It’s the Rule of Law, stupid…

Dit artikel bevat figuren en tabellen. Lees het pdf om de tabellen te bekijken. The European Union still largely is an economic project. The current crisis however suggests that more is needed – a political and perhaps even ‘cultural’ union. If Europe is serious about being a community of values, there is every reason to be critical towards accession of new member states from the Balkan area, says Robert Farla. First, the rule of law, and then the economy. Door Robert Farla The enlargement of the EU has long been seen as Europe’s most successful foreign policy instrument after the fall of the Berlin Wall. The prospect of EU membership helped the countries of Central and Eastern Europe in their development towards stable democracies and functioning market economies. This was both in the interest of the new members as it was for the European Union. With the impending expansion of the Balkan countries however increasingly doubt is casted whether it is in the interest of the EU to allow countries which have serious deficiencies in the rule of law to become members. If Europe is serious about being a community of values there is every reason to be critical and make sure that countries are not admitted too quickly. Enlargement: political and economic reasons The various enlargements of the EU have always had an economic and a political component. In the first period of enlargement in 1973 with the UK, Denmark and Ireland the EEC was mainly an economic community. Countries joined to take advantage of the internal market of goods, services, labour and capital. But geopolitical interests also played a role. The Netherlands, for example, were in favor of a UK membership as an Atlantic counterpart to France and Germany. The expansion with Greece in 1981 and Spain and Portugal in 1986 was also intended to protect these young democracies against a relapse. Once in the EEC, it was thought, the danger of a new coup by the army would quickly dwindle. This promise was kept. After the fall of the Berlin Wall in 1989 Europe shook to its foundations. The countries of Central and Eastern Europe were offered the prospect of European membership. Again, both political and economic reasons played a role. In 1993, the EU leaders in Copenhagen agreed on criteria these countries should meet before they could join. First of all they had to be stable democracies and respect the rule of law and human rights. These countries should also have a functioning market economy, and they should be able to cope with competition from the EU. Finally, they had to implement all the rules of the EU, the so called acquis communautaire. It is clear that the 2004 enlargement by as much as ten countries changed the character of the European Union. Bulgaria and Romania joined in 2007, which put the number of EU members at 27. The enlargement with these two countries has fundamentally changed thinking about enlargement. It is generally believed to have been the last wave of enlargement of the Union, where new members were admitted in groups. From now on countries would be admitted one by one and only if all the criteria were met. Also, two new chapters in the negotiations were added: chapter 23 on the judiciary and fundamental rights and chapter 24 on cooperation in the fields of justice and home affairs. Weak spot: the rule of law At the time Bulgaria and Romania joined, many in Europe thought that both countries still had weaknesses in the rule of law. The independence of the judiciary was insufficiently guaranteed and both countries were still struggling with widespread corruption and organized crime. In order not to block membership, however, a mechanism to monitor both countries was introduced: the Cooperation and Verification Mechanism (CVM). With this mechanism, the European Commission reports twice a year on the progress made by Bulgaria and Romania. But nearly five years after accession the Commission concludes that much has been achieved, but that results still fall short. This conclusion has major implications for the prospects of the countries in the Balkans that are still in the waiting room. For years it was thought that once a country was member of the European Union, its level of adherence to European standards would automatically rise. The example of Bulgaria and Romania shows that this is too optimistic. Instead, the Commission now proposes to start the enlargement negotiations with chapter 23 and 24. Thus, the Commission makes an important statement, namely that the rule of law is more essential than the other obligations of membership. A country that fails in this respect, is not applicable for membership. The Commission also says that by starting with these chapters more time can be dedicated to adopting and implementing European obligations in the field of the rule of law. Hence, the rule of law is no longer the final step in the integration process but the start of it. Where do the Balkan countries stand? Let’s have a look at where the countries on the Balkans and Turkey stand in the enlargement process1. On 12 October 2011 the European Commission presented its annual progress report on enlargement2. Croatia is clearly the front runner. In the summer of 2011, negotiations with Croatia were concluded and it was agreed that the country could join the EU by July 1, 2013 as its 28th member. A new mechanism, however, was introduced that monitors Croatia between the time of signing the accession treaty and its actual accession. If it turns out that the country shows a backlash, membership in theory could be at risk. This new instrument shows that many countries are not sure that the positive development that Croatia has made is irreversible. Negotiations with Turkey, which have begun in 2005, are in a deadlock. Although the country is undergoing an impressive economic development, the Commission is critical when it comes to fundamental rights and freedoms, in particular the assurance of freedom of expression in practice. Also, Turkey still has no normalized relations with EU member Cyprus, which is a precondition for Turkey’s accession. Macedonia is also an official candidate member. Negotiations have come to a standstill due to the name issue (with Greece). But apart from this, the Commission is of the opinion that weaknesses in the rule of law still continue to impede the proper functioning of the market economy. On Montenegro, the Commission is relatively positive. A lot of new legislation to strengthen the rule of law has been introduced. However, both policy and legislation implementation remains a challenge. Continuing efforts are needed to further develop the track record in combating corruption and organized crime, and to ensure the sound implementation of anti-discrimination policies, including for displaced persons, writes the Commission. Serbia could be granted the status of candidate member as far as the Commission is concerned, so that negotiations can begin. The Commission is positive about the legal framework, but critical of the implementation of legislation, in particular – yet again - when it comes to fighting corruption and organized crime. For Serbia, there is of course also the other obligation to normalize relations with Kosovo. As regards the other countries, Albania, Bosnia-Herzegovina and Kosovo, we can be brief. In the past year these countries have shown little progress in moving closer to the EU. Bosnia is imminent to fall apart. Kosovo has the problem that five EU countries do not recognize the country. In summary, there is not much to cheer when it comes to the rapprochement of the Western Balkans into the EU. This is disappointing, especially for the countries themselves. It seems that the expansion machine is slowly coming to a halt in the Balkans. This is primarily not in the interest of these countries themselves. But for the EU it is not desirable either. The Balkan is imminent to become a place of instability, surrounded by EU member states. European values? The good news, however, is that the European Commission, more than in the past, is now paying attention to the implementation of legislation, especially in the field of the rule of law. For years, the negotiations seemed mainly to consist of ‘ticking the boxes’. But it is one thing to adopt European rules; this says little about how they are implemented in practice. And that is exactly what is lacking in many Balkan countries, the Commission reports. Through monitoring ‘track records’ the Commission tries to measure progress. But even if the laws are adopted and implemented correctly, the question must be asked whether they have the desired effect. Countries should not only follow the rules because the EU tells them to do so, but because they share the European values. The EU is indeed first and foremost a community of values where the highest standards in the rule of law apply. For this reason it is important that Serbian citizens themselves recognize the need to put war criminals like Mladic and Hadzic to justice. It goes without saying that where it’s difficult to measure the implementation of a rule in the area of the rule of law it’s even more difficult to measure its impact. But if we take the European Union as a community of values seriously – as liberals should do - then we must be willing to look beyond the rules. We must develop methods to measure the state of law, press freedom and the protection of minorities. One such indicator may for example be the state of gay rights3. Where gay rights are respected, other individual rights are generally respected as well. The Commission in its progress report is especially critical about gay rights on the Balkans. Corruption and press freedom can also be measured. Figure 1 shows how a number of EU countries score on the Corruption Perceptions Index 2010 of Transparency International4. Figure 2 shows how these countries score in terms of press freedom5. From these two figures it is clear that the Balkans and Turkey are still far from the European average. If we now allow these countries to join the EU, the EU average on both indexes will go down, which means that Europe will have more corruption and less press freedom. The question whether Europe will be stronger after the accession of the Balkan countries should therefore be answered negatively. Community of values Enlargement of the European Union has always had two purposes: it served the interests of the applicant countries as well as the interests of the Union. Enlargement brought economic prosperity and stability, which served Europe as a whole. But the last wave of accession also showed the downside of enlargement; it has become an unfinished enlargement process Europe as a community of values. The Commission takes up this challenge and is more serious about the implementation of European rules, especially in the field of the rule of law. Liberals and those who believe in a stronger Europe would do Europe, the candidate countries and their citizens a favour by being strict when it comes to the rule of law. It doesn’t serve the interests of the EU nor the interests of the applicants if we turn a blind eye to deficiencies in this respect. We should learn from the lessons from the past. The candidate countries on the Balkans and Turkey need our support and a clear message: they are welcome when they make the necessary transformation and truly adhere to the values that are the basis of the EU.   Robert Farla is chairman of the International Democratic Initiative (IDI).   Heeft dit artikel uw interesse gewekt? Klik hier voor meer info en abonnementen. -- Dit artikel verscheen in idee nr. 6 2011: The rule of law en is te vinden bij de onderwerpen Europese Unie, internationaal en rechtsstaat.