiting, if not eliminating, the basis for political movements questioning the values of democracy, the rule of law and human rights in Western Europe. Moreover, all founding Member States of the European Communities were Members of the CoE. One might say that the rule of law, understood as a fundamental limitation on the exercise of state power, had been taken for granted among existing Member States.[27] The fact that countries like Greece, Spain and Portugal, which went through periods of military juntas and authoritarian rule in the decades following World War II, were not considered for membership until their clear return to democracy and the rule of law, also testifies to this tacit assumption.

The Rule of Law in the Court’s Jurisprudence

Given the absence of an explicit reference to the rule of law in the original Treaties, it famously fell to the ECJ to painstakingly educe the rule of law as a general principle and undergirding value of the EU legal order. Some scholars see already the seminal judgments of Costa v ENEL and Van Gend en Loos as early recognition of a vision of the Communities as bound by law and constituting a separate legal order with a clear hierarchy of norms, where EU law prevails over conflicting rules of national law and citizens can derive individual rights directly from EU law and enjoy judicial protection of these rights.[28]

The Court also gradually developed other principles that constitute essential components of the rule of law, such as the principles of legality, legal certainty, separation of powers (or, in the EU context, of functions), prohibition of retroactivity, and judicial review of administrative acts.[29] Notably, in a line of creative jurisprudence, the ECJ recognised fundamental rights as constituting general principles, and thus an integral part, of EU law.[30] But it was in the seminal decision in ‘Les Verts’ that the ECJ recognised most prominently the principle of the rule of law as a general principle of EU law.[31] The Court famously referred to the principle of legal community (Rechtsgemeinschaft), or a community under the rule of law.

No doubt, this jurisprudence contributed greatly to consolidating the self-perception and the international standing of the European Community as a Community of law, cherishing the principles of legality and the rule of law and guaranteeing respect for fundamental rights. Based on the analysis of individual Treaty provisions and of relevant ECJ case law, scholars have argued that the rule of law was at the end of the 1980s well developed in Community law, in both its formal and its substantive dimensions, as a declaratory and a procedural concept.[32] However, it is also admitted that the case law has predominantly been spurred by concerns about safeguarding the supremacy of EU law, rather than by substantive ambition about raising the level of respect for the rule of law and human rights in the Community. As aptly formulated by de Búrca, the jurisprudence has been ‘reactive’, and one might even say defensive, in character.[33] Moreover, the Court has been rather cautious about acknowledging general Community competences in the field of human rights.[34] As a consequence, Member States have been subject to EU or ECJ jurisdiction in matters of the rule of law and fundamental rights only ‘in highly circumscribed contexts’.[35]

In sum, the approach of the Communities/Union to the constitutional question, including the rule of law and fundamental rights, has from the outset been one of minimalism and incrementalism. The tension has systematically stemmed from Member States’ claiming higher levels of protection of constitutional principles and fundamental rights in their national constitutional legal order, and voicing concerns that the same high levels could not be guaranteed by the EC/EU. As we shall see in the following, exactly the reverse concern has become the driving force behind the next stage in the development of the rule of law in the Union, a development propelled largely by the prospect of Eastward Enlargement of the Union.

Reinforcement of the EU Rule of Law Framework in Anticipation of the Eastward Enlargement

Against the background sketched out above, it is fair to say that the principle of the rule of law made its true entry into the Treaties and EU constitutional law only after the collapse of communism in CEE, and when the prospect of a closer relationship with the CEE countries came within reach.

The Entry of the Rule of Law into the Treaties

The first mention of the rule of law in the Treaties was in the Treaty of Maastricht of 1992, where the principle was expressly acknowledged as an EU principle. Member States officially confirmed ‘their attachment to the principles of liberty, democracy and respect for human rights and fundamental freedoms and of the rule of law’.[36] However, this was done only in the Preamble, in relatively vague or, to use Pech’s words, ‘symbolic’, terms, and with no specific definition or obligations attached.[37] It is notable that in the Preamble, the clause on the rule of law came immediately after a clause recalling ‘the historic importance of the ending of the division of the European continent’. Thus, the link between elevating the status of the rule of law in the Union and the end of the Cold War was openly acknowledged.

Surely, at the time of drafting of the Maastricht Treaty, the exact fate of the relationship between the former socialist states from CEE and the EU was still not conclusively decided. In a Commission Communication from August 1990, the Commission outlined the immediate way forward as being one of Association Agreements with the countries of CEE.[38] Still, the prospect of opening the EU to new members from CEE was already on the table, something confirmed by the fact that a special article on the procedure for accepting new members was included in the Treaty on European Union (TEU) (Article O Maastricht Treaty, now Article 49 TEU). More importantly, the context in which the Maastricht Treaty was drafted was starkly shaped by the dramatic events in CEE. It was exactly within this historical timespan that democracy, the rule of law and fundamental rights received world-wide attention and recognition as never before.[39]

Against this backdrop, it is surprising that while the Maastricht Treaty included a provision on accepting new Members, clearly in anticipation of such applications from the CEE countries, it did not set out any specific criteria for membership and did not mention the rule of law as such a criterion. This only comes to confirm that the rule of law has been a concept in the making, the content and importance of which were evolving in parallel with the process of Eastward Enlargement.

The Crucial Role of the Copenhagen Criteria

Only a year after the entry into force of the Maastricht Treaty, at the Copenhagen European Council of June 1993, the EU declared that ‘the associated countries in Central and Eastern Europe that so desire shall become members of the European Union’. The Council also famously defined the economic and political conditions required for the associated countries to join the Union. These conditions, or criteria are divided into three groups:

political conditions, requiring that ‘the candidate country has achieved stability of institutions guaranteeing democracy, the rule of law, human rights and respect for and protection of minorities’;economic conditions, requiring ‘the existence of a functioning market economy as well as the capacity to cope with competitive pressure and market forces within the Union’;acquis criterion, that is, the ability to take on the obligations of membership, including adherence to the aims of political, economic and monetary union.[40]

Importantly, the Madrid European Council in 1995 complemented the third criterion by stressing the necessity not only of formally transposing the acquis, but also of implementing it effectively through appropriate administrative and judicial structures. Some analysts treat this addition as a separate, fourth criterion requiring (d) institutional and administrative capacity to implement the acquis,[41] which is in my view a useful distinction.

Students of EU Enlargement have been adamant to point out that the Copenhagen criteria should not be regarded as a novelty but rather as a consolidation and codification of the experience and practice of previous enlargements.[42] At the same time, it is also acknowledged that among the criteria there were many new elements in both substantive and institutional terms. For one, the political conditions for membership were formulated in greater detail, extending to areas where the Union itself had at the time limited competence (see below). Secondly, they were set out in more straightforward, even ‘command’ terms.[43] Thirdly, whereas in previous accessions, candidate states were expected to fulfil the EU admission conditions without much interference from the Union, in the conclusions from the Copenhagen European Council the EU declared its intention to engage actively in preparing the CCs for membership, steering and monitoring the process.[44]

Increased Formalisation of the Principle of the Rule of Law in the Treaties

The prominent place awarded to the rule of law in the Copenhagen criteria had notable political repercussions for the Union. Very soon, the principle found expression in the texture of the EU Treaties. The Amsterdam Treaty, which was signed in 1997, when the official negotiations on the CEE countries’ membership of the EU had already taken off, stipulated this time more clearly in the Treaty text that the Union is founded on the principles of liberty, democracy, respect for human rights and fundamental freedoms, and the rule of law, principles that are common to the Member States (Article F(1), now Article 2 TEU, considerably amended, my italics).

The most obvious provision preparing for the future Eastward Enlargement was the amended Article O (now Article 49 TEU), which through reference to Article F(1) finally cemented the political conditions for membership as known from the Copenhagen criteria, namely democracy, the rule of law and fundamental rights (minus minority rights), elevating them into Treaty requirements. At this juncture, it was also considered important to introduce an insurance against possible future democratic and rule of law backlash in a Member State through the setting up of a sanctioning mechanism in case of a serious and persistent breach of the values and principles laid down in Article F(1) TEU (see Article F.1, now Article 7 TEU).

As acknowledged by the Commission in subsequent accession documents, through the Treaty of Amsterdam ‘the political criteria defined at Copenhagen were essentially enshrined as constitutional principles in the Treaty on European Union’.[45] Scholars speak of codification of the Copenhagen criteria.[46]

Consolidating Fundamental Rights Protection in the Union

Similar and even more revolutionary development can be traced in the closely related domain of human rights and fundamental freedoms. The Eastward Enlargement of the EU can also in this area be seen as providing a powerful impetus for the advancement of a genuine human rights agenda for the Union. The evolution followed a parallel trajectory to the one regarding the rule of law, anchoring the commitment to fundamental rights in the Treaties as a general principle of EU law through Article F Maastricht Treaty (now Article 6 TEU), codifying in this way the doctrine developed by the ECJ, on the one hand, and setting it out as a condition for membership through the Amsterdam Treaty, on the other. These changes were clearly intended to ‘signal to the candidate countries that membership comes out of the question before it is certain that they have legislation which protects and guarantees citizens’ rights’.[47]

Decisively, the Union’s commitment to human rights and fundamental freedoms received solemn recognition and reinforcement through the European Union Charter of Fundamental Rights (hereinafter, CFR or the Charter) signed in 2000. This move was undertaken clearly as a safeguard and insurance against unwanted backlash in the CEE candidate countries post accession. Less conspicuously, it was prompted by the criticism that had started to mount against EU institutions for applying double standards in the ongoing Enlargement process, setting stricter requirements in respect of the CCs than the Union could demand from its own Member States.[48] The Charter can thus be conceived as a step towards strengthening the integrity and trustworthiness of the Union’s fundamental rights policy, closing the gap between external and internal standards.[49]

Screening the Candidate Countries for Rule of Law Compliance

As seen in section III above, the Eastward Enlargement worked as a powerful force, raising the status and visibility of the rule of law in the constitutional framework of the EU. The question to be discussed in this section is how the Union approached the rule of law in its pre-accession policy; a discussion which inevitably is centered around the notion of ‘conditionality’.

General Approach: The Rise of Rule of Law Conditionality

In the legal and political science literature on EU Enlargement, the concept ‘conditionality’ has acquired almost canonical status.[50] Interpreted narrowly, conditionality implies that the CEE countries are allowed to become Members only after certain political and legal conditions are fulfilled. Conceived more broadly, conditionality represents the key component of EU institutions’ approach to accession, seeking to engender change in the laws and institutions of the CCs by applying continuous pressure on them through a system of specific targets and tangible rewards, with the aim of bringing the countries closer to EU standards and requirements. The concept captures well the asymmetric relationship between the parties involved – the EU (the Commission) setting the conditions for entry ‘into the club’ and the CCs striving to meet those conditions.[51]

The term ‘conditionality’ first entered the enlargement discourse with the conclusions of the Copenhagen European Council of 1993 and the stipulation of the Copenhagen criteria. The years before that, i.e. the initial phase in the relations between the CEE countries and the EU, had the character of a traditional diplomatic exchange. The emphasis had been on ‘meetings of an advisory nature’ and the tone – one of ‘co-operation and assistance’.[52] Once the conditions for membership were set out in unambiguous and non-negotiable terms, the approach changed palpably, and the relationship became increasingly skewed and formalised.

Still, the true rise of conditionality is associated not with the Copenhagen criteria, but rather with the Commission Communication ‘Agenda 2000’ from 1997. In this document, the Commission presented a comprehensive vision for a reinforced pre-accession strategy.[53] The main tenet of the strategy was advancing conditionality by setting specific priorities and intermediate targets adapted to each CC’s particular problems and challenges, and enhancing the scrutiny of these countries’ progress towards meeting the Copenhagen criteria.[54] Consequently, positive evaluation by the Commission became decisive for the start, and thereafter the progress, of accession negotiations. Most analysts therefore consider Agenda 2000 to be the point when rule of law conditionality ‘acquired teeth’ and real ‘bite’.[55]

The Toolbox of Conditionality: Regular Country reports and Accession Partnerships

The enhanced strategy comprised a myriad of documents and policy instruments, two of which stand out as particularly important: individual country assessments and Accession Partnerships.[56]

The Commission kept producing regular and individualised assessments of the level of compliance of the CCs with the criteria for membership throughout the pre-accession process. The first round of such assessments comprised the so-called Country Opinions attached to Agenda 2000, giving an initial appraisal of the situation in the applicant countries, also in respect of the political conditions for accession. These initial opinions were then followed up by annual country reports (so called Regular Reports (RRs)) measuring the applicant countries’ progress toward meeting the conditions for membership. The RRs were drawn up and published simultaneously for all CCs, introducing in this way a strong comparative and competitive element in the procedure and amplifying the level of scrutiny and pressure on the applicants.

The second instrument in the ‘toolbox’ of conditionality was the so-called Accession Partnership (AP). Such partnerships, between the Council, on the one hand, and each of the CCs, on the other, were signed following a proposal from the Commission, and were thereafter regularly revised and updated. The instrument allowed the Commission to break down the otherwise daunting task of preparing the CCs for membership into more specific short-term and intermediate objectives, and to adapt its assessments and recommendations to the situation and performance of each applicant.

The most important dimension of the instrument was, however, that it offered a framework for enforcing ‘strict conditionality’ in allocating technical and financial assistance to the CCs.[57] Throughout the pre-accession process, the CEE countries were benefitting from considerable financial and structural aid, notably through the PHARE programme, but also through twinning programmes and access to Community programmes such as SAPARD.[58] With the introduction of APs this much-needed assistance was made conditional upon compliance with the objectives and commitments specified in the APs. Failure to respect these conditions and commitments could lead to a decision by the Council to suspend financial assistance.[59] Thus, the instrument gave EU institutions, and the Commission in particular, powerful leverage in micro-steering reforms in the CCs and enforcing accession conditionality. According to Kochenov, the APs laid the ground ‘for a fully-fledged conditionality of sticks and carrots’.[60]

A less-observed aspect of the AP instrument is that it was conceived, as the name indicates, as a partnership, that is, as a framework of common engagement, with priorities and precise objectives set up in collaboration between the EU and the CCs. While conditionality is usually analysed as building on one-sidedness and asymmetry, the active engagement of EU institutions in preparing the CCs contributed to gradually transforming Enlargement into a common project in which both the CCs and the Union institutions, notably the Commission, had a stake.[61]

Methodology of Assessment

In Agenda 2000, the Commission described the methodology applied for the individual country assessments as going beyond formal indicators and seeking to establish how democracy and the rule of law ‘actually work in practice’.[62] At the same time, when looking at the sources of information on which the Commission relied, it appears that the assessment has been ‘largely paper based’.[63] Central place among the sources was awarded to a questionnaire that was sent out to each of the applicant countries. According to commentators who have looked closely into the process, the questionnaire was composed of numerous but often rather scattered and arbitrary questions, which were then left to the self-assessment of the candidate states’ governments.[64] Other sources that are named explicitly are assessments by the Union Member States, European Parliament reports and resolutions, and more broadly ‘the work of various international organisations, non-governmental organisations and other bodies’.[65]

The questionnaire method was complemented by bilateral meetings held with each of the applicant countries. The information gathered through those meetings is apparently processed in an informal manner, without employing any quantitative or qualitative methods established in social sciences.[66]

The Rule of Law as a Moving Target

The preceding admittedly cursory review of EU’s pre-accession strategy and the methodology for assessment provides an insight in the modalities of the Commission’s rule of law screening and assessment exercise. However, the most important variable in this assessment is the very benchmarks against which the performance of the CCs was measured. Following the Copenhagen European Council, it was clear that commitment to the rule of law was one of the political conditions for membership of the Union. Yet, the precise meaning and contents of this condition remained vague. According to one of the early critics of EU enlargement policy and rule of law conditionality, the concepts of the rule of law and democracy were undetermined in the EU legal framework and thus open to interpretation and contestation. They were ‘almost impossible to measure’ – something making their use as conditions for membership precarious.[67]

Given this indeterminacy, the role of EU institutions, and notably the Commission, for defining the standards, establishing compliance thresholds and assessing individual CCs’ performance looms large. The Commission was well aware of the exceptional character of its mission. In Agenda 2000, it described its task not merely as difficult, but as unprecedented. The two main challenges as the Commission saw it were (i) that the broadly defined political criteria went far beyond the acquis communautaire and (ii) that the acquis had expanded since previous enlargements, including, among others, the area of justice and home affairs (JHA).[68] Both concerns were highly relevant for the rule of law component of political conditionality.

Concerning the first point in particular, at the beginning of the accession process there was little in terms of binding EU acquis in the area of the rule of law, as well as concerning administrative and judicial structures. Importantly, given competence limitations stemming from the principle of conferral, the Union did not consider itself to be in a position to set out general requirements as to the regulation of these domains in the EU Member States.[69] Correspondingly, there were no tools for systematic monitoring and assessment of these fundamental features of Member States’ constitutional orders. Hence, the Eastward Enlargement process inevitably had to be one of learning by doing, and the resulting methodology – vacillating and eclectic.

Probably the most fundamental challenge to the accession process was that the legal and administrative systems in the CCs were in a process of major rehaul as part of their post-communist transformation. This process ran parallel to EU accession, which made keeping track of relevant legislation and practice difficult. The Commission thus found itself in the precarious position of having considerable leverage in shaping rule of law institutions and legislative frameworks in the CCs, while having no firm ground for offering advice and guidance.

The EU institutions approached the challenges in a pragmatic manner. The Commission proceeded to put more flesh on the bones of political conditionality through general policy documents, such as Agenda 2000, composite and strategy papers, as well as country-specific documents such as APs and RRs. The screening and assessment documents were typically structured following the Copenhagen criteria, namely considering the rule of law (i) as constituting a political condition for membership, (ii) as being decisive for the administrative and judicial capacity of the candidate states, but also gradually as (iii) binding acquis as the Union advanced its competence within the area of Justice and Home Affairs (JHA). Given the fact that these areas of scrutiny were in constant flux, a dividing line between them was not always easy to draw.[70]

The Rule of Law as Part of the Political Conditions for Membership

Concerning the political criterion for membership, Agenda 2000 drew up three thematic fields to be examined under this point:

democracy and the rule of law;human rights; andrespect for minorities.

Within the rule of law field, on the basis of the RRs, scholars elicit five main areas that were part of the Commission’s scrutiny: (i) supremacy of law, (ii) the separation of powers, (iii) judicial independence, (iv) fundamental rights and (v) the fight against corruption. It has been argued that these areas broadly correspond to the rule of law concept as it had evolved in the internal legal order of the Community/Union, probably with the exception of the fight against corruption, which was still a novel domain for the EU.[71] Yet it is also acknowledged that the Commission never ventured to offer an analytical definition of the rule of law. If anything, a definition could be derived from the individual elements and indicators included in the RRs, but there was no attempt to explain how these elements fit together into a coherent concept.[72]

In the individual country Opinions attached to Agenda 2000 and the subsequent RRs, the rule of law was mostly analysed through the main institutions representing the different branches of power, principally the executive and the judiciary in the respective state. The Opinions contained descriptive details about the organisation of public administration, the laws governing public service and the organisation of the judiciary in the CCs. Particular attention was paid to the relevant institutional structures, such as constitutional courts, ombudsmen, supreme courts, the hierarchy of the court system, the position of the public prosecution, etc.

The Rule of Law as Part of Administrative and Judicial Capacity

The second basis for the Commission’s scrutiny of the rule of law in the CCs was the fourth Copenhagen criterion, putting emphasis on the capacity of administrative and judicial structures to apply the acquis. Scrutinising the rule of law under this criterion highlighted its importance not only as a political, but also as a highly pragmatic condition of vital importance for the functioning of all other Union policies, and notably for giving full effect to the Internal Market acquis.[73]

Throughout the Enlargement process, the ‘capacity’ criterion has been used as a basis for demanding substantial reforms of the public administration and the judiciary in the CCs, with a view to making them independent, professional, accountable, and up to the task of applying the acquis and participating in processes of administrative and judicial cooperation.[74] Since the institutional structure of public administration and the judiciary, as well as enforcement, was at the time of Enlargement largely governed by the principle of national procedural and institutional autonomy, requirements under this point constituted another way of expanding the external mandate of the Commission vis-à-vis the CCs beyond the scope of its internal mandate in respect of the Member States.[75]