Challenges of Rule of Law Conditionality in EU Accession

• Author: Ana Knežević Bojović/Vesna Ćorić
• Position: Institute of Comparative Law/Institute of Comparative Law
• Pages: 41-61

BRATISLAVA

LAW

REVIEW

PUBLISHED BY

THE FACULTY OF LAW,

COMENIUS UNIVERSITY

BRATISLAVA

ISSN (print): 2585-7088

ISSN (electronic): 2644-6359

CHALLENGES OF RULE OF LAW CONDITIONALITY

IN EU ACCESSION / Ana Knežević Bojović, Vesna Ćorić

Ana Knežević Bojović,, Ph.D.

Senior Research Associate

Institute of Comparative Law

Terazije 41,

11000 Belgrade; Serbia

a.bojovic@iup.rs

ORCID: 0000-0002-3746-5747

Vesna Ćorić, Ph.D.

Senior Research Associate

Institute of Comparative Law

Terazije 41,

11000 Belgrade; Serbia

v.coric@iup.rs

ORCID: 0000-0003-4240-7469

Abstract: EU enlargement process towards the Western Balkan

countries has been in place since the 2003 Thessaloniki summit.

However, the expected democratic transformation and fostering

of the rule of law values have not become a reality, while rule of

law conditionality has been criticized as ineffective in achieving

its goals. In parallel, the EU has been struggling with rule of law

backsliding internally, and, in order to tackle this issue, has

developed a multitude of instruments that have so far had limited

effects on internal rule of law promotion. The paper supports the

idea that there is a need for approximation of the rule of law

standards in the EU’s internal and accession policies. After

providing a bird’s-eye-view of the position of the rule of law in EU

accession negotiations with WB countries, the authors go on to

elaborate on the four major causes contributing to the EU’s lack

of effectiveness and coherence in the WB accession process. In

doing so, the authors provide recommendations on how to

improve the convergence between internal and accession rule of

law policies and foster a common understanding of the rule of

law as a core pre-and post-accession value in the EU.

Submitted:

21 December 2022

Accepted:

13 April 2023

Published:

30 June 2023

Key words: EU; Rule of Law; Rule of Law Conditionality; EU

Accession; Western Balkan Countries; Effectiveness; Coherence

Suggested citation:

Knežević Bojović, A., Ćorić, V. (2023). Challenges of Rule of Law

Conditionality in EU Accession. Bratislava Law Review, 7(1), 41-62.

https://doi.org/10.46282/blr.2023.7.1.327

1. INTRODUCTION

The European Union’s (hereinafter:

EU

) enlargement proces s towards the

Western Balkans (here inafter:

WB

) countries has been in place since the 2003

Thessaloniki summit. Although it had provided the region with the EU membership

perspective, the expected democratic transformation and fostering of the rule of law

values have not become a reality (Zweers et al., 2022, p. 10). The transformative powe r

of the EU, attributed to the attractiveness of the EU itself, both in economic terms and as

a norm-setter, was hailed as a success in the 2004 EU enlargement cycle.1 It is

prevailingly explained as the phenomenon of external conditionality through the External

1 The term “transformative power” was originally coined by Mark Leonard (2005 ), for positively assessed

transformative power of the EU in former communist countries see Grabbe (2006); Pridham (2005);

Schimmelfenig, Engert, and Knobel (2006); Vachudova (2005).

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A. KNEŽEVIĆ BOJOVIĆ & V. CORIĆ

BRATISLAVA LAW REVIEW

Vol. 7 No 1 (2023)

Incentive Model,2 where the EU sets the adoption of its norms and rules as conditions

that prospective candidates have to fulfil in order to receive a reward i.e. EU membership.

The said conditions comprise both political (such as democracy and the rule of law) and

regulatory conditions (pertaining to the EU’s public policies) (Zhelyazkova, Damjano vski,

Nechev, and Schimmelfennig, 2019).

However, the rule of law conditionality3 has been criticized as ineffective in

achieving its goals in the case of the WB countries for various reasons, particularly for

those related to social changes and strong legacies of the past; it is said to have caused

fragmentation and even state capture (Börzel and Pamuk, 2012; Mendelski, 2016;

Mungiu-Pippidi, 2007, 2014; Richter and Wunsch, 2020). Independent indicators reveal

that the democratic level of some countries in the region has in fact deteriorated in the

past decade.4 Further criticisms of the approach point to the lack of differentiation

between democratic consolidation and rule of law (Kochenov, 2004), and the absence of

a coherent EU conception of the rule o f law and its underlying monitoring and

implementation framework (P ech, 2016). The EU institutions and member states have

also recognized the lack of reform progress in the WB countries5 and are attempting to

address it through changes in the accession methodology.

In parallel, the EU has been struggling with rule of law backsliding internally. As

Craig duly points out, once rather general or abstract primary duty, stemming from Article

2 of the TEU, thought to be “merely hortatory stuff”, rule of law has gained a more

substantive and real dimension within the EU over the recent years (Craig, 2020). This

was done through a series of efforts made by the CJEU, the European Commission, and

the Council. These developm ents have been criticized and assessed as a multiplication

of new instruments but in an uncoordinated manner, with limited effects on internal rule

of law promotion within the EU (Pech, 2020). In that context, Kmezić and Bieber (2020, p.

1) argue that the solution for the problems pertaining to the internal and the external

dimensions of the EU rule of law promotion and protection can be found in aligning these

policies. In a similar vein, other authors call for approximation of the rule of law standards

in the EU’s internal and accession policies, relying on the premise that the rule of law is a

value to be shared between the EU member states and non-member states that will

continue to be shared among the EU member states in the future (Merdzanovic and

Nicolaidis, 2021, p. 122; Nicolaidis and Kleinfeld, 2012).

The present paper posits that the different approaches the EU takes in the field

of rule of law internally and externally are in principle acceptable and reasonable, to the

extent they are attributable to the specifics of internal and external policies. The authors

2 There are two additional models of Europeanization proposed: social learning and lesson drawing (see

Schimmelfennig and Sedelmeier, 2004 for more details).

3 For the purpose of this paper, the “rule of law conditionality” will encompass both the internal and the external

dimension of rule of law conditionality, and will not be restricted to the meaning of the term as per the Rule of

Law Conditionality Regulation (Regulation (EU, Euratom) 2020/2092 of the European Parliament and of the

Council of 16 December 2020 on a general regime of conditionality for the protection of the Union budget).

4 See, for instance, the Bertelsmann Stiftung’s Transformation Index (BTI) which qualifies all WB countries as

defective or highly defective democracies (https://bti-project.org/en/reports/east-central-and-southeast-

europe), while the Nations in Transit 2022 report qualifies them as transitional or hybrid regimes which are

generally less free compared to 2020, with the exception of Montenegro, see Change in Democracy Status. In

Freedom House, available at:

https://freedomhouse.org/explore-the-map?type=nit&year=2022&mapview=trend (accessed on 15.05.2023).

5 For instance, the European Court of Auditors in its recent report firmly criticized EU investments in rule of

law reforms in the WB countries, noting the absence of progress in the region and hence questioning the

overall sustainability of EU financial support. The 2021 and 2022 European Commission enlargement

packages confirm that the lack of reforms in the rule of law area in particular remains a major issue in the

accession process (European Court of Auditors, 2022).