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Revisiting the European Commission’s Approach Towards the Rule of Law in Enlargement

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Abstract

The article critically examines the European Commission’s conceptualisation of the rule of law in enlargement. Three main arguments are advanced. First, regarding the Commission’s understanding of the rule of law in the pre-accession process, it will be argued that it predominantly concentrates on legal-institutional reform. The article asserts that, although important, this particular focus fails to recognise that the rule of law is not only about the functioning of the (broader) legal sector, and the application and enforcement of law per se, but also about formal rule of law elements related to the quality of laws and regulations, as well as about societal orientation towards the rule of law and the will to respect it. Secondly, it will be argued that the EU’s pre-accession process does not sufficiently address the rule of law’s core formal elements, to the extent that its main focus is alignment with the acquis and changes made to domestic legislation are measured in terms of quantity and not quality. Thirdly, although the recent enlargement strategies and monitoring reports increasingly acknowledge the importance of societal transformation needed for the rule of law to take root in the applicant states, it will be demonstrated that this soft rule of law element has not (yet) been incorporated in the Commission’s understanding of and approach towards the rule of law.

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Notes

  1. The rule of law’s central position amongst the EU’s values was emphasised, inter alia, by Commissioner Reding, in the context of the debate on the rule of law and its specific importance for the Union, when she stated that ‘[r]espect for the rule of law is in many ways a prerequisite for the protection of all other fundamental rights listed in Article 2 TEU and for upholding all rights and obligations deriving from the Treaties.’ Viviane Reding 4 September 2013, The EU and the Rule of Law—What Next? http://europa.eu/rapid/press-release_SPEECH-13-677_en.htm. Accessed 1 Aug 2018. Moreover, in the context of the high-level meeting of the United Nations General Assembly on the rule of law at national and international level on 24 September 2012, the European Union issued a statement on its relation to the rule of law in which it called the latter one of the ‘pillars on which our European Union is built.’ José Manuel Durão Barroso 24 September 2012, Statement by Commission President Barroso at the High-level Meeting on the Rule of Law. https://www.avrupa.info.tr/en/news/statement-president-barroso-high-level-meeting-rule-law-2184. Accessed 1 Aug 2018.

  2. In the context of the rule of law framework, see the Commission Recommendation, C(2017) 5320 final, 26 July 2017 regarding the rule of law in Poland complementary to Commission Recommendations (EC) 2016/1374 and (EC) 2017/146. Further, see for example Grabbe and Lehne 2017.

  3. Recently, see Konstadinides 2017; Kochenov 2017; Schroeder 2017; Closa and Kochenov 2016; Barbou des Places 2016; Kochenov and Pech 2015; Douglas-Scott 2015, pp. 51–66; Bogdandy and Ioannidis 2014.

  4. See for example Hillion 2016, p. 59; Closa and Kochenov 2016, pp. 173–196.

  5. Nozar 2012, p. 2.

  6. Presidency Conclusions, Copenhagen European Council, 21–22 June 1993.

  7. Legally speaking, however, as the EU has gradually expanded and the body of enlargement rules and principles has developed in its wake, no enlargement round is identical to the previous one. For a brief analysis of the differences in procedure in the aforementioned articles, see Hoffmeister 2002, p. 91. Also see Hillion 2011, pp. 188–193.

  8. Presidency Conclusions, Essen European Council, 9–10 December 1994, Annex IV. Next to the formulation of the well-known 1993 Copenhagen criteria, the European Council further refined the accession conditions, notably at the summits of Madrid in 1995 and Helsinki in 1999. Presidency Conclusions, Madrid European Council, 15–16 December 1995; Presidency Conclusions, Helsinki European Council, 10–11 December 1999.

  9. Further on this argument see Hillion, 2010, and the subsequent commentary: Cremona 2010; Emmert and Petrović 2014, p. 1379.

  10. Hillion 2010, p.11.

  11. According to the strategy the Copenhagen criteria were progressively spelled out in short, medium, and long-term priorities in the so-called accession partnerships. to be met by the candidate states as a condition to their accession, each candidate’s performance was assessed in detail through annual reports. On the basis of these, increased financial support was linked to demonstrable progress and compliance with the criteria. In relation to the rule of law, this also meant that the fulfilment of the accession conditions became subject to systematic EU monitoring. Presidency Conclusions, Luxembourg European Council, 12–13 December 1997.

  12. Commission Communication ‘Enlargement Strategy and Main Challenges 2012–2013’ COM(2012) 600 final, 10 October 2012, p. 2.

  13. Presidency Conclusions, Brussels European Council, 14-15 December 2006, para 4.

  14. Bulgaria and Romania are still formally under post-accession monitoring under the Cooperation and Verification Mechanism, see Council Conclusions on the Cooperation and Verification Mechanism’ [2016] 7118/16 COVEME 4. For the latest round of progress reports see: Commission Communication ‘Report on Progress in Bulgaria under the Co-operation and Verification Mechanism’ COM(2017) 43 final, 25 January 2017; Commission Communication ‘Report on Progress in Romania under the Co-operation and Verification Mechanism’ COM(2017) 44 final, 25 January 2017.

  15. Commission Communication ‘Enlargement Strategy and Main Challenges 2006–2007’ COM(2006) 649 final, 8 November 2006, p. 6.

  16. Ibid. See also Negotiating Framework EU-Turkey, 3 October 2005, para 5; Negotiating Framework EU-Iceland, 1 December 2006, para 17; Negotiating Framework EU-Croatia, 3 October 2005, para 12; Negotiating Framework EU-Montenegro, 29 March 2012, para 4; Negotiating Framework EU-Serbia, 9 January 2014, para 22.

  17. Commission Communication ‘Enlargement Strategy and Main Challenges 2009–2010’ COM(2009) 533, 14 October 2009, p. 5.

  18. See for example Consideration 9 of the Preamble of IPA II (n 10); Commission Communication ‘Enlargement Strategy and Main Challenges 2014–2015’ COM(2014) 700, 8 October, 2014, p. 11.

  19. Ibid, p. 12.

  20. Negotiating Framework for Croatia, Luxembourg, 3 Oct 2005.

  21. Negotiating Framework for Turkey, Luxembourg, 3 Oct 2005.

  22. Technically, chapter 23 is a new chapter introduced in 2005 in the negotiations with Croatia and Turkey, entitled in full ‘judiciary and fundamental rights’, whereas chapter 24 has previously existed (under the former title of ‘cooperation in the field of justice and home affairs’).

  23. See also the Negotiating Framework for Montenegro, Serbia, and Iceland.

  24. See the Commission’s stocktaking of the work undertaken in the context of the Cooperation and Verification Mechanism over the past 10 years, Commission Report ‘On progress in Bulgaria under the Co-operation and Verification Mechanism’ COM(2017) 43 final, 25 January 2017; Commission Report ‘On progress in Romania under the Co-operation and Verification Mechanism’ COM(2017) 44 final, 25 January 2017.

  25. Commission Communication ‘Enlargement Strategy and Main Challenges 2011–2012’ COM(2011) 666 final, 12 October 2011, pp. 2–3.

  26. Commission Communication ‘Enlargement Strategy and Main Challenges 2011–2012’ COM(2011) 666 final, 12 October 2012, p. 5.

  27. Council Conclusions, General Affairs Council, 5 December 2011, 18089/11. See also Conclusions, European Council Brussels, 9 December 2011.

  28. Negotiating framework Montenegro, June 2012, para. 6.

  29. Commission Communication ‘Enlargement Strategy and Main Challenges 2011–2012’ COM(2011) 666 final, 12 October 2011, p. 5; Negotiating Framework for Montenegro, pnt. 22.

  30. Commission Communication ‘Enlargement Strategy and Main Challenges 2013–2014’ COM(2013) 700 final, 16 October 2013, p. 2.; Commission Communication ‘Enlargement Strategy and Main Challenges 2012–2013’ COM(2012) 600 final, 10 October 2012, p.3. Also see General EU Position—ministerial meeting opening the Intergovernmental Conference on the Accession of Montenegro to the European Union, AD 23/12, 27 June 2012.

  31. Commission Communication ‘Enlargement Strategy and Main Challenges 2013–2014’ COM(2013) 700 16 October 2013, p. 6.

  32. Commission Communication ‘EU Enlargement Strategy’ COM(2015) 611 final, 10 November 2015, p. 3.

  33. See also Commission Communication ‘2016 Communication on EU Enlargement Policy’ COM(2016) 715 final, 9 November 2016, p. 2.

  34. Commission Communication ‘A Credible Enlargement Perspective for and Enhanced EU Engagement with the Western Balkans’ COM(2018) 65 final, 6 February 2018; Commission Communication ‘2018 Communication on EU Enlargement Policy’ COM(2018) 450 final, 17 April 2018. See also the Council Conclusions on Enlargement and Stabilisation and Association Process, 26 June 2018, Council doc. 10555/18.

  35. COM(2018) 450 final, p. 2 [emphasis added].

  36. See, for example Tamanaha 2009, p. 4.

  37. Fuller 1969.

  38. Finnis 1980.

  39. Fuller 1969, p. 39; Finnis 1980, pp. 170–171.

  40. Raz 1979, pp. 214–218.

  41. See for example, Craig 1997.

  42. Dworkin 1980; Hayek 1944.

  43. See, for example, Ginsburg 2018, p. 49.

  44. Most prominently, Kleinfeld 2006, Kleinfeld 2012.

  45. See, for example, Tiede 2018, pp. 206–407.

  46. Tamanaha 2009, pp. 10–13.

  47. See for example, Shetreet et al. 1985.

  48. Tamanaha 2009, p. 12.

  49. Tamanaha 2009, pp. 10–11.

  50. Channell 2006, pp. 146–148.

  51. Kleinfeld 2012, p. 85; Golub 2006, pp. 119–126; Upham 2004, p. 281.

  52. Janse 2018.

  53. Nicolaides and Kleinfeld 2012, pp. 11–12.

  54. Carrera, et al. 2013, p. 21.

  55. See for example 1999 Regular Report Poland, 13 October 1999, p. 14; 2007 Progress Report Former Yugoslav Republic of Macedonia, SEC(2007) 1432, 6 November 2007, p. 12.

  56. See for example the 2002 Regular Report Czech Republic, p. 22; 2008 Progress Report Montenegro, p. 13.

  57. See for example 2002 Report Romania, SEC(2002) 1409, 9 October 2002, p. 25. For an example of the current pre-accession process, see 2016 Report Kosovo, SWD(2016) 363 final, 9 November 2016, p. 8; 2016 Report Serbia, SWD(2016) 361 final, 9 November 2016, p. 11.

  58. See for example the 2006 Strategy, in which it is stated that the Commission “is promoting greater awareness of how best to ensure the independence, impartiality and effectiveness of the judiciary and to prevent corruption.” Commission Communication ‘Enlargement Strategy and Main Challenges 2006–2007’ COM(2006) 649, 8 November 2006, p. 5.

  59. See for example 1999 Regular Report Poland, 13 October 1999, p. 14; 2002 Regular Report Romania, SEC(2002) 1409, 9 October 2002, p. 28; 2007 Progress Report Former Yugoslav Republic of Macedonia, SEC(2007) 1432, 6 November 2007, p. 12.

  60. See for example, 1999 Regular Report Poland, 13 October 1999, p. 15; 1999 Regular Report Slovenia, 13 October 1999, p. 59; 2000 Regular Report Romania, 8 November 2000, p. 92; 2001 Regular Report Latvia, SEC(2001) 1749, 13 November 2001, p. 17; 2005 Progress Report Croatia, SEC(2005) 1424, 9 November 2005, p. 15; 2010 Progress Report Former Yugoslav Republic of Macedonia, SEC(2010) 1332, 9 November 2010, p. 57; 2013 Progress Report Serbia, SWD(2013) 412 final, 16 October 2013, p 40; 2016 Report Albania, SWD(2016) 364 final, 9 November 2016, p. 40.

  61. See for example, 2002 Regular Report Latvia, SEC(2002) 1405, 9 October 2002, p. 22; 2013 Progress Report Montenegro, SWD(2013) 411 final, 16 October 2013, p. 37; 2013 Progress Report Serbia, SWD(2013) 412 final, 16 October 2013, p. 9.

  62. See for example, 2000 Regular Report Poland, p. 19; 2001 Regular Report Bulgaria; 2008 Progress Report Montenegro, p. 13.

  63. See for example, 2005 Progress Report Croatia, p. 84; 2012 Progress Report Serbia, p. 10; 2014 Progress Report Kosovo, SWD(2014) 306 final, 8 October 2014, p. 13.

  64. See for example, 2002 Regular Report Turkey, p. 22; 2014 Progress Report Serbia, p. 11.

  65. See for example, 2002 Regular Report Romania, SEC(2002) 1409, 9 October 2002, p. 28.

  66. On the institutional focus of the EU’s understanding of the rule of law in enlargement generally, see Kmezic 2017; Nicolaides and Kleinfeld 2012; Kochenov 2008.

  67. See for example, See for example the 2002 Regular Report Czech Republic, p. 22.

  68. See for example, 2001 Regular Report Lithuania, p. 18.

  69. See for example, 2011 Progress Report Former Yugoslav Republic of Macedonia, SEC(2011) 1203 final, 12 October 2011, p. 58; 2013 Progress Report Former Yugoslav Republic of Macedonia, SWD(2013) 413 final, 16 October 2013, p. 39.

  70. See for example, 2007 Monitoring Report Romania, SEC(2006) 596, 16 May 2006, p. 7; 2003 Comprehensive Monitoring Report Lithuania, SEC(2003) 1204 final, 5 November 2003, p. 13; 2012 Comprehensive Monitoring Report Croatia, SWD(2012) 338 final, 10 October 2012, p. 37.

  71. See for example, 2002 Regular Report Romania, p. 26; 2002 Regular Report Cyprus, p. 18; 2013 Progress Report Albania, pp. 8–9.

  72. See for example, 2000 Progress Report Estonia, p. 17; 2003 Comprehensive Monitoring Report Latvia, pp. 14–15; 2008 Progress Report Turkey, pp. 10–11; 2012 Progress Report Albania, pp. 14–16.

  73. The first set of the Copenhagen criteria is frequently referred to in the literature as the ‘political conditions’ for membership, see, for example, Hillion 2011, p. 195; De Witte 2003, pp. 228–233.

  74. Presidency Conclusions, Copenhagen European Council, 21–22 June 1993.

  75. Commission Communication ‘Agenda 2000—for a stronger and wider Union’ Doc/97/6, 15 July 1997, p. 50.

  76. See for example the Commission Opinion on the Czech Republic’s Application for Membership of the European Union, COM(97) 2009 final, 15 July 1997, p. 12.

  77. See for example 2002 Regular Report Slovenia, SEC(2002) 1411, 9 October 2002, pp. 19–23; 2007 Progress Report Croatia, SEC(2007) 143, 6 November 2007, p. 8.

  78. Presidency Conclusions, Essen European Council, 9–10 December 1994. Also see the Presidency Conclusions, Amsterdam European Council, 16–17 June 1997.

  79. See Commission Communication ‘Agenda 2000’ COM(1997) 2000 final, 15 July 1997, pp. 52–53.

  80. Defined in the Guidelines as “helping the candidate countries to develop the structures, human resources and management skills needed to put in place economic, social and regulatory systems equal to the task required for approximation of laws and implementation of the acquis communautaire, and an inclusive democratic civil society capable of fulfilling the requirements of the ‘Copenhagen Criteria’.” Commission Decision on the Guidelines for PHARE Programme Implementation in Candidate Countries 1998–1999’ SEC(1998) 1012 final, 15 June 1998, p. 5. Also see Commission Decision on the Guidelines for the PHARE Programme Implementation in Candidate Countries for the Period 2000–2006, in Application of Article 8 of Regulation 3906/89 (Decision) SEC (1999) 1596 final, 13 October 1999; Commission 2002 Report on PHARE and the pre-accession instruments for Cyprus, Malta and Turkey’ COM(2003) 497 final, 11 August 2003.

  81. This second priority is meant essentially that the candidate countries need to invest in adapting their enterprises and main infrastructure to respect Community norms. According to the Guidelines, “the only alternative to ling transitional periods is a major investment effort by the applicant countries to adapt to Community norms and standards.” SEC(1998) 1012 final, ibid, p. 9.

  82. Ibid.

  83. Ibid, p. 5.

  84. According to Article 2(2) of Council Regulation 2666/2000 on assistance for Albania, Bosnia and Herzegovina, Croatia, the Federal Republic of Yugoslavia and the Former Yugoslav Republic of Macedonia, repealing Regulation (EC) No 1628/96 and amending Regulations (EEC) No 3906/89 and (EEC) No 1360/90 and Decisions 97/256/EC and 1999/311/EC [2000] OJ L 306/1, financial aid is aimed at ‘the creation of an institutional and legislative framework to underpin … the rule of law.’ Moreover, the assistance shall be implemented by financing investment and institution-building programmes.

  85. According to para 13 of the Preamble of Council Regulation 1085/2006 establishing an Instrument for Pre-Accession Assistance (IPA) [2006] OJ L 210/82 (IPA I), assistance for candidate countries should ‘be targeted at supporting a wide range of institution-building measures. Accordingly, Article 2 stipulates that the scope of assistance covers the ‘strengthening of democratic institutions, as well as the rule of law, including its enforcement’, which, according to Article 3, shall be implement by inter alia institution building.

  86. IPA II has the same institutional focus as IPA I (Article 3) and lists as its specific objective not only the strengthening of institutions, but highlights at the same time that, in the case of the rule of law, this implies ‘an independent and efficient justice system’, Article 2(1)(a)(i) and 2(2)(a) Regulation 231/2014 of 11 Marc 2014 establishing an instrument for pre-accession assistance, OJ[2014] L77/11 [emphasis added].

  87. Leino 2002, p. 81.

  88. Marks has criticised the Commission’s attempt at outlining what it would look for in the Copenhagen political criteria in Agenda 2000 as a “simplistic sum”, see Marks 2000, p. 74.

  89. Council Conclusions on the Application of Conditionality with a view to developing a Coherent EU-Strategy for the Relations with the Countries in the Region, Annex III, 29/30 April 1997.

  90. Ibid.

  91. See for example the Stabilisation and Association Agreement between the European Communities and their Member States of the One Part, and the Republic of Montenegro, of the Other Part, Article 80.

  92. See for example the 2015 Report Former Yugoslav Republic of Macedonia, SWD(2015) 212, 10 November 2015, pp. 12–20.

  93. Negotiating Framework Croatia, 3 October 2005; Negotiating Framework Turkey, 3 October 2005.

  94. See for example The Former Yugoslav Republic of Macedonia Progress Report 2011, SEC(2011) 1203 final, 12 October 2011, pp. 11–13 and 58–60.

  95. Jonasson 2013, p. 137.

  96. Commission Communication ‘Composite Paper—Reports on Progress Towards Accession by Each of the Candidate States’ COM(1999) 500 final, 13 October 1999, p. 9.

  97. Commission Communication ‘Enlargement Strategy and Main Challenges 2006–2007’ COM(2006) 649 final, 8 November 2006, p. 22.

  98. Commission Communication ‘Enlargement Strategy and Main Challenges 2012–2013’ COM(2012) 600 final, 10 October 2012, p. 4.

  99. Commission Communication ‘EU Enlargement Strategy’ COM(2015) 611 final, 10 November 2015, p. 5. The Communication moreover continues further down the same page that “[t]here have been some positive developments on the rule of law over the past years. This has been primarily in terms of putting in place legal frameworks and institutional structures. Also see Commission Communication ‘EU Enlargement Strategy and Main Challenges 2014–2015’ COM(2014) 700 final, 8 October 2014, p. 11.

  100. COM(2018) 450 final, pp. 2–3. It should be noted that the Council echoes the Commission’s legal-institutional understanding of the rule of law. See Council Conclusions on Enlargement and Stabilisation and Association Process, 26 June 2018, Council doc. 10555/18, pnt. 5.

  101. Scott 1996, pp. 27–36 at p. 27. Further, see Shetreet and Deschênes 1985, p. xv; Reitz 2003, pp. 429–486 at p. 437.

  102. Lamer 1996, pp. 3–18 at p. 6.

  103. To name two examples, in Bulgaria, a three-tier jurisdiction, courts of appeal throughout the country and the supreme court of appeal, as well as the supreme administrative court were introduced; Regular Report from the Commission on Bulgaria’s Progress Towards Accession 1998, COM(98) 707 final, 17 December 1998, p. 8; Regular Report from the Commission on Bulgaria’s Progress Towards Accession 2000, COM(2000) 701 final, 8 November 2000, p. 16. In Hungary a fourth level of courts, the high courts of justice, was to be inserted between regional courts and the Supreme Court; Regular Report from the Commission on Hungary’s Progress Towards Accession 1998, COM(98) 700 final, 17 December 1998, p. 9.

  104. See, for example, the 1998 Composite Paper on progress in enlargement, according to which a well-developed judiciary is central to the candidate countries, and in which it is stated that “[i]n order to effectively implement and enforce the acquis, existing institutions need to be strengthened and new institutions created.” Commission Communication ‘Composite Paper—Reports on Progress Towards Accession by Each of the Candidate Countries’ COM(1998) 712 final, 17 December 1998, p. 16.

  105. Kochenov 2008, p. 228.

  106. Case 26/62 NV Algemene Transport- en Expeditie Onderneming Van Gend en Loos v Nederlandse Administratie der Belastingen EU:C:1963:1.

  107. In relation to the preliminary ruling procedure, the Court has stated that the procedure “requires the national court and the court of justice, both keeping within their respective jurisdiction, and with the aim of ensuring that Community law is applied in a unified manner, to make direct and complementary contributions to the working out of a decision.” Case 16/65 Firma G. Schwarze v Einfuhr- und Vorratstelle für Getreide und Futtermittel EU:C:1965:117.

  108. As the Court ruled in Unión de Pequeños Agricultores, “in accordance with the principle of sincere cooperation laid down in Article 5 of the Treaty [current Article 4(3) TEU], national courts are required, so far as possible, to interpret and apply national procedural rules governing the exercise of rights of action in a way that enables natural and legal persons to challenge before the courts the legality of any decision or other national measure relative to the application to them of a Community act of general application, by pleading the invalidity of such an act. Case C-50/00 P Unión de Pequeños Agricultores v Council EU:C:2002:462, para 42.

  109. Commission Communication ‘Towards the Enlarged Union—Strategy Paper and Report of the European Commission on the Progress towards Accession by Each of the Candidate Countries’ COM(2002) 700 final, 9 October 2002, p. 11. Cf. Opinion 2/13, para 191.

  110. Blokker 2016, p. 255.

  111. To name a few, Fuller 1969, mainly chapter 2; Raz 1979, mainly chapter 11; Finnis 1980, pp. 270–276; MacCormick 1992, pp. 121–125; Waldron 2008; Fallon 1997, pp. 8–9; Summers 1999, pp. 1691–1712.

  112. See for example Article 68 of the Europe Agreement with Poland. For the SAAs, see for example 72(1) of the Stabilisation and Association Agreement with Montenegro.

  113. Commission Communication ‘Composite Paper—Reports on Progress Towards Accession by Each of the Candidate Countries’ COM(1998) 712 final, 17 December 1998, p. 3.

  114. Stefan Füle, 9 November 2010, Speech on Enlargement Package, http://europa.eu/rapid/press-release_SPEECH-10-639_en.htm?locale=en. Accessed 1 Aug 2018.

  115. Dodini and Fantini 2006, pp. 513–514.

  116. Harpaz and Herman 2007, p. 357.

  117. Herdina 2007, pp. 501–504.

  118. See for instance the 1999 Accession Partnership with Hungary, which requests for example the complete transposition and enforcement of legislation in the area of nature protection under the environmental chapter: Council Decision 1999/850/EC of 6 December 1999 on the principles, priorities, intermediate objectives and conditions contained in the Accession Partnership with the Republic of Hungary [1999] OJ L 335/1.

  119. See for example the Commission’s description and justification of its methodology in the 2002 Regular Report on Slovenia’s Progress Towards Accession, SEC(2002) 1411, 9 October 2002, p. 9.

  120. The annual reports on the PHARE Regulation in particular discuss progress of the candidate states in terms of “the momentum reached in transposing legislation” and “significant progress in legislative harmonization”, see e.g. Commission Communication ‘The Phare Programme—Annual Report 1998’ COM(2000) 183 final, 31 March 2000, p. 25; 2002 Report on Phare and the Pre-Accession Instruments for Cyprus, Malta and Turkey, SEC(2003) 910, 11 August 2003, Annex, p. 26.

  121. Mendelski 2016c, p. 373.

  122. Regular Report from the Commission on Romania’s Progress Towards Accession 2000, COM(2000) 710 final, 8 November 2000, p. 15.

  123. Turkey 2005 Progress Report, SEC(2005) 1426, 9 Nov 2005, p. 10.

  124. Dragneva 2007, pp. 1–2.

  125. Also see Peerenboom 2006, pp. 834–836.

  126. Sedelmeier 2012, p. 20; Steunenberg and Toshkov 2009, p. 951.

  127. Falkner et al. 2008.

  128. Kmezić 2017; Mendelski 2015, 2016a.

  129. Slapin 2015, p. 627.

  130. Mendelski 2016b, p. 11.

  131. Also coined the ‘hasty transplant syndrome’, explained by Grabbe in the context of the countries in central and Eastern Europe: “It took Greece well over a decade to adapt to the EU’s single market norms. By contrast, prospective CEE members are expected to have oriented their institutions and policies to the EU prior to membership, which means less than a decade in practice. Moreover, they have done so from a much lower starting-point and with very limited scope for negotiating transitional periods.” Grabbe 2003, p. 306.

  132. For empirical evidence on these so-called “pathologies of Europeanization” see Mendelski 2016a, pp. 353–357.

  133. The Former Yugoslav Republic of Macedonia 2007 Progress Report, SEC(2007) 1432, 6 November 2007, p. 7 [emphasis added].

  134. Albania 2007 Progress Report, SEC(2007) 1429, 6 November 2007, p. 6. See also Serbia’s 2009 Progress Report, which highlights a related problem: “There has been increased legislative output from the parliament. There is, however a need to improve ex ante compatibility checks with EU standards before legislation is adopted. There has, moreover, been insufficient public consultation on content and impact of draft laws.” Serbia 2009 Progress Report, SEC(2009) 1339, 14 October 2009, p. 7.

  135. Regular Report from the Commission on Romania’s Progress Towards Accession 2000, COM(2000) 710 final, 8 November 2000, p. 15.

  136. The Former Yugoslav Republic of Macedonia 2011 Progress Report, SEC(2011) 1203 final, 12 October 2011, p. 11.

  137. The Former Yugoslav Republic of Macedonia 2014 Progress Report, SWD(2014) 303 final, 8 October 2014, p. 5. The problem of gaps in the legislative framework is a recurring worry across various reports, see for example Bosnia and Herzegovina 2013 Progress Report, SWD(2013) 415 final, 16 October 2013, p. 20; Kosovo 2016 Report, SWD(2016) 363 final, 9 November 2016, p. 28.

  138. Montenegro 2016 Report, SWD(2016) 360 final, 9 Nov 2016, p. 5.

  139. Albania 2016 Report, SWD(2016) 364 final, 9 Nov 2016, p. 7; Turkey 2016 Report, SWD(2016) 366 final, 9 November 2016, p. 15; 2004 Regular Report on Turkey’s Progress Towards Accession, SEC (2004) 1201, 6 October 2004, p. 160.

  140. See the work undertaken by Mendelski 2015/2016, and Slapin 2015.

  141. Ibid.

  142. Holmes 1999, p. 71.

  143. Dragneva and Wolczuk 2012, p. 220.

  144. Berkowitz et al. 2003, p. 167.

  145. Channell 2006, p. 140.

  146. Kahn-Freund, 1974, p. 27.

  147. Magen 2007, p. 370.

  148. Dragneva and Wolczuk 2012, p. 219.

  149. Grzymala-Busse and Innes 2003, p. 66.

  150. Grabbe 2003, pp. 306–307.

  151. Hertogh 2016, pp. 45–46; Krygier 2009, p. 47.

  152. Krygier 2009, 60.

  153. See for example the Former Yugoslav Republic of Macedonia 2016 Report, pp. 12–14.

  154. See for a recent example the 2015 Enlargement Strategy, which stated that: “There have been some positive developments on the rule of law over the past year. This has been primarily in terms of putting in place legal frameworks and institutional structures.” COM(2015) 611 final, p. 5. See also Krygier 2009, p. 46.

  155. Mendelski 2011, p. 16. In the context of the post-accession monitoring of Bulgaria and Romania, Toneva-Metodieva has linked the lack of progress on the rule of law elements under the Cooperation and Verification Mechanism to, amongst others, exactly this point. The socio-structural transformations that are needed in the applicant states to become full EU Members are underestimated and not fully understood by the Union. Toneva-Metodieva 2014.

  156. It is interesting to note that in the literature on post-accession behaviour of states it is pointed out that there are also some positive aspects to the Commission’s approach of legal-institutional reform. Many countries made institutional investments to increase the effectiveness of national arrangements for the adoption of EU law, which allowed them to transpose a massive amount of acquis into national legislation within a short period of time. This, in turn, has aided the new Member States, after their accession in 2004, to maintain some of the established procedures, which increased their capacity for timely and correct transposition of EU directives into national law. Sedelmeier 2016; Zubek 2005, pp. 592–619.

  157. Sen 2000, p. 10.

  158. Krygier 2011, p. 86.

  159. Nicolaidis and Kleinfeld 2012, p. 34.

  160. See, for example, Krygier 2001, Krygier, 2009, Krygier 2011.

  161. Krygier 2001, pp. 12–16.

  162. Blokker 2016, p. 257.

  163. COM(2016) 715 final, p. 2.

  164. COM(2018) 450 final, p. 2.

  165. FYROM’s 2016 report is just one of the reports, which state that in the area of judicial reform there has been either no progress or backsliding, the Former Yugoslav Republic of Macedonia 2016 Report, p. 12. Overall the 2016 Strategy indicates that “structural shortcomings persist, notably in the key areas of rule of law.” Commission Communication ‘EU Enlargement Policy’ COM(2016) 715 final, 9 November 2016, p. 2.

  166. Ibid, p. 11.

  167. President Jean-Claude Juncker 13 September 2017, State of the Union Address 2017. http://europa.eu/rapid/press-release_SPEECH-17-3165_en.htm. Accessed 1 Aug 2018.

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  1. The Hague University of Applied Sciences, The Hague, The Netherlands

    Lisa Louwerse

  2. Asser Institute, The Hague, The Netherlands

    Eva Kassoti

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Louwerse, L., Kassoti, E. Revisiting the European Commission’s Approach Towards the Rule of Law in Enlargement. Hague J Rule Law 11, 223–250 (2019). https://doi.org/10.1007/s40803-019-00087-1

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