Conditional or Sustainable? The Rule of Law and Judiciary Reforms in the Western Balkans

Rule of Law: EU Conditionality or Sustainability? What Goes Wrong in the in the Western Balkans? European integration is legal integration. Rule of Law is an essential part of the DNA of the European Union, which is itself a “community based upon law” (ECJ, Les Verts). According to the ECJ, Rule of Law is one of the most important general legal principles common to the Member States. It is structurally necessary for making direct effect and supremacy of EU Law work. Judges in the Member States are not only integral part of their own judicial system, but also of the integrated European legal order. Mutual recognition and trust in the equivalence of the different judicial systems of Member States have permitted their legal integration. However, the delicacy of the construction is shown by increasing difficulties in the sphere of criminal justice (in particular with the EU Arrest Warrant and the reactions of various Constitutional Courts) and due to deliberate political interference in some Member States with judicial independence, a cornerstone of Rule of Law. Today, the Rule of Law principle is recognized as a founding value in Article 2 TEU, after its outward projection had long been part of the Copenhagen criteria for EU accession. The experiences with enlargement in 2004 and 2007 as well as the creation of the Space of Freedom, Security and Justice have led to major emphasis on the Rule of Law in the enlargement process, and on the related chapters 23 and 24, before and during accession negotiations. According to the new methodology applied by the European Commission (2020), the Rule of Law shall become, as one of the six new clusters, the real litmus test in the accession process. This paper shall assess judicial reforms in the Western Balkans over the last 20 years, with a focus on Bosnia and Herzegovina (BiH). The central question is whether and to which extent Rule of Law can be sustainably created from the outside and by external actors and assistance. Starting from the first period of internationally imposed or induced reforms in 2002-2004, the period from the EU takeover in 2006/7 to 2010 will be examined, when “local ownership” was to substitute international presence and pressure, before focusing on the last decade of EU-guided Rule of Law reforms. The contribution shall give an overview over the reforms that have been adopted and on the status of their implementation. Which are “European standards” referred to and how has conditionality in the Rule of Law sector been made concrete and operationalized? Which reforms were successful and are they sustainable? Will the Commission’s new cluster methodology bring about change?