Independence Without Accountability: The Harmful Consequences of EU Policy Toward Central and Eastern European Entrants (original) (raw)
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Quo Vadis Judicial Reforms? The Quest for Judicial Independence in Central and Eastern Europe
Europe-Asia Studies
This article examines judicial reforms in the new member states of the EU in a comparative perspective. It explores the interactions between domestic and European actors in the Czech Republic, Poland, Hungary, Romania and Bulgaria and explains why the EU has had a differential impact on the way the principle of judicial independence has been implemented nationally. The differential impact of the EU is explained by considering both the nature of EU conditionality and the relationship between the judiciary and the political actors at the domestic level. The comparison reveals that the power of the EU is greater when tensions at the domestic level between judicial and political actors increase.
Central and Eastern Europe: the EU's struggle for rule of law pre-and post-accession
The Routledge Handbook of Justice and Home Affairs Research (Ariadna Ripoll Servent and Florian Trauner, eds.), 2017
The aim of this chapter is threefold: 1) to shed light on how the EU in general and the European Commission in particular sought to shape judicial reforms in order to strengthen the rule of law in the 2004 and 2007 enlargements; 2) to scrutinize the paths of reforms undertaken in central and eastern Europe to consolidate the independence of the judiciary in the pre-enlargement context; 3) to discuss the EU’s ability to safeguard the rule of law after accession when at the domestic level political actors seek to increase political power over judicial institutions. Organized into three parts, the chapter provides an overview of the literature and in conclusion suggests new avenues of research that can refresh academic and political debates on the conflicts generated by judicial reforms at the domestic and European level.
The EU’s ‘new approach’ is a bold attempt to learn the lessons of previous enlargements and to avoid having to initiate a Cooperation and Verification Mechanism after accession. It rests on the principle that issues relating to the judiciary and fundamental rights (Chapter 23 of the acquis) and justice, freedom, and security (Chapter 24) “should be tackled early in the accession process and the corresponding chapters opened accordingly on the basis of action plans, as they require the establishment of convincing track records” (European Commission 2011b: 5). This study shows that the EU has indeed learnt a number of lessons from previous enlargements and has gradually applied these in its dealings with candidate and potential candidate countries of the Western Balkans. Most notably, the new approach has placed greater emphasis on supporting change in practice rather than just legal compliance. Local stakeholders, including civil society organizations, have been engaged in dialogue and monitoring. It is too early to tell whether the new approach is triggering a long-term transformation of judicial independence, but the EU has clearly eschewed short-termism, an emphasis on formal compliance, and elite-led reforms in favor of a strategy based on ownership, inclusion, and gradual and verifiable change. However, despite clear evidence of progress in all of the cases studied, the research highlights serious and persistent gaps between European standards for independence and impartiality, and the realities on the ground. These challenges are compounded by a general distrust amongst citizens regarding the work of the judiciary, particularly when important decisions are made behind closed doors. A strong, verifiable track record of adjudication without external interference is required to convince people that there has been a break with the politicized judiciaries of the past. However, in a quest to bolster independence, it is not sufficient for the EU and other external agencies to simply encourage the judiciary to work in isolation from the executive and legislative branches of authority. Political (and party) interference is undesirable, but democratic checks and balances are essential. In its pursuit of independence, professionalism and efficiency, the EU needs to be careful that the reforms and initiatives it pursues in the Western Balkans do not lead to an accountability deficit. Moreover, there is a clear risk that a more powerful judiciary, operating with increased autonomy, will exacerbate rather than reduce the threat of political interference. Judicial Independence in the Western Balkans: Is the EU’s ‘New Approach’ Changing Judicial Practices?
Europeanisation and its impact on candidate countries for EU membership: view from Ukraine, 2023
Background: The nature of the European Union (EU) as a global actor has long been the subject of diverse academic debates. Proponents of an understanding of the EU as a normative force believe that its greatest transformative power lies not in coercion but in a policy of enlargement that allows the EU to stimulate reforms in the candidate countries of the Central and Eastern European region, despite the crisis of enlargement. The aim of the article is to study the impact of the Europeanisation process on the legal systems of member states and candidate countries, in particular Ukraine, as well as the formulation of proposals for national institutions regarding the perception of the ‘Europeanisation’ impact of EU law on the legal system of Ukraine. Methods: The methodological basis of the work is interdisciplinary and comprehensive approaches. The interdisciplinary approach is based on the application of theoretical developments in jurisprudence, philosophy, political science, and the theory of international relations, which make it possible to study the process of Europeanisation in relation to member states and candidate countries as fully and comprehensively as possible. The comprehensive approach is aimed at identifying the multifaceted and multifactorial ontological determinants of the Europeanisation process of legal systems. These approaches determined the choice of appropriate general theoretical and special scientific methods: hermeneutic, dialectical, analysis, synthesis, etc. Results and Conclusions: As a result of the study of the political will, capacity, and legitimacy of the EU to defend the values p roclaimed in the founding treaties, in cases of violations of the regulations of the EU law by the member states, the authors come to the conclusion that the EU may face negative consequences due to the display of democratic reformist coalitions in individual member states (Poland and Hungary ), as well as due to favouring (authoritarian) stability over uncertain (democratic) change. Concession to candidate countries for EU accession in terms of the fulfilment of the Copenhagen criteria in exchange for satisfying the interests of leading member states may undermine the credibility of the project of building a European identity based on the common values o f the EU, as well as the loss of the reputation of the normative power of the European Union. Accelerating the process of Ukraine’s accession to the EU, which is connected with Ukraine’s acquisition of the status of a candidate for accession to the EU, requires the Europeanisation of the domestic legal culture as a prerequisite for the modernisation of all other elements of the legal system. This, in turn, implies the completion of the process of de-Russification of legal science and education, the development and approval of the Legal Education Development Program, and the modernisation of legal terminology.
The Drive for Judicial Supremacy in Central and Eastern Europe (book chapter)
Great efforts at judicial reform have been made in Central-Eastern European countries (CEE) over the last 20 years. The earliest reforms were driven by the domestic need for foreign investment and the security of contracts and private property rights which investors expect. These domestic motivations were later complemented by those of international organizations, which throughout the 1990s lent money and granted funding to CEE countries on condition that they establish inter alia the rule of law. Externally motivated influence over judicial reform reached its height under the EU accession process and its conditionality, whereunder candidates aspiring to EU membership must meet the conditions enshrined in the Council of Copenhagen’s Criteria of 1993.1 These also include the rule of law, which is generally supposed to rely on the independence of the judiciary.
Polish Political Science Review,Polski Przegląd Politologiczny 1(1)/ 2013, pp. 65-83, 2013
Recent developments in Hungarian constitutional and judicial politics have given impetus to question not only the outcomes of democratisation and Europeanisation, but also the efficacy of the European Union's compliance mechanisms. In 2010, Hungary, one of the forerunners in building democracy made the headlines with Fidesz's attempts at adopting a new Constitution and implementing cardinal laws along with controversial institutional, cultural, religious, moral and socio-economic policies. This article attempts to depict the transformative power of the European Union within a sensitive policy area which touches upon States' pouvoris régaliens: the independence of the judiciary.
University of Groningen Faculty of Law Research Paper No. 5, 2019
The rule of law backsliding in Hungary and Poland revealed the EU’s significant vulnerabilities in the face of the need to uphold the values that the whole system of EU integration presumes are in place. The lessons are revealing: respecting the acquis does not guarantee continuing adherence to Article 2 TEU values; economic success in the Union does not necessarily entrench democracy and the rule of law; the tools available to preserve the rule of law are largely inadequate, as they could go against the key assumptions of the internal market. Consequently, the lack of political will to deal with the values’ crisis is not at all irrational, which makes it even more worrisome. What stands out from the grim picture is the revolutionary case law of the Court of Justice on judicial independence and mutual trust, which bridges the available infringement procedures with the outstanding problems and offers horizontal and vertical empowerment to the EU’s decentralised judiciaries – now able to intervene – while also resolving the competences conundrum through a broad reading of the principle of judicial independence as a key element of the rule of law. However inspiring, recent case law developments are insufficient, we argue, to deal with the sociological legitimacy crisis in tackling illiberal democracies plaguing the EU: autocratic legalism cannot be fought with legalism alone. Designing a long-term systemic approach to a complex re-articulation of EU values is indispensable, as enforcement is not a panacea per se.