Where does the European Union make a difference? Rule of law development in the Western Balkans and beyond

Martin Mendelski

Introduction

This chapter examines the effects of European Union-driven rule of law reforms in two Western Balkan countries, Serbia and Albania, between 2002 and 2010. I compare their development with that of European Union (EU) member countries, Romania and Bulgaria, and two EU Neighbourhood countries, Ukraine and Moldova. These six countries were selected because they all conducted externally-driven judicial reforms in the recent past. However, despite the engagement and financial support of the EU and international donors (e.g. the World Bank and Council of Europe) there is little overall progress in the rule of law reforms. The World Bank Rule of Law aggregate indicator for the period between 2002—8, on a scale of -2.5 to +2.5, exhibits progress in Serbia (+0.33) and Albania (+0.22), a decline in Bulgaria (-0.17) and little change in Romania (+0.04), Ukraine (+0.06) and Moldova (+0.04). This is a rather unspectacular development as compared to the significant reform efforts that have been made in the last few years. Considering that Albania and Serbia had the lowest rule of law levels in this group in 2002, their progress can be seen rather as a return to normality after periods of violence and disorder than a genuine establishment of the rule of law.

The unsatisfactory development in the rule of law generates two research questions. Why is there a lack of progress despite considerable reforms and changes of the various judicial systems? In which area/dimension of the rule of law is the EU most effective in assisting? The argument made in this chapter corroborates the remarks of the introductory chapter that the transformative power of EU is weaker than assumed by most Europeanization research, especially those studies adopting a top-down external incentives model. In order to assess the degree of reforms, I propose a two-dimensional conceptual framework of the rule of law, consisting of judicial capacity and judicial impartiality. The advantage of perceiving the rule of law as a combination of two distinct dimensions allows us to identify the impact of the EU on both dimensions separately. My comparative empirical analysis yields one main finding. I show that in terms of judicial capacity-related aspects of the rule of law, judicial reforms have engendered considerable change, while only few changes are observable in terms of impartiality-related aspects. My explanation for this uneven development and the overall lack of progress in the rule of law centres around the technocratic, non-coherent and efficiency-focused reform approach as applied by the EU and its domestic reform partners. In terms of domestic factors, the chapter draws attention to the inhibiting role of domestic cli- entelistic networks — be it political or economic — who employ informal and flexible forms of activities to resist progress in the impartial, power-related aspects of rule of law reform. Agency-related domestic resistance, however, gains crucial importance under conditions of weak institutional capacities and deficient separation of powers that characterise most of our cases, especially post-conflict ones, Serbia and Albania.