The Impact of EU Enlargement Policy on Rule of Law Reforms in the Western Balkans

On 31 August, The Hague Institute and the European Commission Directorate-General for Neighborhood and Enlargement Negotiations (DG NEAR) hosted a high-level panel discussion concerning the impact of EU enlargement policy on rule of law reforms in the Western Balkans. The implementation of the “fundamentals first” approach in the accession negotiations to Chapter 23-Judiciary and fundamental rights and Chapter 24-Justice, freedom and security, introduced by the European Commission in 2012, prioritizes reforms in the rule of law field, ensuring they are addressed as early as possible in the accession process. This allows the countries to build up a track record of concrete results ensuring the sustainability of reforms before accession. What encouraged the conception of this approach? What lessons have been learned so far and what results achieved? And what is the current state of affairs in the Western Balkan countries?

Nikola Dimitrov, Distinguished Fellow at The Hague Institute, noted in his introductory remarks how the European Union has shifted to a “strict and fair” approach to the enlargement process with a view to strengthen its credibility and transformative effect. At the core of this improved conditionality is a primary focus on fundamentals: the rule of law, responsible economic governance and public administration reforms. Additionally, DG NEAR introduced a new style of reporting, encouraging more precise status reporting in the target countries, better guidance, and easier comparison and healthier competition between aspiring members, as well as transparency and accessibility for all stakeholders in the process.

Unfortunately, as Dimitrov stated, support for enlargement is shrinking. “Enlargement fatigue”, coupled with migration, Brexit and questions over the 2004 and 2007 enlargements, have driven public opinion away from enlargement – particularly in member states like Germany and Austria. The new approach was drawn up to renew trust among EU member states in the viability of the enlargement process.

In his comments, Allan Jones, Head of Strategy with DG NEAR, described in more detail the reasoning behind the newly conceived enlargement policy. Accession, he argued, remains a driver for change in countries that the European Commission deal with. However, shortcomings characterized the accession process. Reforms were not implemented in sustainable ways, highlighting the need to rethink how to encourage and improve the enlargement process.

Jones detailed a number of solutions developed. In particular, countries are given more time to show a track record of reform implementation. To this end, new tools were introduced: interim benchmarks, rather than only opening and closing benchmarks, allow recalibration while the process is ongoing; a balanced approach to reform, where all change happens simultaneously in various sectors, ensures that rule of law reform does not lag behind technical work on specific subjects; and increasing linkages between horizontal reform aspects, including the rule of law, economic governance and public administration reforms, enhance all the fundamentals of reform. Finally, Jones reiterated the value of improving annual reporting to increase comparability.

Understanding the amount of time necessary to transform the rule of law in a country is crucial to the enlargement discussion, argued Eeuwke Faber, Head of External EU Policy at the Dutch Ministry of Foreign Affairs. Even with the best of intentions, he noted, it takes much time to reform the justice sector, especially to ensure reforms are sustainable and make a substantive impact. Thus, in order to safeguard the durability of reforms, the EU and its member states must be strict.

However, Faber explained, enlargement cannot be the sole driver for introducing reforms. Enlargement is a powerful tool, and conditionality is helpful to fostering lasting change, but expectations cannot be too high. The primary responsibility for progress ultimately lies with the elected leaders of the countries hoping to join.

Gerald Knaus, founding Chairman of the European Stability Initiative, reiterated that enlargement is getting less popular. Despite the honest and noble intentions over the past decades, the attitudes toward European enlargement are souring. Two of the countries that have been in the process the longest, Turkey and Macedonia, are showing the strongest signs of regression from EU values. Does this mean that EU enlargement policy is not the transformative force that was envisioned?

It is not at all clear that the accession process creates democracy, the rule of law or strengthens fundamental rights. Furthermore, there are currently substantial challenges to the rule of law within the EU itself: the Polish constitutional court reforms; human rights in Hungary; the French state of emergency. What is needed, Knaus argued, is a better process. This process must be credible to EU audiences, visibly transforming countries or transparent about what is missing in the target states. It must work for all countries equally, without prejudice. And finally it must reinforce “red lines” that states cannot cross without forfeiting the continuity of the accession process.

Questions from the audience followed the discussion, asking how Europe will counter the negative attitudes to enlargement, examining the meaning of red lines and what this would entail, and why there is currently a disparity between candidate countries in the status of negotiations.

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