Rule of Law in the Context of the EU Enlargement to the Western Balkans

by Ioannis Papageorgiou [1]

Introduction

Rule of law issues have increased in prominence in the European integration process during these last years. Allegations of violation of the principles of rule of law by some member states and calls for the activation of article 7 of the Treaty of European Union which allows to take measures against a member state which violates or threatens to violate the values on which the EU is founded have multiplied, regarding, especially, relations between the EU and Poland and Hungary. Problems with systemic corruption and connections between politics and organized crime are also present in EU’s relations with other EU member states, among them Bulgaria and Malta. This deterioration of rule of law in some EU countries – and the problems this creates for the EU – has brought to the forefront the significance of a solid set of rule of law principles as a prerequisite for any future accession to the EU, in particular, regarding the countries of the Western Balkans.

Although rule of law is included in the Copenhagen criteria and constitutes a prerequisite for candidate countries, its effective application and measurement of fulfillment varied in previous accession negotiations; accession was often determined more by political expediency rather than through an objective, means-based fulfillment of specific scoreboards. The recent developments inside the EU regarding rule of law violations have also affected the importance of rule of law in new accessions and led to making these criteria more measurable across the board.

This article examines the implications of rule of law in the negotiations and discussions between the EU and candidate states. It analyses how rule of law issues were treated in the previous enlargements, how these issues obtained prime significance as of lately and looks to the extent that rule of law is dealt with in the current accession context towards the countries of the Western Balkans. It examines how these considerations are introduced by the EU during the negotiations and its efforts to maintain relevant pressure even after formal negotiations end. Finally, it examines the effective significance of rule of law in the relations between the applicant states and the EU and the reaction of the latter but also candidate states in the way these matters are treated in the current negotiations. In addition, it examines weather the Russian invasion on Ukraine and the European perspective of Ukraine which opened in 2023 might influence the  possible changes on

Rule of law in the European Union

The European integration process contained from the start an implicit prerequisite of liberal and democratic values for its member states. Though the Treaty of Rome did not include any explicit reference to the democratic credentials of its own as well as applicant states, it was manifest that only countries which respected democratic  principles could be or become members of the EEC.[2] Following the 1967 military coup in Greece, the association agreement between the EEC and Greece was frozen. In a relevant resolution adopted on 2 June 1967 the European Parliament insisted that “the association agreement cannot be applied in its various facets unless the democratic institutions and civil liberties were restored in Greece” (European Parliament, 1967, 1).[3]

The Declaration on European Identity adopted by the heads of state of the EEC in Copenhagen (December 1973) specified that member states shared “the same attitudes to life [and were] determined to defend the principles of representative democracy, of the rule of law, of social justice — which is the ultimate goal of economic progress — and of respect for human rights”, all of these being fundamental elements of the European Identity (Council of Ministers, 1973). In its opinion on the Greek application, in 1976, the Commission reiterated that “given […] Greece’s return to a democratic form of government, there can be no doubt, in the view of the Commission that the Community must now give a clear positive answer to the Greek request” and concluded that “the consolidation of Greece’s democracy which is a fundamental concern not only of the Greek people but also of the Community and its Member States, is intimately related to the evolution of Greece’s relationship with the Community”. (European Commission, 1976). The military coup in Turkey in 1980 also led, albeit belatedly and with reluctance, to the freezing of the country’s association agreement with the EEC.

Rule of law, as one of the fundaments of European integration, appeared in the considerations of the (then) European Court of Justice in its Opinion 1/91 on the EEA agreement, in 1991, which admitted that the EEC Treaty, albeit concluded in the form of an international agreement, none the less constitutes the constitutional charter of a Community based on the rule of law.

This requirement become clearer with the Treaty of Maastricht. Article F provided in paragraph 2 that “the Union shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms […] as general principles of Community law”. Almost in parallel, the newly-founded EU set up the so-called Copenhagen criteria to clarify the conditions for accession, in particular for countries of Central and Eastern Europe: the 1993 Copenhagen European Council while agreeing that these countries “that so desire shall become members of the European Union” added a number of conditions, among them that “membership requires that the candidate country has achieved stability of institutions guaranteeing democracy, the rule of law, human rights and respect for and protection of minorities” (European Council, 1993).

Through successive EU treaty amendments, primary EU law also became clearer and more compelling. Attachment to the principles of rule of law is underlined in the preamble of the Treaty of Lisbon and became one of the foundational values of the EU in Article 2. In addition, adherence to, and commitment to promote the values or Article 2 were elevated into a formal condition for membership, as prescribed in Article 49 TEU.[4] In a parallel development and in recognition that rule of law should not only apply to candidates but also to member states, sanctions for its violation by member states were gradually introduced. The EU was enabled, albeit through a cumbersome and difficult procedure, to suspend the membership rights of member states whenever the values of article 2 TEU were being violated or, after the Treaty of Nice, there was a serious threat of them being violated. What is now Article 7 TEU introduces a permanent mechanism to monitor, among others, respect by member states of rule of law.

Political developments in some EU Member States which put at risk important rule of law elements at national level, increased the significance of rule of law in the EU legal order: the Union started looking at states’ performance that challenged its governance and good administration requirements. Thus, the concept, which originally was not clearly defined, gradually acquired more concrete features. Although the term continues to be understood in a slightly different manner by the various national legal orders, EU law, CJEU caselaw and doctrine have identified certain common qualities: among others the limitation of government by the law, changes of law following prescribed procedures, laid down in advance and publicly, the existence of legal remedies before an unbiased and independent judiciary, proportionality, and constitutionalism (EPRS, 2019). In various cases, starting with Associação Sindical dos Juízes Portugueses (C-64/16), and in particular the two Commission cases v Poland (C- 619/18 and C-192/18), CJEU confirmed, as settled caselaw, that the Union is founded on the rule of law principle and in the last case underlined that the independence of courts is 

of cardinal importance as a guarantee that all the rights which individuals derive from EU law will be protected and that the values common to the Member States set out in Article 2 TEU, in particular the value of the rule of law, will be safeguarded (paragraph 106).

Thus, during recent years, especially, after 2018, the “existential threat to the functioning and long-term survival of the EU legal order” obliged the CJEU to deal more extensively with the values of Article 2 TEU and “to mobilise [these fundamental values and principles] to progressively articulate a more comprehensive, coherent, and effective system of rule of law protection” (Pech-Cochenov, 2021, 14). In this process, the Court reshaped the meaning and scope of the rule of law principle which now can be much better applied both internally and in accession negotiations. In one of its latest cases regarding rule of law, Repubblika v Il-Prim Ministru (C-896/19), the Court further stressed that

compliance by a Member State with the values enshrined in Article 2 TEU is a condition for the enjoyment of all of the rights deriving from the application of the Treaties to that Member State. A Member State cannot therefore amend its legislation in such a way as to bring about a reduction in the protection of the value of the rule of law’ (paragraph 63).

Rule of law in accession negotiations

The centrality of rule of law requirements for the countries that aspired to join the European Union was clear from the start: the Copenhagen criteria were introduced specifically to provide more specific conditions to the very general at the time accession provisions of the Treaty and to assuage, to some extent, fears that states with weak or unstable democratic foundations could join the EU. In practice, the political criteria, in particular the state of democracy in the accession countries, gradually took precedence over the other criteria, at least in the EU prerequisites (Kochenov, 2004). The 1997 Luxembourg European Council (12-13 December 1997) set up the European Conference which opened negotiations with the countries of Central and Eastern Europe and, in its conclusions, it went further and specified more clearly that “compliance with the Copenhagen political criteria is a prerequisite for the opening of any accession negotiations” (European Council, 1997,25).

The first enlargement negotiations following the adoption of these criteria (to the Scandinavian countries and to Austria) did not raise any major issue regarding rule of law, and relevant discussions went relatively smooth.[5] The following wave of accession negotiations with the countries of Central and Eastern Europe was more complicated for the EU, both because of the size of the enlargement envisaged and due to the weaker democratic institutions and failings in rule of law among several of these countries. In this context, two specific negotiating chapters were shaped with the aim to assist enlargement countries to establish a society based on rule of law and to measure their progress in that area: chapter 23 (Judiciary and Fundamental Rights) and chapter 24 (Justice, Freedom and Security) covered a wide variety of issues, in the fields of justice, internal security, fundamental rights and the fight against corruption and organized crime.

Rule of law turned even more problematic during the subsequent accession negotiations, with Bulgaria and Romania, which were considered to suffer from widespread systemic corruption and to lack sufficient breadth in their national constitutional systems to guarantee steady and permanent adherence to these principles. Croatia’s accession was also marred by issues relating to the rule of law, mostly due to its unsatisfactory cooperation with the International Criminal Tribunal for the former Yugoslavia (ICTY) and general corruption allegations – and border issues with Slovenia (Szpala, 2011).

In a recognition that rule of law was an absolute prerequisite for accession and, to a large extent, to alleviate fears that the EU would accept states which could later turn rogue or fall victims to corruption and maladministration, the EU introduced the Cooperation and Verification Mechanism (CVM) for Bulgaria and Romania. The Mechanism, although conceived as a transitional measure to assist the two countries to remedy these shortcomings, was a testimony to the fact that these two countries had not achieved sufficient progress in the fields of judicial reform and corruption, as well as the fight against organized crime for Bulgaria. Still the outcome demonstrated that political considerations were, in the event, more decisive and conclusive to the acceptance of their membership, sidestepping the rule of law criteria set by the very EU.

Nevertheless, the accession negotiations with these two countries demonstrated that, in fact, there was little direct relationship between improvements in rule of law and the progress in these negotiations: the EU was caught in a “Rule of Law dilemma” (Nicolaidis -Kleinfeld, 2012, 15). A clear end-based approach might be considered as aiming to stall enlargement as no state could sufficiently prove its rule-of-law credentials. A means-based reading of the Copenhagen criteria would bypass benchmarks and obligations in favour of a longer-term perception of these conditions. In either case, it proved difficult to use in an objective manner the criteria in the context of 2004 and 2007 enlargements. Political considerations eroded the mere enunciation of the principles, and it was, in both cases, more the avowed declarations of governments rather than objective developments that finally led the way.

The EU enlargement to the Western Balkans

Discussions on EU enlargement to the Balkan countries which were not members of the EU, generally called Western Balkans[6], date back to 1999. To establish a cooperation framework with the Balkans, the EU adopted the Stabilisation and Association Process to govern its relations with the countries of the region. Later, the Stability Pact for Southeastern Europe became a broader initiative involving all key international players of the region aiming to provide an economic and political perspective for the Balkans. At the first EU-Western Balkans summit meeting, in Thessaloniki in June 2003, the two sides confirmed their attachment to “the values of democracy, the rule of law, respect for human and minority rights”. The final declaration endorsed the EU’s “unequivocal support to the European perspective of the Western Balkan countries” and next day’s European Council confirmed “its determination to fully and effectively support the European perspective of the Western Balkan countries, which will become an integral part of the EU, once they meet the established criteria” (European Council, 2003, point 40).

Despite this commitment, the region’s European perspective remains quite illusory even today.  The “established criteria” are still far from being considered to have been “met”. It took a long time for the Western Balkans to apply for membership and even longer for formal negotiations to start. Twenty years after Thessaloniki, only two countries, Serbia and Montenegro, have officially opened accession negotiations and even with these two countries, discussions have stalled. In July 2022, the first intergovernmental conferences on accession negotiations took place with North Macedonia and Albania, following the resolution of Bulgaria’s veto over the former country’ s accession.

Montenegro, which became independent in 2006, applied for EU membership in December 2008, was granted candidate status in December 2010 but was the first to open accession negotiations in June 2012. Serbia submitted its application in December 2009, was granted candidate status in March 2012 and accession negotiations opened in January 2014. North Macedonia was the first Balkan country to apply for membership (as the former Yugoslav Republic of Macedonia in March 2004) and was granted EU candidate status in December 2005. For many years, though, it was unable to open accession negotiations due to the dispute with Greece over the country’s use of the name ‘Macedonia’. Even after the resolution of this issue, in 2018, the Council failed to authorize the effective start of these negotiations mainly, but not exclusively, due to the opposition of Bulgaria which was only raised in June 2022. Albania applied for EU membership in April 2009 and was granted candidate status in June 2014. Although the Commission had recommended to open accession negotiations with the country already in 2016 (and again later), the Council did not authorize this till March 2020. Again, and despite the Commission’s draft negotiating framework, the opening of the talks was delayed due to the obstruction of the negotiations with North Macedonia.

Finally, Bosnia and Herzegovina (BiH) and Kosovo are further behind.  Today they qualify as potential candidate countries. Both have established a Stabilisation and Association Agreement with the EU and BiH submitted its membership application in February 2016. The case of Kosovo is complicated because of the dispute with Serbia and the fact that five EU member states have not recognized Kosovo’s independence and Kosovo has not been included in the EU visa liberalization regime.

The delays are due to inherent problems with the countries of the region – notably rule of law issues- and to the EU’s less than wholehearted embrace of further enlargement. The EU’s “enlargement fatigue”, following the 2004 accessions, has a persistent impact on accession discussions of the Western Balkans. This fatigue is strengthened by retrospective assessments of Bulgaria and Romania’s governance capacity which conclude “that ‘they were not ready’ to join in 2007 and that the EU should not have admitted them as members” (O Brennan, 2014, 225). The botched efforts to bring these two countries into the EU while their economies and state structure were insufficiently prepared and adapted to the EU norms, reverberate in accession negotiations both among the member states and, increasingly, among their citizens.

In addition, the various crises that the EU faced after the last enlargement (the eurozone crisis, Brexit, the refugee emergency, and the pandemic) weakened, in general, the EU’s appetite – and capacity- for expansion. The crises also modified the power relations within the EU, weakening the role of the Commission in favour of intergovernmental institutions (both the Council and, especially, the European Council). In enlargement politics this change meant that national politics, and even more domestic considerations, took more prominence in accession talks. This was already viewed with the Slovenian veto to Croatia’s accession on the grounds of their border dispute and, till recently, in Greece’s (till 2018) and Bulgaria’s more recently blocking the start of negotiations with North Macedonia over issues of the country’s name in the former case and identity, language and history in the latter (among others, the latter country’s failure to recognize an ethnic Bulgarian minority and disputes over the origins of the Macedonian language).

In parallel, European public opinion grew significantly cooler over enlargement. Replies to the standard Eurobarometer question whether “Further enlargement of the EU to include other countries in future years” gave increasingly negative answers. In autumn 2016 39% of EU28 citizens were in favour of further enlargement, as opposed to 51%. Only 28% among French and 25% among Germans supported enlargement. (Eurobarometer 86, 2016). In 2003, those supporting enlargement were 47% and those against 32% (Eurobarometer, 61, 2003). Although this erosion of support did not particularly refer to the Western Balkans but rather to Turkey – and, before the Russian invasion, Ukraine – it echoed in political positions at national and European levels. France introduced, in 2008, a constitutional provision that would allow the president to submit to a popular referendum any accession of a new country to the EU. In 2019, the same country blocked accession talks with Albania and North Macedonia and suggested a renewed approach to the accession process (which led to the Commission’s new methodology).

Reflecting this erosion, in his statement in the European Parliament plenary session ahead of the vote on the College of Commissioners newly-elected Commission President Jean-Claude Juncker put an official hold on the accession and stated that “there will be no new members during this Commission’s term of office: it is totally unfeasible” and stressed that the EU “must not let those waiting at the door think that it might open in the next five years” (Juncker, 2014). He qualified this negative since “enlargement negotiations will continue with the same vigour, the same drive, the same commitment as in the past”. In his 2017 State of the Union address, he  re-affirmed that “If we want more stability in our neighbourhood, then we must also maintain a credible enlargement perspective for the Western Balkans” (Juncker, 2017). But the message that went through to the Balkan countries was that despite their efforts, accession would be a very long and distant goal.

Rule of law in the EU enlargement to the Western Balkans

Already then, Juncker had underlined that candidates should “give the rule of law, justice and fundamental rights utmost priority in the negotiations.” Concerns over the rule of law violations among member states who had joined after the 2004 and the 2007 enlargement, turned rule of law issues into one of the most central elements of the accession talks with the Western Balkans. Already in 2011, the EU identified strengthening the rule of law “as a continuing major challenge and a crucial condition for countries moving towards EU membership” (European Commission, 2011, 5). The issue has been given greater attention and the rule of law chapters – Chapter 23 on judicial reform and fundamental rights and Chapter 24 on freedom, security, and justice – were opened at an early stage in the negotiations both for Montenegro and for Serbia.

In the 2018 Strategy for the Western Balkans, the Commission set an indicative date for the accession of Serbia and Montenegro which could “potentially be ready for membership in a 2025 perspective” (European Commission, 2018, 2).  In 2020, the European Commission adopted a revised methodology on accession negotiations. The aim is to enhance the accession process based on four principles: “credibility, predictability, dynamism and stronger political steer”. In practice the new methodology groups the accession chapters into six groups of issues (“clusters”), making negotiations more overarching and comprehensive and is supposed to act as an incentive on the side of the accession countries to accelerate their reforms and allow to move negotiations faster if they deliver faster (European Commission, 2020).

The policy of “fundamentals first” means that that political, economic, and institutional fundamentals are indivisible and mutually reinforcing. Thus, the Commission gives emphasis on the effective implementation of rule of law rather than mere legislative reforms and in mainstreaming rule of law. The revised accession methodology adopted in 2021 renders rule of law even more central in the accession negotiations, for example through the mainstreaming of anti-corruption measures. As the Commission text stipulates “negotiations on the fundamentals will be opened first and closed last and progress on these will determine the overall pace of negotiations” (European Commission, 2020, 3). In addition, these negotiations will include a “roadmap for the rule of law chapters equivalent to the previous action plans” which will be considered as “the opening benchmark”, as well as interim benchmarks. The conditionality is reinforced by the assertion that no other chapter will be provisionally closed before these benchmarks are met (European Commission, 2020).

The ongoing negotiations with Serbia and Montenegro were adapted to cater for the requirements of the new methodology although the content of the negotiations did not fundamentally change. The intergovernmental conference on the accession negotiations with Albania and North Macedonia which opened in July 2022 adopted fully the new methodology.

It is true that in the years after the 2004 accession, the content and the contours of rule of law have become clearer; relevant discussions are currently more evidence-based than in the past. Since the 2000s an increasing number of indices on rule of law, democracy, human rights, and good governance have been compiled and represent useful tools in assessing rule of law. The World Justice Project Rule of Law Index[7], the Bertelsmann Transformation Index[8], the World Bank Worldwide Governance Indicators[9] and Freedom in the World[10], among others,allow to measure better and more accurately the level of rule of law achievements of countries and to assess the Commission’s own assessment of countries, allowing for better accountability.

One lesson of the previous enlargements was that rule of law reforms focused on legislative or even constitutional changes, usually with outside technical assistance, rather than in changing the state’s legal philosophy.  Thus, reforms remain often in paper only and lack effective implementation. This is often because they are adopted under EU pressure with little effective “reform ownership” from the part of the state. Thus, laws are either ignored or there is simply no capacity enforce them. For laws to be effective they must “be supported by a strong State that enforces laws across the whole of its territory—an assumption that is rarely justified” (Nicolaidis – Kleinfeld, 2012,18).

As a result, the emphasis in the negotiations with the Western Balkans was to establish an ongoing “rule of law dialogue with the countries of the Western Balkans […in order to…] strengthen preparations at earlier stages of the pre-accession process, based on in-depth analyses of the justice and home affairs sectors” (European Commission, 2011, 6)

In a wider context, adopting and adapting to the EU acquis has become one of the main problems in accession countries, because of the sheer size of the acquis and the proliferation of the required new legislation. As a result, legislation is often adopted by candidate countries indiscriminately by merely copying EU legislation which does not necessarily fit their specific needs and frequently requires subsequent legal adaptation. Paradoxically, this increases legal uncertainty among citizens and businesses as to the actual legal framework. This is true for economic reforms and for rule of law and one main contentious issue in the case with the Western Balkans.

The regular European Commission enlargement reports point out to substantive deficiencies in the Balkan states regarding rule of law. Despite the courageous efforts and the technocratic language of these reports, these deficiencies largely remain the same through these years: “an increasingly hostile environment for civil society, freedom of expression and freedom of the media, and attempts to exercise undue influence and political interference on the judiciary”, a “sound enforcement of anti-corruption frameworks” and the mainstreaming of corruption measures, “coherent and consistent efforts to contain and effectively address elements of state capture”  (European Commission, 2022A, 8). These statements are not particularly different from previous years. The Commission’s 2019 regular enlargement communication stressed the region’s “shortcomings” related to “a lack of political will, institutional resistance and an increasingly hostile environment for civil society”, “the existence of certain elements of state capture”, “instances of widespread corruption”, “the ineffectiveness of criminal procedures, giv[ing] strong signals of impunity, and contribut[ing] to the risk of criminal infiltration of the political and economic systems” (European Commission, 2019, 4). Issues such as the need for an independent and impartial judiciary, the reduction of ruling by decrees, timely delivery of justice and enforcement of judicial decisions are also often mentioned in EU reports regarding Western Balkans.

Despite some improvement in some of these areas, most of the shortcomings identified are always present in the Balkans and have marred negotiations. Of course, it is not only rule of law that is an obstacle to accession: neighborly disputes, inter-ethnic tensions and the unstable economy are all contributing to the difficult road of the Western Balkans towards the EU. The unfulfilled promises of EU accession weaken the attractiveness of reforms. On the Western Balkans, there is no discernable trace of the virtuous circle that allowed the adoption and permanence of reforms in rule of law and in the economy because of the accession perspective. In fact, what can be seen in the countries of the region is “democratic stagnation” (Bieber, 2019) or even “backsliding”, for instance in the case of Serbia. The accession paradigm does not seem to work in these countries’ case, either because the level of state capture is higher or because the accession perspective is perceived to be unreal or unrealistic. As Bechev puts it “the region does not generate sufficient levels of instability to disrupt or threaten the EU” and the latter prefers the, albeit imperfect, status quo to a bold move (Bechev, 2022).

But status quo does not seem to be a lasting one. The Balkans are increasingly attracted by populist rulers with an authoritarian streak, a practice that has led to the establishment of a new type of illiberal political system “that formally commits to EU integration […] but continues to govern through informal rules and clientelism” (Kmezić, 2020, 56).

Rule of law after the Russian invasion to Ukraine

The Russian war of aggression to Ukraine, besides its devastating effect on the country itself and international relations, changed considerably the EU – and the West’s – security priorities. Ukraine (together with Moldova and Georgia) applied for membership to the EU and the widespread support for the country’s resistance led to a speedy recognition of Ukraine’s (and Moldova’s) candidate status by the European Council of June 2022 which invited the European Commission “to report to the Council on the fulfilment of the conditions specified in the Commission’s opinion on the membership application as part of its regular enlargement package” (European Council, 2022, point 12). The European Council emphasized that “The progress of each country towards the European Union will depend on its own merit in meeting the Copenhagen criteria, taking into consideration the EU’s capacity to absorb new members” (point 14). Rule of law was not specifically mentioned in what admittedly was a general, quite political, commitment – although immediately below in its conclusions regarding the Western Balkans, the Council reiterated the “the importance of reforms, notably in the area of rule of law and in particular those related to the independence and functioning of the judiciary and the fight against corruption” (point 17). The Commission’s opinion on Ukraine’s application although it concluded that “Ukraine is well advanced in reaching the stability of institutions guaranteeing democracy, the rule of law, human rights and respect for and protection of minorities” and recommended that “Ukraine be granted candidate status” stated that this would be “on the understanding” that a number of steps would be taken. Almost all referred to rule of law issues, such as the implementation of legislation on the selection procedure for judges of the Constitutional Court, strengthening the fight against corruption, ensuring the implementation of anti-money laundering legislation, implementing the Anti-Oligarch law (European Commission, 2022B, 20).

The same June 2022 European Summit conclusions on the Western Balkans did not modify officially the EU’s stance on rule of law for the Balkan countries: the Council confirmed its “full and unequivocal commitment to the EU membership perspective of the Western Balkans” but referred to the revised methodology and the “importance of reforms, notably in the area of rule of Law” for the countries.

Ukraine has altered the EU’s (and Europeans’) view of the world. The conviction that Europe must be “geopolitical” was already a mantra for the Von Den Leien Commission but, the Russian aggression made clearer to European leaders and to Europeans that politics, rather than the economy and trade relations, should drive EU policy-making. A clear expression of this approach was the establishment of the European Political Community, an intergovernmental forum conceived to foster political dialogue and cooperation, to address issues of common interest and to strengthen the security, stability and prosperity of the European continent.

 The crisis also made clear to Europeans that what Bieber (2018) called “stabilitocracy”, i.e. the European support to Balkan regimes that claimed to provide stability domestically and to espouse the European values while maintaining strong authoritarian trends and a dubious rule of law record was not viable in the long and even medium term: although tacit support for Russia, a traditional ally, was stronger in Serbia,  few politicians throughout the Balkans took a strong stance against the Russian aggression. The geopolitical developments became another puzzle for the EU’s enlargement policy towards the Western Balkans and for rule of law requirements, in particular. On the one hand, it became urgent to provide a viable path to accession that might deter the Russian and Chinese influence on the region. The unblocking of accession negotiations with North Macedonia was a tangible step towards the first direction. But a geopolitical emphasis also comes with discounts in other areas: to what extent should the EU tone down its rule of law requirements to address the security concerns over its southeast flank? The argument – an easy one to explain but much harder to implement – should be that the EU is stronger and therefore more attractive to candidates when it defends democratic values and rule of law within and outside its border. But this is not argument that would appeal to many leaders in Western Balkans and would seem ironic to many citizens of the region.

Conclusions

As rule of law becomes challenged within its borders, the EU tries to be more demanding from those states that request to join the EU. The Commission (2014, 1) underlined that “the rule of law is the backbone of any modern constitutional democracy” and “one of the main values upon which the Union is based”. This development renders rule of law prerequisites of paramount value for accession to the EU. In assessing observance of rule of law for Western Balkans countries, the EU tries to implement a multi-fold strategy which does not always sound coherent. It must mollify public unease over further enlargement, protect the EU from potentially illiberal or merely institutionally weak regimes trying to join the EU, provide a push for sustainability in institutional reforms and serve wider political objectives, in particular anchoring the countries of the Western Balkans to the EU enterprise. This strategy, up till now did not succeed.

Of course, rule of law requirements from candidate countries are not new: they equally applied to previous enlargements, too. But the outcome of those negotiations was not coherent. Although the EU had fleshed out specific conditions for democracy and rule of law, political considerations, especially at the time of the 2004 enlargement, took precedence. In the run-up to the accession, politics sidestepped substantive application of the democracy and rule of law criteria. During the 2004 negotiations, the EU put the rule of law threshold so low that, ultimately, the criterion was disregarded. To a large extent, “in the end the requirement to have the institutions guaranteeing democracy and rule of law in place was very similar to a formal condition applied in the previous enlargement rounds” (Kochenov, 2004). Political considerations prevailed even more during the 2007 and 2013 accession negotiations. The establishment of the Cooperation and Verification Mechanism was the proof that the Copenhagen requirements could be bent if sufficient political will was exercised upon the EU institutions.

The negotiations with the Western Balkan countries take place on these contradictory foundations. Enlargement fatigue and Euroscepticism means that rule of law is seen (and sometimes used) as a means to postpone (indefinitely) enlargement. This mentality defeats the purpose of the accession negotiations – to strengthen in a steadfast manner democratic resilience in these countries. Although the EU, in particular the European Commission, provide extensive analysis of the rule of law failings in these countries, the reluctance to enlargement is less linked to these specific failings but rather to a wider “enlargement fatigue” and to national considerations among member states. There is certainly a widespread apprehension over other “Hungaries” joining the EU but the opposition – and support – for accession is not linked to the progress or delay observed in each country regarding the Copenhagen criteria but to an, often prejudiced, view over these states.

Thus, Balkan countries and governments see the goalposts being moved during the game and become disillusioned. In fact, the erratic manner by which the EU applies the Copenhagen political criteria weakens domestic pressure in favour of necessary reforms. Reforms are perceived as a ritualized process rather than as a required change of the mentality of states and societies who realize that other paths, support from member states, successful diplomatic initiatives or even the international context, might be more useful for their accession efforts.

In fact, rule of law has deteriorated in almost all Western Balkans during recent years. Looking at the overall Rule of Law score over time of the World Justice Project Rule of Law Index[11], in five out of the six states of the region there has been a deterioration of rule of law indicators with only Kosovo remaining stable. This does not bode well for the consolidation of rule of law before (or even after) EU accession.

As Kmezić (2020, 59) puts it “conditionality works well if membership criteria are clear, if the same criteria are applied to all applicants, if they are strictly but fairly monitored, if the findings are transparently communicated and if there is no doubt that the reward will come once conditions are met”. Evidence shows that this is not the case with the Western Balkans, increasing mutual mistrust.

The consequence of this is that Western Balkan countries turn to other alternatives which provide easy funding, do not ask many questions, and allow for the governing nomenklatura to continue ruling in a state capture context. Russia, but also Turkey and the Gulf states, and, increasingly, China provide various forms of financial and political support that compete and oppose the European approach. In the EU the anti-enlargement mood further complicates relevant discussions, and it is partly responsible for democratic backsliding in the Balkans, thus creating a vicious circle (Walldén, 2017).

The Russian invasion of Ukraine reminded the EU – and, more importantly some of its more reluctant member states – of the geopolitical value of the Western Balkans and the need to “anchor” the region more decisively in the EU, limiting the scope for third powers (such as Russia) to foment tensions in the region. The immediate outcome was the reinvigoration of accession talks with the return of a more dynamic European diplomacy towards the region. The unblocking of the accession path of North Macedonia and Albania was the most visible example of this change of mentality.

In the end, enlargement is eminently a political decision, both for the EU and for the candidate state. If the EU considers that there are superior interests at stake, economic, geopolitical or political, it may – and did – interpret widely the rule of law criterion in the hope that participation in the EU will enhance and solidify the fragile democratic institutions. It worked in most cases of the 2004 enlargement. It did not work fully in 2007. The case of the Western Balkans seems to lead towards the latter rather than the former scenario. But geopolitical considerations are impending, perhaps more urgently now than before. And the EU – and its member states – are more uncertain today than in the past as to where they want to head το.

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[1] Ioannis Papageorgiou  is Professor  School of Political Sciences Aristotle University of Thessaloniki, Greece

[2] It should be noted that the failed Treaty setting up a European Political Community of 1952 (which was drafted as a follow-up to the European Defence Community) stated in its preamble that member states were “determined to invite other European Peoples, inspired with the same ideal, to join with [them] in [their] endeavor” and in article 116(1) it provided that “accession to the Community shall be open to the Member States of the Council of Europe and to any other European State which guarantees the protection of human rights and fundamental freedoms…”.

[3] According to point 1 of the resolution (in French) the EP « constate que l’accord d’association entre la Communauté européenne et la Grèce, qui prévoit l’adhésion ultérieure de ce pays à la Communauté, ne pourra être appliqué dans ses différentes phases que si les structures démocratiques et les libertés politique et syndicale sont rétablies en Grèce ».

[4] The first paragraph of article 49 TEU stipulates that “Any European State which respects the values referred to in Article 2 and is committed to promoting them may apply to become a member of the Union”.

[5] The only reference to rule of law in the Commission’s opinion on the accession of Sweden (31 July 1992) was the sentence “Sweden’s democratic traditions and human rights record are as valid as her important place in European history and culture”.

[6] The term, in this paper, comprises the six Balkan states which are not yet part of the EU: Albania, Northern Macedonia, Montenegro, Bosnia Herzegovina, Serbia and Kosovo. It is not, as the adjective denotes, include a geographical connotation; rather, it was coined by the EU to collectively qualify those countries in the Balkan peninsula which were not (yet) members of the European Union. As such, it is a political term: the group tends to shrink as countries will join the EU. For instance, Croatia, probably the westernmost Balkan country, ceased to be included in the group after its accession to the EU in 2013.

[7] https://worldjusticeproject.org/rule-of-law-index/global/2022

[8] https://bti-project.org/en/?&cb=00000

[9] https://info.worldbank.org/governance/wgi/Home/Documents

[10] https://freedomhouse.org/issues

[11] World Justice Project, rule of law rankings in  https://worldjusticeproject.org/rule-of-law-index/global/2022