3.1 Albania: Conditionality policy as a tool for stabilitocracy
Alban Dafa, Institute for Democracy and Mediation (IDM)
The EU seeks to promote democratisation mainly through its conditionality policy, which seems rather straightforward: reward progress on good governance and the rule of law through progress in the accession process and punish democratic backsliding by halting the steps towards accession. In practice, however, this policy is unclear and even contradictory at times. On the one hand, the European Commission tends to favour enlargement and assist the Albanian government and other institutional stakeholders to overcome obstacles to institutional reforms. This approach enables the Commission to influence Albanian policy and expand the influence of European agencies.[52] On the other hand, due to their internal public safety concerns or foreign policy objectives, some member states have been more reluctant to agree that Albania progresses on the accession path and towards enlargement in general.[53]
In response, Albanian government stakeholders tend to take (short-term) measures, which are seen as successful by the European Commission and member states, to demonstrate reform commitment on the country’s accession path. These dynamics have led the EU to paradoxically endorse ‘reform’ measures that threaten civil liberties and undermine good governance and democracy, as the cases in this country study illustrate.
Tackling organised crime and corruption
The need for a strong track record of fighting corruption and organised crime in Albania was one of the key concerns that led the Netherlands to support the French veto of October 2019 on opening accession talks with Albania and North Macedonia.[54] To respond to this concern, on 31 January 2020 the Council of Ministers adopted, through a normative act,[55] an amendment package to standing law enforcement legislation that sought to improve the country’s fight against organised crime and corruption. Taken ahead of the 24 March General Affairs Council vote on the opening of accession talks with Albania, this measure was intended to signal to member states that Albania was committed to addressing their concerns.
The Albanian Helsinki Committee (AHC), however, criticised the Albanian government for overstepping its constitutional boundaries by enacting amendments that needed parliamentary approval for undermining the independence of the prosecution – since the package envisioned that the Special Anti-Corruption Structure (SPAK) was part of a task force headed by the minister of interior – and for undermining civil liberties through its preventive measures of confiscating suspects’ property and restricting their freedom of movement.[56] Nevertheless, the EU Delegation and the United States (US) Embassy praised the measures.[57] Their endorsement signalled to the Albanian government that the Assembly could be bypassed if expeditious results towards EU accession were at stake. This can be regarded as a clear example of the technical approach focused on law adoption instead of deeper societal transformation. Moreover, bypassing parliamentary procedures for the sake of reform constitutes one of the risks associated with the time-pressure effect discussed in Chapter 1.
Unstable governance through preconditions
The risks related to the time-pressure effect were also at play with regard to three key preconditions (out of a total of 15) which Albania had to fulfil before holding the first intergovernmental conference (IGC): (1) ensure the functionality of the Constitutional Court and (2) the High Court, and (3) approve electoral reform in accordance with the Organization for Security and Co-operation in Europe/Office for Democratic Institutions and Human Rights (OSCE/ODIHR) recommendations.[58] Imposing these preconditions further illustrates the focus of the Commission and the member states on process over substance regarding their implementation.
Requiring the Albanian government to ensure the functionality of the Constitutional Court and the High Court was rather redundant as the selection process for the judges had been ongoing, but made difficult because the process of re-evaluating judges and prosecutors (vetting process) had led to the dismissal of virtually all Constitutional and High Court judges. In the case of the Constitutional Court, the selection process for new judges has been adversely affected by the preconditions imposed by the EU. In December 2020 three Constitutional Court judges were appointed: one by the Assembly and two by the president of the Republic. It is clear that they were appointed in haste because for two of the three vacancies there was only one nominee; for the third vacancy there were two nominees.[59] These appointments, however, are not in line with the relevant legal provisions, which require at least three candidates to be nominated for each vacancy.[60] Nevertheless, they were praised by the EU as successes.[61]
The EU took a similar approach regarding the electoral reform issue. It considered the agreement reached on 5 June 2020 by the Albanian political stakeholders – but with extensive mediation by the EU, the United States (US) and the United Kingdom (UK) – as fulfilling the third precondition. This agreement, however, did not address any of the substantive points raised through the OSCE/ODIHR recommendations such as campaign and political party financing, vote buying, and the misuse of public resources for political purposes.[62] The agreement merely ensured that the opposition would not boycott the upcoming parliamentary elections, which were held in April 2021. The EU’s approach towards this key principle was to restore political stability rather than contribute to democratic transformation in Albania.
Silence on the unlawful use of personal data and voter surveillance
During the parliamentary election of 25 April 2021, a database with the personal data of more than 910,000 voters[63] was used to unlawfully influence voter behaviour. The content of the database suggested that it was being used by the Socialist Party (SP) because the citizens were assessed as to whether they were potential SP voters. Party officials initially denied they were using the leaked database,[64] but in an interview with France 24 after the election, SP Chairman Edi Rama did not deny that the leaked database was indeed used by the Party; his position was that personal identification numbers do not constitute sensitive data.[65] In addition to the illegal use of personal data, the leaked database revealed an infrastructure of surveillance that included over 9,000 so-called ‘caretakers’.[66]
The post-election joint statement by High Representative (HR) Borrell and Commissioner Várhelyi did not mention the unlawful use of personal data nor the surveillance system established. The main message of the statement was: accept the results of the elections and submit concerns on election irregularities, such as the misuse of state resources and vote buying, to the Central Election Commission.[67] In this case, EU officials failed to hold a principled position by condemning the failures of the electoral process.
‘Western Balkans leaders must deliver more credibly on their commitment to implement reforms’
The above sentence features both in the revised methodology and in the Economic and Investment Plan (EIP) for the Western Balkans and highlights the continuation of the EU’s leader-oriented approach towards enlargement. This approach, however, has produced a precarious stability that requires continuous EU intervention to be maintained, as exemplified by the cases outlined in this country section. It is thus important that the EU fosters a more sustainable approach towards enlargement that is centred on a whole-of-society approach, substantive conditionality and sustainable development.
The EU should ensure that citizens, civil society organisations and government institutions are involved in the design and implementation of reform measures. The EU should provide financial and technical assistance for the reforms, but the Albanian government should match that funding within an equitable level. Such an approach would ensure public support and local ownership of the reform effort. Substantive conditionality means that the EU outlines clear and strict standards for reforms that seek substantive and sustainable institutional and regulatory changes. These principles would produce a decision-making process on the reform agenda that is participatory rather than confined largely to the executive level.
The third principle – sustainable development – has been partially addressed through the EIP. The Plan, however, focuses mostly on green and digital transition, and does not include education, healthcare and labour policies as key pillars of the action. These policy areas are important not only for the quality of life of Albanian citizens, but also for the successful implementation of the EIP, as well as prevention of migratory pressures and other associated security risks to the EU.
3.2 The EU way of (mis-)handling the Bosnia and Herzegovina integration process
Emina Kuhinja and Hata Kujraković, Foreign Policy Initiative BH (FPI)
Bosnia and Herzegovina (BiH) has been stalling on its progress towards the EU since 2016 when it submitted its application for membership. After setting requirements for the country, the European Commission issued its Opinion[68] on BiH in 2019 and confirmed its commitment to guide and support the country in undertaking the necessary reforms on its path towards European integration. However, implementation of necessary reforms has been slow and without clear deadlines. Although the complex institutional structure of the country, its flawed constitution, and a lack of rule of law have contributed to the failure to establish a stable and consolidated democracy, one could bring into question the effectiveness of the EU approach to tackling the situation in BiH.
What has gone wrong?
The EU has a ‘leader-oriented approach’ and often fails to include the national parliament and civil society organisations from BiH in the accession process talks. Most of the meaningful dialogue takes place with presidents and representatives of political parties rather than with state institutions, giving leading figures additional legitimacy, even though they are the people obstructing the reform process.[69] These meetings are mostly held behind closed doors, away from the public eye, and thus cannot be scrutinised by the public and civil society organisations (CSOs). Moreover, meetings are sometimes organised in an informal setting to discuss highly salient topics. One such example was when the former Head of the EU Delegation in BiH and EU Special Representative, Lars-Gunnar Wigemark organised a meeting in a restaurant in East Sarajevo with the leaders of the two biggest parties in BiH, Milorad Dodik (Alliance of Independent Social Democrats) and Bakir Izetbegovic (Party of Democratic Action). They discussed the mechanism for coordinating the EU integration process of BiH and the credit arrangement with the International Monetary Fund.[70] Another example is the recent visit of Ursula von der Leyen,[71] who met with the members of the BiH Presidency to discuss regional integration, the role of the Berlin process, further EU and BiH cooperation, and support for the integration process. However, the meeting was not followed by a press conference and left more doubts than solutions for the country’s prospects. This type of meeting is a practice that many other EU leaders engage in, disregarding the potential role of other state actors, institutions and experts. Such practice further obstructs the process and diminishes the institutions' role in working on reforms and leading BiH’s integration process.
The EU approach to BiH’s democratic reforms is ‘technical rather than political’, failing to grasp the necessity of maintaining and balancing the interests of the country’s three ethnic groups – Serbs, Croats and Bosniaks. The requirement to balance interests is a legacy of the Dayton Peace Agreement, but often produces inconsistencies on both sides with failed attempts by BiH political representatives to make significant progress. The European Commission Opinion[72] on BiH’s application for membership points out the country’s complex institutional set-up connected with ethnicity-related procedures, which creates structural issues and disrupts the functionality of the system. For this reason, the Commission persists in pushing for improvements in the electoral framework and the judiciary. Still, the EU’s approach to defining the necessary adjustments often incorporates the model of a system that fits within a specific EU member state but not BiH. Moreover, what often occurs is that the international community and its experts work on drafting new reforms for BiH,[73] on which the country’s leaders subsequently fail to reach a consensus. The EU has been insisting on an inclusive process of election law reform[74] that would encompass the European Court of Human Rights rulings, BiH Constitutional Court’s rulings and the EU’s conditions for accession. However, the issue among the three ethnic groups remains. To push reforms forward, the EU Delegation in BiH is willing to negotiate the reforms with political parties who oppose implementation of the rulings and undercut democratic values.[75]
In addition, the EU turns to the security sector reform (SSR) programmes in achieving objectives such as fostering ‘peace and stability, inclusive and sustainable development, state-building and democracy, rule of law, human rights and principles of international law’.[76] In BiH, the EU focused on establishing a functional state and security system with the required reforms. However, its approach towards the SSR in the country remains unclear, as the requirements for a functional security sector have not been defined. For example, police reform in BiH started in 2005 and was one of the conditions for signing the Stabilization and Association Agreement (SAA) between the EU and BiH. Although the agreement was reached after a two-year stalemate, the European Commission did not have any justification for the criteria imposed in an undue manner as ‘European principles’ and required: (1) all legislative and budgetary competences vested at state level; (2) no political interference with operational policing; and (3) functional police areas determined by technical policing criteria.[77] Furthermore, the reform failed to produce meaningful results. One of the products was the establishment of the Directorate for Coordination of Police Bodies of Bosnia and Herzegovina, which has not played any significant role in what it was tasked to do – increasing coordination among the different police forces. This shows that, in some instances, the EU cares more about the form rather than the substance – that is, the successful implementation of the necessary reforms.
Over the years, the EU has been allocating significant financial aid to BiH to meet the humanitarian needs of refugees and migrants.[78] Although BiH has been provided with nearly €90 million[79] to address the migrant and refugee crisis and strengthen its migration management capacities, almost €77 million of the total funding from the EU has been allocated to and through the International Organization for Migration (IOM),[80] and not directly to BiH institutions. Having a situation where an international organisation sponsored by the EU fulfils the state’s role is highly problematic because the IOM, unlike BiH authorities, cannot be held accountable to the BiH public.[81] Therefore, the focus of the EU is placed on short-term stability instead of actual capacity building with BiH institutions to provide an adequate crisis response. This approach transfers state responsibilities to an international organisation, instead of limiting its role to an overseeing body or a body that only contributes to the state’s strategy on migration regulation. Furthermore, the violent[82] and illegal[83] pushbacks on the border between BiH and Croatia came with a strong backlash against the EU for not calling out Croatia and putting measures in place to prevent further human rights violations.[84] Strengthening the role of IOM, rather than fostering better internal coordination and domestic capacities for crisis management, as well as foregoing sanctions on Croatia as a reaction to reoccurring border violence, shows how the EU foments stabilitocracy in BiH.
Making it work
The aforementioned aspects display the need for a more guidance-driven EU approach, considering the politicised nature of policymaking in BiH and the overall lack of consistency and effort in following up on recommendations made by the EC. Existing support mechanisms have proved less effective than expected and have managed to tackle only the general framework of necessary changes prior to gaining the candidate status. By repeatedly avoiding the need for a more involving approach, the EU has indirectly supported the undermining of the country’s integration process, invoking non-interference as an excuse for the state to practise its sovereignty.
To make it work, the EU should be clearer and more vocal when it comes to conditions and directions in which reforms should go, so that its guidance remains not only technical but is also applied in practice. The unlocked potential lies in empowering CSOs’ contribution to advocacy for EU integration among the general public and relevant stakeholders, as well as their significant contribution in monitoring activities. Demanding transparency in the allocation of funds and actions involving bilateral relations and foreign policies of both the EU and BiH could be the key step towards ensuring credible financial reports and distribution of activities when it comes to crisis management. Also, taking responsibility for specific violations of international law at the EU border and addressing them among the wider public will set up a more trusting environment and provide a clear response to the backlash from the bottom up. The main responsibility for the current internal situation lies with the BiH's domestic leaders, but the European Commission and the European Delegation should take greater part in investigating the ongoing political crisis and impose sanctions on those who hinder internal progress.
3.3 Entrenched between enlargement fatigue and domestic obstacles: Kosovo’s bumpy road towards the EU
Arber Fetahu, Group for Legal and Political Studies (GLPS)
Introduction
Currently Kosovo ranks last in terms of future membership in the European Union among the WB6. It holds the status of a potential candidate, alongside Bosnia and Herzegovina, and is the country with the poorest overall progress towards accession so far.[85] Although the keystone underscoring the path of Kosovo towards accession remains the SAA signed in 2015 and entered into force in 2016,[86] several key hurdles remain: in particular, the weak functioning of the rule of law system, lack of crucial reforms in the public administration, political instability, poor implementation of the European Reform Agenda (ERA),[87] and the dialogue with Serbia affecting overall socio-political developments countrywide.
With such issues at hand, this country section analyses the EU’s failure to: bring about tangible results to speed up Kosovo’s accession path and grant visa liberalisation to its citizens; improve the rule of law system despite EULEX; and speak with one voice. The need to urgently address these shortcomings is of paramount importance considering the EU’s influence in Kosovo in the political, judicial, economic and security spheres. Concretely, its role is characterised by a dual involvement in the country: state building through its largest and most expensive Common Security and Defence Policy (CSDP) mission – i.e., the EU Rule of Law Mission (EULEX) – and the European integration process.
The multi-layered flaws
In the rule of law sector, EULEX is the example par excellence of the EU’s mismanagement in the sphere of justice and security. Evidence of corruption inside the EU rule of law mission[88] was a major setback for the state-building process in Kosovo and its European path. In fact, the allegations of corruption within EULEX, made public in 2014, damaged its image significantly.[89] In 2017 EULEX’s chief judge Michael Simmons accused the mission of corruption. EULEX, however, responded that Simmons himself was under investigation for alleged serious wrongdoings.[90] The accusations of covering up corruption cases, along with no indictments for high-ranked politicians, despite the initiation of investigations from the prosecution, contributed to stabilitocracy formation.
The EU’s independent report on EULEX[91] points out several weaknesses in its own management yet dismisses the main charge of the mission itself covering-up cases.[92] On the one hand, the report confirms the omnipresence of corruption in Kosovo. On the other hand, it acknowledges that its complete eradication would not have been feasible. At the same time, the report states that ‘it should nevertheless, have been possible to lay the foundations of a system capable of fighting corruption’.[93] The document further concludes that as such bases have not been provided for, the mission should be either reformed or withdrawn.[94] Considering the structural flaws mentioned above, one might conclude that EULEX has failed to strengthen the judicial system, combat organised crime and bring Kosovo closer to the EU.[95] Peculiarities of this kind reveal the flaws of the EU’s enlargement process which were, as in the case of Kosovo, ‘more technical rather than political’. In other words, they did not tackle corruption, clientelism and the political dynamics that would trigger transformations. On the contrary, the EU through EULEX contributed indirectly to the consolidation of state capture.
The EU’s security reform efforts in Kosovo have been characterised by the achievements and drawbacks of EULEX. Since February 2008, EULEX has been responsible, pursuant to Council Joint Action 2008/124/CFSP dated 16 February 2008,[96] of developing and strengthening a multi-ethnic justice system, mentoring the Kosovo Police, and boosting the custom services countrywide. The mission has provided valuable assistance and training to the Kosovo police. Yet it faced considerable obstacles in terms of follow-up. This can be partially attributed to the local population’s lack of trust and credibility towards EULEX. Despite considerable technical assistance, the transformation of the security sector in Kosovo was weakened due to multiple deficiencies in the mission’s own functioning.[97] Besides that, the unresolved issue of Kosovo’s status, coupled with its non-recognition by the EU5 (i.e., Cyprus, Greece, Romania, Slovakia, Spain), rendered the mission a mere technical one.[98] The 2012 European Court of Auditors report[99] attributed shortcomings in EU assistance to the rule of law and the security reform in Kosovo to the ineffective coordination of policy instruments.[100]
Along with its state-building commitment via EULEX, the EU has a special focus on the EU integration process through the EU-facilitated dialogue. Yet, the dialogue hindered de facto democratic consolidation, as the negotiation process at large lacked transparency. Concretely, key important institutions and stakeholders including parliament, civil society and the local population were virtually excluded from the entire process. In addition to that, linking Kosovo’s EU integration path to the dialogue with Serbia has allowed the government to avoid criticism of the poor results in the fight against corruption and the lack of the necessary reforms. The EU’s approach to the Dialogue has been ‘overly leader-oriented’. In other words, Kosovo’s leaders used the EU’s endorsement to hold on to power and free themselves from criticism, which consequently prompted stabilitocracy formation.
On top of the aforementioned issues, another flaw hindering Kosovo’s European perspective is the ‘failure of the EU to speak with one voice’. A practical example is the holdup of the visa liberalisation process which leaves Kosovo as the only country among the six whose citizens need a visa to travel to the Schengen zone. Despite the fulfilment of technical benchmarks for visa liberalisation,[101] the process is blocked due to the unwillingness of some member states to follow up on the European Commission’s conclusion.[102] In this respect, the EU ‘failed to reward progress’ because it was unable to find common understanding among member states. Yet, this blockade has adverse effects on EU credibility, by diminishing its conditionality policy. Also, it has a negative impact on Kosovo’s democratisation’s process, while at the same time fostering the status quo.
The final take and recommendations
In short, EU policies towards Kosovo have paved the way to the formation of a stabilitocracy. In other words, technicalities have not fostered political transformation. Rather, they have indirectly helped corrupted political elites to stay in power. For this to change, the EU should initiate new projects in the rule of law area requiring local ownership and professionalism in compliance with EU standards. In addition, the EU should lessen the ambiguous modalities surrounding the dialogue with Serbia. Finally, for more tangible benefits of Kosovo’s EU path to become visible and to showcase that it keeps its initial commitments, the EU should deliver on its promise to grant visa liberalisation.
3.4 Montenegro: ‘Unconditional’ rule of law
Milena Muk, Institute Alternative (IA)
Introduction
Alignment with the EU’s foreign policy, good neighbourly relations and the process of legislative harmonisation with the EU acquis in the last decade have made Montenegro the EU Enlargement frontrunner, although many reforms were simulated and circumvented the clientelist privileges of those in power.[103] Reforms did not address prevailing corruption and organised crime, which is why the country has closed only three chapters in nine years of accession negotiations. Yet, despite the obvious reluctance of the Democratic Party of Socialists (DPS), which lost power in the 2020 parliamentary elections after 30 years of rule, to endanger its own position with painful reforms, the EU’s criticism was limited. It was concentrated mainly on the Commission’s annual country reports and non-papers, which lacked clear messages and measurable benchmarks.[104]
The revised EU enlargement methodology pledged to change the approach by addressing structural weaknesses in the countries, particularly with regard to the fundamentals, which include interconnected issues of rule of law and judiciary reform.[105] However, the methodology did not elaborate how exactly such weaknesses would be addressed. Meanwhile, the ongoing transition of power has reiterated Montenegro’s efforts in the realm of rule of law. The DPS has held a firm grip on institutions, which is why the new, albeit heterogenous, power structures have pledged to ‘liberate’ them. The remainder of this section illustrates the ways in which the flaws of the EU enlargement policy had unintended consequences on detangling a complex situation regarding the country’s prosecution.
Analysing the key flaws
The key cure for Montenegro’s prevailing corruption is considered to be an independent judiciary, especially in prosecution. However, the challenges posed to the judiciary were so complex that the technical safeguards pushed by EU conditionality were not enough to address them. These safeguards, consisting of institution-building efforts, and constitutional and legal provisions, have not produced tangible results. One of the key flaws of the EU’s approach in the country is its ‘overly technical orientation’, which is closely intertwined with an ‘insufficient specification of the rule of law’. In other words, when technical safeguards within the judiciary proved to be ineffective against the increasing allegations of political instrumentalisation of the country’s prosecution and judiciary, the poor specification of rule of law standards got in the way of detangling this complex situation. A brief historical overview of prosecutorial reform substantiates this thesis.
In 2013 the Montenegro parliament adopted constitutional changes aimed at judicial reform as a condition to opening key negotiation chapters. However, the composition and performance of the Prosecutorial Council resulted in corporativism and the absence of accountability for poor results.[106] On top of that, the special prosecution for organised crime, high-level corruption, terrorism and war crimes, established in 2015 with EU backing, soon made controversial moves against the political opposition, which raised concerns that it was being politically instrumentalised. The chief special prosecutor even overstepped his legal competences by publishing transcripts of the phone conversations of some politicians which were not related to any known criminal case.[107] Special prosecutors, alongside other public officials, were even granted housing loans by the government. This affair disclosed the extent to which the boundaries between branches of power were blurred despite the technical safeguards and qualified parliamentary majority for top judiciary appointments.[108]
Against such a background, the new parliamentary majority tried in 2021 to pass two laws which would bring immediate termination of the mandate of the chief special prosecutor. They would further result in a different Prosecutorial Council with more members nominated or elected by the government and parliament. The EU warned against such provisions.[109] Subsequently, members of parliament (MPs) decided to amend only the law on prosecution, with the aim of introducing a new structure to the Prosecutorial Council as well as additional clauses for prevention of conflict of interest for its prospective members, who now cannot be spouses or relatives of MPs, ministers or presidents of the government. In addition, reputable lawyers cannot be appointed from among party members, officials or former prosecutors active in the past eight years. Some of these situations pertained among the members of the then existing Prosecutorial Council, including appointment of the spouse of a minister in the 2016-2020 government. Still, the amendments retained the intention to terminate the mandate of the existing Prosecutorial Council. The Venice Commission, a body of the Council of Europe based on which the bulk of EU conditionality in the field is formed, advised against the termination of mandate,[110] despite the close involvement of some Prosecutorial Council members with the former regime of DPS.
Making other concessions to the EU, MPs nevertheless passed the legal solution to change the Prosecutorial Council. In their public statements, the heads of ruling parties used examples from EU member states of the government’s role in prosecutorial appointments to justify choosing new reputable lawyers by simple parliamentary majority.[111] On the other hand, by making mutually non-aligned statements,[112] EU officials unintentionally provided both the DPS and the new power structures with an argument to substantiate their own positions: the DPS in depicting parliamentary majority as ‘anti-EU’ and ‘anti-democratic’, and the new majority for delaying implementation of the reform and delivering tangible results in the fight against organised crime and corruption.[113] However, in October 2021, a European Commission country report reiterated that not all recommendations of the Venice Commission had been followed up, including what was seen as unjustified termination of the mandate of the Prosecutorial Council. The report dedicated much less space to the allegations of politically motivated actions by the Special Prosecutor’s Office (SPO) or controversial loans allocated by the government to prosecutors and judges.[114] The EU has not clearly weighed all structural weaknesses in the country’s prosecution. It continued to insist on formal preconditions while neglecting the instances of chief special prosecutor overstepping his legal competencies and certain prosecutors being over-reliant on government financial support through housing loans.
Final remarks
Montenegrin experience with prosecutorial reform shows that ‘technical’ independence safeguards promoted by the EU were indeed just a thin-surface solution to accumulated problems. This is best illustrated by the mechanism through which prosecutors solved their housing needs through the government based on the law on maintenance of residential buildings, while the focus of judiciary reform was elsewhere.[115] On the other hand, prosecutors used formal independence to shield themselves from accountability for poor results. When the new power structures tried to instigate further reform, the lack of clarity of the rule of law concept prevented both the new majority and the EU from using that momentum to promote deeper transformation. Neither the EU nor domestic elites addressed the underlying clientelism and politicisation which prevented prosecution from delivering results.
There is no ready-made solution to such a complex problem. Still, Montenegro provides good lessons on why implementation of the revised EU enlargement methodology should take a more holistic approach, and should consider all formal and informal influences hampering progress in key fundamental areas. Moreover, the EU should be aware that insisting on certain technical solutions, while neglecting the wider political and social context, can unintentionally result in reinforcement of deeply entrenched clientelist networks. Therefore, the incidents of clear political instrumentalisation of key institutions should have specific weight in the overall assessment of specific area, along with legal standards and technical preconditions.
3.5 EU accession disrupted: lessons from North Macedonia
Ardita Abazi Imeri, European Policy Institute (EPI)
Introduction
In 2021, North Macedonia marked 20 years since the signing of the SAA with the EU and 16 years of being a candidate country for EU accession. Yet, accession negotiations have not commenced largely due to bilateral disputes with neighbouring countries, first with Greece and currently with Bulgaria. The current sitting government has been making efforts since 2017 to reverse democratic backsliding, using EU accession as an anchor, while making difficult concessions such as renaming the country with the Prespa Agreement in 2018. North Macedonia therefore provides an almost perfect example for the EU to ‘confirm’ the effectiveness of EU conditionality by supporting democratic change under a pro-European elite in power, in order to overcome the prior period of backsliding. Yet, the failure to (re)start accession negotiations weakened the potential of EU conditionality as a tool for supporting democratic transformation.
Compromised EU approach
Looking at the case of North Macedonia during a decade-long VMRO-DPMNE rule, there are several linked factors which, explained through the identified flaws of EU enlargement policy, have created a fertile ground for stabilitocracy formation.
First, the name dispute with Greece threw the country’s Euro-Atlantic integration into limbo and undermined the power of the EU to lock in domestic change.[116] Notwithstanding progress in democracy and rule of law areas by 2009, the country could not move forward in its Euro-Atlantic path because it was being blocked by Greece and thus the EU.[117] This blockade, in turn, enabled the VMRO-DPMNE government to spur nationalism and populism, best illustrating the EU’s ‘failure to reward progress’. Member states’ positions thus provoked a political gain for VMRO-DPMNE at low cost, compared to the costly reforms for a non-existent EU perspective.[118]
Second, the lack of an EU perspective contributed to backsliding in democracy and rule of law which culminated with state capture, as revealed by the wiretapping scandal in 2015.[119] Behind the democratic façade, the political elite relied on informal structures, clientelism and control of judicial structures and the media to undermine democracy.[120] Furthermore, progress in democratic and rule of law reforms was focused merely on monitoring the implementation of ‘more technical issues rather than on politically sensitive issues’ – such as judicial independence and politicisation in public administration in general.[121] Yet the increasingly technical grading in the European Commission’s annual reports did not reflect the state of affairs on the ground, which was more severe than portrayed.[122] The ‘softer language’ in the annual reports only legitimised anti-reformists’ practices[123] and pointed to a system of monitoring and assessment too simple for a long process such as accession. In fact, it presented a system unable to serve its purpose[124] because it cannot fully depict ‘state capture’ and ‘politicisation’.[125] In this case, instead of using the stick, the European Commission ‘failed to recognise backlash’, and ‘froze’ the accession status of North Macedonia.[126] The inability to capture the political landscape of the country[127] due to an overly ‘technical’ approach, the ineffectiveness of the existing rule of law negotiation framework and ultimately the failure to recognise backlash, enabled further democratic backsliding and ultimately led to the attack on the parliament in 2017.
Third, democratic concerns were overshadowed by the turning of a blind eye for the sake of government responses to ‘higher sensitive issues’.[128] The role of North Macedonia in the geopolitical situation of global migration and refugee-related problems was met with praise and pan-European party solidarity. Such solidarity did, however, damage the EU’s ‘fundamentals first’ approach.[129] EPP support for VMRO-DPMNE[130] without visible steps to condemn democratic backsliding but instead endorsing authoritarian gatekeepers,[131] highlighted the potential to endanger the EU approach to the region.[132] Moreover, the EU member states’ tactic to ‘dance with the girls on the dancefloor’[133] by allowing Gruevski to remain in power as well as a reluctance to use ‘the stick’, mainly due to security concerns and ‘solidarity between local dominant parties and relevant European political families’, compromised the conditionality policy.[134] The discord between the EU’s member states and its institutions in this aspect also did not help the credibility of EU conditionality.
New methodology old approach
On 5 February 2020 the European Commission adopted the Communication Enhancing the accession process – A credible EU perspective for the Western Balkans, which aims to make the accession process more predictable, credible, dynamic and subject to stronger political steering, all while underlining the importance of a merit-based accession process. However, unilateral action by a single member state can still prevent the opening of accession negotiations, and therefore undermine the conceivable effects of the new methodology. In fact, the veto by Bulgaria in 2020 for issues that once again have nothing to do with the Copenhagen Criteria paved the way for another ‘Greek-blockage scenario’ for North Macedonia. As long as the enlargement policy is misused for domestic political purposes, the potential benefits that could be derived from the revised enlargement methodology will be zero. The Commission’s annual reports continue to provide a useful barometer of the reform record, alas with little impact in the broader scheme of things,[135] as demonstrated by the high corruption levels and politicisation of the public administration which remain a pertinent problem.[136] Moreover, the annual reports continue to work with the old approach without any apparent adaptation to the changes of the new methodology.[137] For one, the cluster approach is not visible and the structure is becoming more and more complex.[138] Moreover, the new methodology has failed to provide ideas on how existing measurements of levels of progress and preparedness will be modified in line with the need for the overall enhancement of the process.[139] Without introducing improved monitoring and assessment mechanisms, it is unrealistic to expect any significant changes and a transformative effect of the revised methodology.[140]
Conclusion: the way forward
The case of North Macedonia and its accession saga clearly illustrates the pitfalls of the EU approach towards the Western Balkans – no carrots, no sticks, no EU credibility and a blurred EU perspective as a result of compromising the conditionality instrument in two interrelated ways. First, in the specific case of North Macedonia, the bilateral disputes among member states has paralysed the country accession process. In this respect, the start of EU accession negotiations has the potential to be the game changer in undertaking deep reforms, as shown by the Prespa Agreement and the country’s name change.[141]
Second, the EU and its institutions have compromised EU conditionality by prioritising security and stability at the expense of democracy in the last term of the VMRO-DPMNE government, thus creating fertile ground for democratic backsliding. In this respect, the new methodology would need to create the political momentum to encourage a better structure for negotiations and more comprehensive conditioning on the fundamentals, even in cases of politically sensitive issues. In this respect, EU instruments on rule of law have shown to be particularly weak. They are in need of reinforcement and consistent implementation through active engagement by EU institutions and member states, which need to speak with one voice.
3.6 Serbia as a textbook example of a stabilitocracy
Strahinja Subotić, European Policy Centre (CEP)
Introduction
The prospect of joining the EU has been the key defining feature of Serbia’s last two decades, as it has required the country to mature into a consolidated democracy prior to becoming a full member of the Union.[142] Yet, if one fast-forwards to 2021, Serbia is widely perceived as a textbook example of a stabilitocracy. With such a situation at hand, one finds Serbia in a permanent state of limbo, with only 18 out of 35 chapters opened (the last one almost two years ago) and only two chapters closed (the most recent of which was closed as long as five years ago). In fact, as incumbents keep failing to showcase credible commitment to comprehensive rule of law reforms, and with the continuing deterioration of Serbia’s democratic institutions and media freedoms,[143] this Western Balkan country was downgraded in 2020 to the status of ‘hybrid regime’ in Freedom House’s ‘Nations in Transit’ ranking,[144] worse than at the time of the opening membership negotiations in 2014, when it was considered to be a ‘semi-consolidated democracy’.[145] Considering such a paradoxical situation, it would be worthwhile investigating whether and how EU (in)action has contributed to the current status quo, with the aim of providing recommendations for overcoming it.
Key flaws in the EU approach to Serbia
The key issue with regard stabilitocracy entrenchment in Serbia lies in the fact that the EU has been willing, strongly driven by its desire to resolve the disputed status of Kosovo,[146] to give support to the government in Belgrade (or at least not to openly undermine its legitimacy), even at the cost of principles of fair political competition, electoral level playing field, and institutional division of power among the branches of government.[147] So far, the democratic deficiencies stemming from the increasing accumulation of power have been repeatedly and explicitly forewarned by local civil society organisations,[148] and implicitly in the European Commission’s annual reports.[149] Yet, what has allowed incumbents to avoid blame is the fact that these developments have never been called out directly by the highest EU officials and notable leaders of EU member states. In this way the EU has failed to send a clear message to the citizens of Serbia about the underlying issue causing their country’s stagnation. Such reluctancy to ‘name and shame’ those who are responsible for the lack of reforms or even backsliding has rendered the EU ‘incapable to recognise and act upon backlash’.[150]
What is more, some leaders go so far as to give credit to the current regime, thus assisting incumbents in acquiring external legitimacy for their undemocratic rule. The most recent case of such behaviour was seen during the then outgoing German Chancellor Angela Merkel's visit to Belgrade (whose party also belongs to the EPP) during which she publicly stated that President Vucic is a person ‘who does not make false promises but tries to implement them’.[151] The fact that many other EU leaders have opted for an ‘overly leader-oriented approach’,[152] often defined by a predominantly glorifying tone when interacting with the establishment of Serbia, has made it more difficult for civil society organisations to convey the message to citizens that the situation in Serbia is all but praiseworthy when it comes to the pace and depth of rule of law reforms.[153]
Considering the gravity of the previously identified flaws contributing to the entrenchment of a stabilitocracy, a window of opportunity was nevertheless created in 2020, when the Commission introduced the revised enlargement methodology, aiming to reinvigorate the accession negotiations and ‘re-establish a credible EU perspective’.[154] Yet, soon after its adoption, it became clear those ambitions were rather limited. The shortcomings of the new methodology are best illustrated by the fact that it has fallen short of providing insight into how existing measurements of progress and preparedness will be modified.[155] This is concerning, especially given that existing research already warns that most rule of law benchmarks have tended to be general, often lacking specificity and adaptation to context, which has made measuring results difficult.[156] As long as the accession negotiation process is burdened with an ‘insufficient specification of the concept of rule of law’, it is unrealistic to expect milestones in the following period by the incumbents.
Meanwhile, application of the revised methodology in the case of Serbia has so far only resulted in insubstantial changes that are unlikely to change the course of action of the incumbents. One example of such changes is the re-ordering of chapters into clusters,[157] based on which the Serbian government accordingly adopted a new negotiating structure in April 2021. In fact, it has used this opportunity to officially abolish the position of Head of the Negotiating Team, originally occupied by an independent and renowned expert,[158] thus causing further politicisation of the negotiating structure by strengthening the position of the Chief Negotiator – the Minister of European Integration.[159] Another example of a negligible change resulted in a first ‘political’ IGC held in June 2021. Although the ‘political steer’ was meant to be a crucial element of the revised enlargement methodology, there was a consensus among local civil society that the aforementioned IGC had failed to live up to expectations, as it left the public guessing what EU member states actually expect of Serbia.[160] Although the EU has tried to portray these two cosmetic examples as successes, it may be concluded that it has rather missed the opportunity to change the approach it has taken – which has been ‘technical rather than political’.
A way forward
Despite the current stabilitocracy entrenchment, the EU’s hands are not completely tied. As difficult challenges require out-of-the-box thinking, EU stakeholders should lend an ear to the existing cross-European initiative aimed at breaking the enlargement impasse by introducing the idea of ‘staged membership’.[161] The idea of introducing accession in ‘stages’ (two accession stages, and two membership stages),[162] is to extend the carrot – by envisioning a graduation of degrees of participation in the institutions (policy dialogue, observer, participation with speaking rights but without voting, all voting rights except the veto right, and full voting rights) and access to structural funds (50%, 75% and 100%) for those who meet stringent conditions – and the stick – enhancing the reversibility mechanism by reducing the level of institutional access and funding by qualified majority voting instead of unanimity. For this proposal to produce substantial changes in practice, any decision to increase or reduce the level of participation or share of funds would need to be based on a more detailed, coherent and quantifiable methodology for properly monitoring and assessing the political and rule of law reforms.
This innovative model allows for overcoming the existing ‘in/out’ approach to enlargement, while dispensing with the legitimate fears of many in Western Europe that new members with veto powers will further undermine the functioning of the Union. Meanwhile, it also provides stronger incentives for the political elites in Serbia and the rest of the Western Balkans to genuinely engage in reforms while providing the acceding country with benefits along the way to the full or conventional membership. In short, the implementation of this proposal has the potential to restore reform and integration incentives, while retaining safeguards for key concerns of existing member states. If the EU and Western Balkans were to launch a debate at a strategic level on this matter, so that the institutions could work towards defining a formal proposal, the phenomenon of stabilitocracy could well become a matter of the past.