Solidarity and Rule of Law: The New Dimension of EU Security (European Union and its Neighbours in a Globalized World, 9) 303129226X, 9783031292262

Citation preview

European Union and its Neighbours in a Globalized World 9

Teresa Russo Anna Oriolo Gaspare Dalia   Editors

Solidarity and Rule of Law

The New Dimension of EU Security

European Union and its Neighbours in a Globalized World Volume 9

Series Editors Marc Bungenberg, Saarbrücken, Germany Mareike Fröhlich, Saarbrücken, Germany Thomas Giegerich, Saarbrücken, Germany Neda Zdraveva, Skopje, North Macedonia Advisory Editors Başak Baysal, Istanbul, Türkiye Manjiao Chi, Beijing, China Annette Guckelberger, Saarbrücken, Germany Ivana Jelić, Strasbourg, France Irine Kurdadze, Tbilisi, Georgia Gordana Lažetić, Skopje, North Macedonia Yossi Mekelberg, London, UK Zlatan Meškić, Riyadh, Saudi Arabia Tamara Perišin, Luxembourg, Luxembourg Roman Petrov, Kyiv, Ukraine Dušan V. Popović, Belgrad, Serbia Andreas R. Ziegler, Lausanne, Switzerland

The series “The European Union and its Neighbours in a Globalized World” will publish monographs and edited volumes in the field of European and International Law and Policy. A special focus will be put on the European Neighbourhood Policy, current problems in European and International Law and Policy as well as the role of the European Union as a global actor. The series will support the cross-border publishing and distribution of research results of cross-border research consortia. Besides renowned scientists the series will also be open for publication projects of young academics. The series will emphasize the interplay of the European Union and its neighbouring countries as well as the important role of the European Union as a key player in the international context of law, economics and politics. Unique Selling Points: • Deals with a wide range of topics in regard of European and International Law but is also open to topics which are connected to economic or political science • Brings together authors from the European Union as well as from accession candidate or neighbouring countries who examine current problems from different perspectives • Draws on a broad network of excellent scholars in Europe promoted by the SEE | EU Cluster of Excellence, the Europa-Institut of Saarland University as well as in the South East European Law School Network

Teresa Russo • Anna Oriolo • Gaspare Dalia Editors

Solidarity and Rule of Law The New Dimension of EU Security

Editors Teresa Russo Department of Legal Sciences (School of Law) University of Salerno Fisciano, Italy

Anna Oriolo Department of Legal Sciences (School of Law) University of Salerno Fisciano, Italy

Gaspare Dalia Department of Legal Sciences (School of Law) University of Salerno Fisciano, Italy

ISSN 2524-8928 ISSN 2524-8936 (electronic) European Union and its Neighbours in a Globalized World ISBN 978-3-031-29226-2 ISBN 978-3-031-29227-9 (eBook) https://doi.org/10.1007/978-3-031-29227-9 © The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 This work is subject to copyright. All rights are solely and exclusively licensed by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors, and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, expressed or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. This Springer imprint is published by the registered company Springer Nature Switzerland AG The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland

In loving memory of David Maria Sassoli, Journalist and President of the European Parliament

Preface

Looking for the New Dimension of EU Security Solidarity and respect for the rule of law are two principles that are variously connected and increasingly evoked. These principles inform not only international relationships, especially in the context of the European Union, but are also among the fundamental values common to all Member States (Article 2 TEU) and their deeply integrated legal orders. In this perspective, they can be deemed ‘insideoutside’ principles inspiring EU internal and external actions toward Member and Third States (Article 21.1 TFEU). Nevertheless, according to the wording of Article 2 TEU, they do not seem to have comparable legal value, facing numerous difficulties in their practical application by both Member and acceding States. Indeed, Member States themselves are questioning their application, giving rise to the need for new protection mechanisms. Therefore, this book aims to investigate how these two principles are linked within the main research fields of the Jean Monnet Module ‘EU-Western Balkans Cooperation on Justice and Home Affairs’ (EUWEB), financed by the European Commission for the period 2019–2022, concerning EU enlargement (Part I), crossborder security, migration, and asylum management (Part II), criminal justice and human rights (Part III), and police and judicial cooperation (Part IV). In so doing, the book critically analyzes these principles and their connection within the EU legal order as ‘borderline principles’ of EU action toward Member and acceding States, particularly the Western Balkans, now of strategic importance to EU security. The link between solidarity and the rule of law principles is evident in the enlargement policy anchored to the EU values espoused in Art. 2 TEU, but even more evident in terms of the Western Balkans’ enlargement aimed first at stabilizing the region and then at integration in the EU. In this sense, Erjon Hitaj’s notable chapter reflects on the EU’s efforts to promote stabilization in the Western Balkans, particularly with regard to Kosovo, underlining that the creation of the Kosovo Specialist Chambers and Specialist Prosecutor’s Office was the direct result of diplomatic pressure exerted by the EU and USA on Kosovo’s government to vii

viii

Preface

avoid the Security Council’s involvement in the institution of any new tribunals for war crimes in Kosovo. As the author emphasizes, the creation of this special Court is a clear example of transitional justice that might provide a measure of rectitude for victims, guarantee effective accountability for perpetrators, and help stabilize the region. However, only time will show whether this rule of court principle will achieve the actual expectations of the Kosovo population and the international community, with the shared intent to democratize Kosovar society and meet the criteria for EU accession. Similarly, the chapter by Niuton Mulleti focuses on EU Common Security and Defence Policy (CSDP) civilian missions that have greatly contributed to preserving security and stability in the Western Balkans, even if their role in the Europeanization of national political systems has been rather limited. Through an interesting reconstruction of the CSDP conceptualization, the author argues that the experience of CSDP civilian missions in the Western Balkans shows that effective rule of law cannot be established by an international mission, but only by local institutions under strict EU conditionality within the framework of their accession process. Relatedly, in her enlightening chapter, Teresa Russo explains the functions of EU enlargement by reconstructing the prior accession processes to demonstrate the inequality of Western Balkan accession due to the imposition of an endless list of benchmarks. In her diligent investigation, she emphasizes that the EU’s approach toward Western Balkans accession consisted in foreign policy tools, intergovernmental mechanisms and instruments for their stabilization and association, regional cooperation, and good neighborly relations, where the backbone of enlargement focuses on the fundamentals linked to core EU values, and above all, the rule of law. Indeed, States aspiring to join the Union would need to establish and promote from an early stage the proper functioning of the core institutions necessary to ensure the rule of law. In particular, this chapter emphasizes the differences between enlargement and the European Neighborhood Policy (ENP) under the framework of EU external action, especially in view of the new applications for membership of Ukraine, Moldova, and Georgia. Furthermore, the author clarifies that the main objective of EU enlargement, namely solidarity among the peoples of Europe, culminates in strong conditionality for respect of the rule of law, without producing the desired results. In this sense, she judicially leads the reader to reflect on how enlargement to the East has allowed access of States that threaten EU values, thus negatively affecting Western Balkan accession. Part II concerning cross-border security, migration, and asylum management, focuses on the principle of solidarity, specifically EU policies in the field governed by the principle of solidarity and fair sharing of responsibility, including financial implications, among Member States according to Article 80 TFEU. However, this part also highlights how the failure to respect this principle has undermined respect for the rule of law principle. This is evident in two cases of the Italian legal system detailed in Angelo Jr Golia’s chapter exposing the dangers of exclusionary conceptions of solidarity and the rule of law detached from legal certainty and right to access as pre-conditions of the effective enjoyment of constitutional and

Preface

ix

international rights. Since 2014, the migration crisis has raised a number of issues across Europe that significantly threaten the rule of law. The external borders of countries most affected by the influx of migrants reflect a serious problem at the core of the EU. In fact, failure to respect external border procedures is the first sign of a dysfunctional asylum system. The problems began with the non-application and non-respect of the principle of solidarity, safeguarding the human rights of migrants, refugees, and asylum seekers, and their protection against victimization or involvement in serious crimes. Correspondingly, the chapter by Lorenzo Cherubini underlines that the Dublin System, aimed at EU cooperation in the field of asylum, was not initially designed to cope with the massive migratory flows that affected the Union in subsequent years. The author carefully shows that it is among the most criticized ‘products’ of European law. His chapter provides stimulating insights concerning the reasons for this failure, highlighting the perspective of the European Commission’s new and recent attempt to modify the Dublin System and introduce new solidarity mechanisms. His conclusions underscore the security risks to the fora and violations of human rights. These risks are the focus of the chapter co-authored by Elena Maksimova and Angelina Stanojoska examining cooperation between the EU and the Republic of North Macedonia in cases of human trafficking and smuggling of migrants. Considering the criminalization of solidarity in the EU, the chapter stimulates reflection on the current practice of investigating criminals, the increased policing of people who help migrants, including through search and rescue operations, reception activities and the provision of food, housing, and services. Part II of the book concludes with an in-depth examination in Ana Nikodinovska Krstevska’s chapter of the principle of solidarity in the context of the externalization of EU security in the areas of asylum and migration. Importantly, the author develops a common framework of EU solidarity and security externalization to illustrate the congruence of these two concepts in the case of North Macedonia, highlighting that EU membership and border enlargement have become issues to be managed under the framework of a new dimension of EU security strongly anchored in safeguarding its identity and inspired by respect for its core values. Solidarity and the rule of law also imbue EU criminal justice systems and human rights protection, the focus of Part III. This is recalled in Angela Di Stasi and Angela Festa’s thought-provoking chapter on the implications of breaches to the rule of law on the mutual trust principle in the Area of Freedom, Security and Justice (AFSJ). Starting from the evolving jurisprudence of the European Court of Justice (ECJ) on the independence of the judiciary, the authors underline the close link between the principle of mutual trust and EU values, such as the rule of law, solidarity, and human rights protection. As explained in the chapter, the presumption of trust among Member States implies that their judicial systems ensure equivalent and effective protection of fundamental rights, hence calling for the enforceability and recognition of the decisions of other national courts, contributing to interstate cooperation for the creation of a common legal space, such as AFSJ. As emphasized throughout this book, the legal protection of fundamental human rights is a key area of attention in relation to Western Balkans accession to the

x

Preface

EU. However, in their co-authored chapter, Anja Matwijkiw and Bronik Matwijkiw take a look behind the legal scene by exploring the theoretical stakeholder frameworks that have contributed to different approaches to analyzing and assessing fundamental human rights. In this captivating and inspiring chapter, the authors introduce the reader to the issue of socioeconomic justice as the area that makes the most sense in terms of solidarity as a value and principle. In the authors’ view, the emerging trend of jointly recalling the values and principles of solidarity and the rule of law to direct foreign affairs and cooperation should also be dismissed to the extent that it stresses socioeconomic ‘justice’. In other words, the EU has a responsibility to assist its partners, and the endeavors are at best a lofty vision, and at worst a reflection of policymakers’ ignorance about the nature and scope of fundamental rights. As such, the authors argue that the body of EU law (acquis) should be amended to reflect this fact, and the call for a ‘new dimension’ of security should hence be dismissed. The impact of EU values, such as the rule of law and solidarity, in both the criminal justice and human rights domains also emerges in Anna Oriolo’s compelling chapter on transnational crimes and the human-rights based approach (HRBA). In compliance with the aims of the Springer series ‘The European Union and its Neighbours in a Globalized World’, she explores the EU’s active role in exporting this acquis to transnational crimes (also covering ECJ case-law) in the context of enlargement and accession, the development of the European Neighborhood Policy, and full participation in international fora in the fight against cross-border offences. In her suggestive and in-depth critical investigation, she considers three closely related topics: the ‘substantial’ dimension of the rule of law and HRBA as a complementary mechanism to the traditional criminal system to counteract crossborder crimes; transnational criminal law as the legal framework to foster the rule of law; and the shortcomings of the HRBA within the EU legal framework mainly based on a criminal or repressive approach to combat multinational violations. In the absence of normative intervention, the chapter emphasizes the ECJ’s role in extending HRBA standards to the EU counter-crime regime, contributing to uniform definitions, redresses, and remedies concerning violations of individual guarantees linked to cross-border offences. The chapter authored by Emanuele Vannata takes a similar approach, providing interesting insights and reflections on environmental rule of law as a legal foundation of achieving solidarity in climate matters. According to the author, in the environmental domain, the effectiveness of access to justice as a relevant element of the rule of law is threatened, especially with regard to the difficulties encountered by natural or legal persons in asserting their legal standing before a judge. In this perspective, his analysis starts from environmental solidarity at the international and EU level to focus on the rule of law as the legal foundation of judicial protection of individual and collective environmental rights, emphasizing the role of national and international courts in the progressive affirmation of HRBA in environmental matters and the construction of more ethical ecological governance.

Preface

xi

Solidarity and the rule of law values also permeate Part IV of the book, dedicated to police and judicial cooperation in EU criminal systems and its development in Western Balkan countries. In particular, the chapter by Steven Blockmans and Ardian Hackaj analyzes Albania’s significant efforts in reforming its judicial sector, initiated by the unanimous decision of the Albanian Parliament in 2016 to achieve a corruption-free judicial system, and more generally, eradicate its endemic dysfunctions. Indeed, the authors identify and evaluate the particularities of Albania’s new structures and institutions that are part of the ‘positive core’ of the justice sector’s reform, investigating not only the basic infrastructure, embedded knowledge, learning processes, organizational achievements, technical and financial assets and resources, but also the solidarity of partners in the modernization process. In an objective and systematic way, the authors describe the factors that contribute to enhancing the rule of law reform in all six Western Balkan countries, taking inspiration from the experience of some States that joined the EU in 2004 and whose institutions have initiated a slow but much needed adaptation of the judicial system. Consistently, Stefano Busillo’s chapter deals with the mutual recognition of decisions in EU criminal judicial cooperation, with particular attention to the ‘conditioned applicability’ of the European Investigation Order (EIO) under the Court of Justice case-law. Although the EU relies on the principle of mutual recognition for the circulation of judicial decisions from Member States—shaping their relationships on the premise of mutual trust—the chapter underlines the importance of applying this principle with appropriate limitations so as not to undermine the fundamental rights of those involved in criminal proceedings. In fact, blind and unconditional acceptance of the instruments of judicial cooperation in criminal matters, albeit in the spirit of solidarity, could lead to serious violations of these rights, endangering mutual trust and the substantive rule of law itself, as demonstrated by the analysis of the jurisprudence of the Court of Justice ruling on EIO with consequences also for accession of future Member States. Part IV concludes with the chapter by Ismail Tafani who stresses the tremendous efforts of Albania in realizing judicial cooperation with the EU, focusing in particular on its constitutional reform toward a real and functioning democracy. The main objective of the reform, in line with supranational requirements, is to fight corruption by creating an electronic register based on cooperation with domestic and foreign judicial authorities, especially in the EU, emphasizing the reforming efforts of Albania to earn the credibility essential to ensuring the existence of ‘trust’ required by the EU in judicial and police cooperation. Besides demonstrating the remarkable progress achieved in strengthening the judicial cooperation models, the author affirms that only a digital evolution will provide the fundamental instruments for effective cooperation among States in the exchange of judicial data. However, such exchange must always be inspired by

xii

Preface

solidarity able to overcome outdated definitions of sovereignty, as well as efficiency to ensure that full respect of fundamental rights will not be jeopardized. Fisciano, Italy

Teresa Russo Anna Oriolo Gaspare Dalia

Acknowledgments

This book concludes the scientific research conducted within the framework of the 2019–2022 Jean Monnet Module ‘EU-Western Balkans Cooperation on Justice and Home Affairs’ (EUWEB) of which I was the Scientific Coordinator. I would like to thank all those (academics, national and international experts, practitioners, representatives of civil society and NGOs, as well as policy makers) who have accepted to take part in our activities, making the results achieved highly qualified. This book promotes a different idea of security through the values of the Union. Therefore, in thanking everyone for the ‘human’ network we have created, and which continues in the activities of the Jean Monnet Chair in ‘Promoting Public Awareness on Enlargement Policy, EU Values and the Western Balkans’ Accession’ (EUVALWEB) which I hold for the period 2022–2025, I wish to express my most sincere gratitude and appreciation to all colleagues from the Western Balkan Countries for their support and encouragement during the development of the project. I am indebted to Jacqueline Fuchs for her help with language revision in the preparation of the book. Her comments enabled us to correct language errors and made the book easier to read. I would like to thank the staff of Springer, especially Manuela Schwietzer and Pradeep Kuttysankaran, for their help and support from the submission to the finalization of the book. I am also grateful to Dr. Stefano Busillo and Dr. Emanuele Vannata for their editorial assistance in collating this book. I would also like to extend my deepest acknowledgments to the Member of the European Parliament, Laura Ferrara, thanks to whom President David Maria Sassoli honored the opening of the second edition of the Jean Monnet Module EUWEB with a video message.

xiii

xiv

Acknowledgments

My most vivid memories go to him, a staunch supporter of democracy, who died prematurely. Thank you.

Teresa Russo EUWEB Leader

Funded by the European Union. Views and opinions expressed are however those of the author(s) only and do not necessarily reflect those of the European Union or the European Education and Culture Executive Agency (EACEA). Neither the European Union nor EACEA can be held responsible for them.

Contents

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Laura Ferrara Part I

EU Enlargement and Stabilization Process in the Light of the Rule of Law and Solidarity Principles

Stabilization of the Western Balkans and the Impact of the Rule of Law on the Prosecution of War Crimes in Kosovo: Some Reflections on the Kosovo Specialist Chambers and Specialist Prosecutor’s Office . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Erjon Hitaj EU Civilian CSDP Missions and the Consolidation of the Rule of Law in the Western Balkans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Niuton Mulleti The Security Implications of Enlargement on EU Fundamentals . . . . . . Teresa Russo Part II

1

15

31 49

Solidarity and Rule of Law in Cross-Border Security, Migration and Asylum Management

The Commission Tries Again to Reform the Dublin System: Much Ado About Nothing? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Francesco Cherubini

75

Migration and the Janus Faces of Solidarity and the Rule of Law: Brief Remarks in the Light of the Italian Experience . . . . . . . . . . . . . . . Angelo Jr Golia

99

The Impact of the EU Principle of Solidarity and the Rule of Law on Criminal Aspects of the Migrant Crisis in the Republic of North Macedonia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113 Elena Maksimova and Angelina Stanojoska xv

xvi

Contents

Solidarity and the Externalization of EU Migration and Asylum Security: A Dual Concept? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 129 Ana Nikodinovska Krstevska Part III

Solidarity and Rule of Law in Criminal Justice and Human Rights

Breaches of the Rule of Law in the EU: What Implications for the Principle of Mutual Trust in the Area of Freedom, Security and Justice? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 153 Angela Di Stasi and Angela Festa A Look Behind the Legal Scene: Philosophical Stakeholder Responses to Fundamental Human Rights . . . . . . . . . . . . . . . . . . . . . . . 173 Anja Matwijkiw and Bronik Matwijkiw The Rule of Law, Transnational Crimes, and the Human Rights-Based Approach in the European Union: The Court of Justice as Ultimate Guardian of the ‘Good’ Laws . . . . . . . . . . . . . . . . 201 Anna Oriolo Environmental Solidarity and the Rule of Law in the EU System: Some Explanatory Reflections on Climate Justice Case-Law . . . . . . . . . 227 Emanuele Vannata Part IV

Solidarity and Rule of Law in Police and Judicial Cooperation

Building on Core Strengths: Lessons from Justice Sector Reform in Albania . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 245 Steven Blockmans and Ardian Hackaj Mutual Recognition in EU Judicial Criminal Cooperation and Its ‘Conditional Application’ to the European Investigation Order (EIO) Under ECJ Case Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 263 Stefano Busillo Albanian Judicial Cooperation with the European Union: A Support of the Implementation of the Constitutional Reform to Ensure a Functioning Democracy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 279 Ismail Tafani Afterword. The New Dimension of EU Security in a Transnational Justice and Governance System . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 295 Teresa Russo

Editors and Contributors

About the Editors Teresa Russo, PhD, Associate Professor of European Union Law; Lecturer of International Organization, EU Migration Law, International Law and Cyber Security; Scientific Coordinator of the 2019–2022 Jean Monnet Module “EU-Western Balkans Cooperation on Justice and Home Affairs” (EUWEB); Holder of the 2022– 2025 Jean Monnet Chair “Promoting Public Awareness on Enlargement Policy, EU Values and the Western Balkans’ Accession (EUVALWEB)”; Editor in Chief of the online Scientific Journal “EUWEB Legal Essays: Global & International” Perspectives; Lawyer. Anna Oriolo, PhD, Associate Professor of International Law; Lecturer of European Union Law, International & European Criminal Law and Diplomatic and Consular Law, Key Teacher of the 2019–2022 Jean Monnet Module “EU Western Balkans Cooperation on Justice and Home Affairs” (EUWEB), Director of the “International & European Criminal Law Observatory” (IECLO), University of the Salerno (Italy); Member of the Editorial Board of the “Journal of International Criminal Law” (JICL); Lawyer. Gaspare Dalia, PhD, Researcher of Criminal Procedure; Lecturer of Comparative Criminal Procedural Law; Professor of Criminal Procedural Law and Deontology at the School of Specialization for Legal Professions at the Department of Legal Sciences (School of Law), University of Salerno; Key Teacher of the 2019-2022 Jean Monnet Module “EU Western Balkans Cooperation on Justice and Home Affairs” (EUWEB); Criminal lawyer.

xvii

xviii

Editors and Contributors

Contributors Steven Blockmans CEPS, Brussels, Belgium College of Europe (Bruges and Natolin), Bruges, Belgium European Foreign Affairs Review, Brussels, Belgium Stefano Busillo Department of Legal Sciences, University of Salerno, Fisciano, Italy Francesco Cherubini Department of Political Science, LUISS ‘Guido Carli’ of Rome, Roma, Italy Angela Di Stasi Department of Legal Sciences, University of Salerno, Fisciano, Italy Laura Ferrara University of Florence, Firenze, Italy Angela Festa Department of Law, University of Campania ‘Luigi Vanvitelli’, Caserta, Italy Angelo Jr. Golia Max Planck Institute for Comparative Public Law and International Law (MPIL), Heidelberg, Germany Association for Juridical Studies on Immigrations (ASGI), Torino, Italy Ardian Hackaj Tirana Connectivity Forum, Tirana, Albania Director of Research, Cooperation and Development Institute, Tirana, Albania Erjon Hitaj Public International Law and European Union Law University ‘Ismail Qemali’ of Vlore, Vlorë, Albania Elena Maksimova Faculty of Law, University ‘Goce Delčev’ of Štip, Shtip, North Macedonia Anja Matwijkiw Indiana University Graduate School and Philosophy Program, IU Northwest, Gary, IN, USA Affiliated Faculty, Institute for European Studies, IU Bloomington, Bloomington, IN, USA Bronik Matwijkiw Faculty of Law, University of Zagreb, Zagreb, Croatia Niuton Mulleti Department of Law, EPOKA University, Vlorë/Tirana, Albania Ana Nikodinovska Krstevska Department of International Relations and EU Law, Faculty of Law, University ‘Goce Delčev’ in Štip, Shtip, North Macedonia Anna Oriolo Department of Legal Sciences (School of Law), University of Salerno, Fisciano, Italy Teresa Russo Department of Legal Sciences (School of Law), University of Salerno, Fisciano, Italy

Editors and Contributors

xix

Angelina Stanojoska Faculty of Law, University ‘St. Kliment Ohridski’ of Bitola, Bitola, North Macedonia Ismail Tafani Barleti University, Tirana, Albania Emanuele Vannata Department of Legal Sciences (School of Law), University of Salerno, Fisciano, Italy

Introduction Laura Ferrara

Abstract ‘Europe will not be made all at once, or according to a single plan. It will be built through concrete achievements which first create a de facto solidarity’. Reread in light of the current prospects of the development of the integration and enlargement process, Robert Schuman’ statement is evocative of the challenges the European Union (EU) faces in achieving its vision of a more secure, prosperous, sustainable, fairer, supportive, and united Europe. Guided by the universal values and principles affirmed by the United Nations (UN) Charter and international law, including international humanitarian law, the EU has always claimed its global role in enforcing and defending human rights, democracy, and the rule of law. The Union enjoys standards recognized as very high in these fields, even if in some cases subject to confrontation and intense debate among Member States. Solidarity in the European Union, despite not yet espousing a clear and uniform meaning, and hence different interpretations depending on the context, undoubtedly contributes to the construction of the European project through the fulfilment of Member States’ economic, political, and social obligations. In a world increasingly subject to turbulence and instability, identifying and addressing the evolving threats that go beyond geographical borders will require EU resilience towards security, cognizance of shared responsibility, and a much broader perspective than in the past whereby cooperation with international partners and the increasing interconnection between internal and external security must be

Member of the European Parliament, Full Member of the Committee on Civil Liberties, Justice and Home Affairs (LIBE), Substitute in the Committee on the Environment, Public Health and Food Safety (ENVI), Special Committee on foreign interference in all democratic processes in the European Union, including disinformation (INGE 2), Committee of Inquiry to investigate the use of Pegasus and equivalent surveillance spyware (PEGA). E-mail: laura.ferrara@europarl. europa.eu L. Ferrara (✉) University of Florence, Firenze, Italy © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 T. Russo et al. (eds.), Solidarity and Rule of Law, European Union and its Neighbours in a Globalized World 9, https://doi.org/10.1007/978-3-031-29227-9_1

1

2

L. Ferrara

combined with respect for fundamental rights and European values, overcoming the false distinctions between the physical and digital spaces. ‘Europe will not be made all at once, or according to a single plan. It will be built through concrete achievements which first create a de facto solidarity’.1 Reread in light of the current prospects of the development of the integration and enlargement process, Robert Schuman’ statement is evocative of the challenges the European Union (EU) faces in achieving its vision of a more secure, prosperous, sustainable, fairer, supportive, and united Europe. Guided by the universal values and principles affirmed by the United Nations (UN) Charter and international law, including international humanitarian law, the EU has always claimed its global role in enforcing and defending human rights, democracy, and the rule of law.2 The Union enjoys standards recognized as very high in these fields, even if in some cases subject to confrontation and intense debate among Member States. Solidarity in the European Union, despite not yet espousing a clear and uniform meaning, and hence different interpretations depending on the context, undoubtedly contributes to the construction of the European project through the fulfilment of Member States’ economic, political, and social obligations. EU financial support helps candidate and potential candidate countries adopt and implement the political, institutional, legal, administrative, social, and economic reforms necessary to comply with EU values and progressively align with the Union’s rules, standards, policies, and practices with a view to accession, thereby contributing to their stability and security, strengthening the rule of law, enhancing EU cooperation and convergence,3 also with regard to the EU’s climate objectives.4 1

Schuman Declaration, presented by French foreign minister Robert Schuman on 9 May 1950. Communication from the Commission to the European Parliament, the Council, the European economic and social committee and the Committee of the regions (20 July 2021) 2021 Rule of Law Report - The rule of law situation in the European Union, COM/2021/700 final. 3 The regular political dialogue, established through the recent EU-Western Balkans summits, reaffirmed the solidarity and support of the EU (the largest investor and the main donor in the region) to respond to the COVID-19 pandemic, support long-term development and a sustainable recovery. The Economic and Investment Plan aims to bridge the socio-economic gap between the region and the EU, providing assistance to the region through investments and policy initiatives in the areas of transport, energy, digital transition, green agenda, support to the private sector, economic integration, innovation and support for human capital development. To implement this plan, the EU is mobilising up to EUR 9 billion of IPA III funding for the period 2021–2027, including up to EUR 1 billion to establish the Western Balkans Guarantee Facility, expected to crowd in capital for approximately EUR 20 billion in investments in the next decade. A continued emphasis on good neighbourly relations and regional cooperation will be necessary to achieve the Plan’s objectives. See Communication from the Commission to the European Parliament, the Council, The European Economic and Social Committee and the Committee of the Regions (19 October 2021) 2021 Communication on EU Enlargement Policy, COM/2021/644 final. 4 In the Union’s current and future economic, legal and social challenges there also is the climate issue. The transition to modern, carbon-neutral, climate-resilient and resource-efficient economies requires ambitious goals to unlock the potential of the circular economy, combat pollution and 2

Introduction

3

However, the European Court of Auditors, in its conclusions of a special report of 9 November 2021 on EU support for the rule of law in the Western Balkans, states that after more than 20 years of political and financial efforts in the region, ‘despite some recent positive developments, the Commission and other international organisations report limited progress in the area of rule of law. Key challenges remain in areas such as independence of the judiciary, concentration of power, political interference and corruption, which require further efforts to promote reforms in these areas’. These findings are linked to low levels of political will, institutional resistance to change, and inadequate participation or marginalization of civil society.5 With its 2018 Communication on ‘A credible enlargement perspective for and enhanced EU engagement with the Western Balkans’6 and its subsequent 2020 Communication ‘Enhancing the accession process - A credible EU perspective for the Western Balkans’,7 the Commission set out its strategic direction to address the structural weaknesses in the countries concerned with a renewed approach to the rule of law. The Commission defined the rule of law as ‘the backbone of any modern constitutional democracy’,8 from which the principles of: (1) legality, according to which the law-making process must be transparent, accountable, democratic, and pluralistic; (2) legal certainty; (3) prohibition of arbitrariness on the part of executive powers; (4) effective judicial protection, including access to justice, by independent and impartial courts, as well as fundamental rights; (5) separation of powers; (6) non-discrimination and equality before the law. These are fundamental and founding values of the EU, crucial aspects of the democratic transformation at the heart of both the stabilization and association process,9 enlargement, and the essential benchmark against which progress towards EU membership is assessed.

improve waste management. Climate neutrality to be achieved by 2050 opens interesting scenarios on what could be called a ‘fundamental right to climate stability’ with a direct impact on the protection of health, the environment and human rights. 5 European Court of Auditors (2022) Special Report: EU support for the rule of law in the Western Balkans: despite efforts, fundamental problems persist, Executive Summary, point 8, p. 5 and p. 52: ‘[w]e recommend that the Commission strengthen the mechanism to promote rule of law reforms, step up support to civil society organisations and independent media, strengthen the use of conditionality, reporting and monitoring of projects’. 6 Communication from the Commission to the European Parliament, the Council, the European economic and social committee and the Committee of the regions (6 February 2018) A credible enlargement perspective for and enhanced EU engagement with the Western Balkans, COM/2018/ 065 final. 7 Communication from the Commission to the European Parliament, the Council, the European economic and social committee and the Committee of the regions (5 February 2020) Enhancing the accession process - A credible EU perspective for the Western Balkans, COM/2020/57 final. 8 Proposal for a regulation of the European Parliament and of the Council (2 May 2018) on budget protection of the Union in the event of generalized deficiencies as regards the rule of law in the States members, COM/2018/324 final - 2018/0136 (COD). 9 Good neighbourly relations and regional cooperation, which are key elements of the enlargement process as well as the Stabilisation and Association Process, continue to remain a problematic

4

L. Ferrara

Nevertheless, EU civilian Common Security and Defence Policy (CSDP) missions, such as the European Union Police Mission in Bosnia and Herzegovina (EUPM Bosnia and Herzegovina) and the European Union Rule of Law Mission in Kosovo (EULEX Kosovo) have contributed to maintaining security and stability in the Western Balkans, but their role in the ‘Europeanisation’ of national political systems has been limited. The debate on the effectiveness of EU civilian missions to support specific aims in the context of the CSDP was already addressed by the European Parliament in 2015. Indeed, it highlighted the structural shortfalls that had been evident for years, such as ‘inefficiency as regards immediate reactions to civilian and military actions, lengthy and inflexible decision-making processes, the need for greater solidarity among Member States in funding missions, mission mandates which are unsuited to the operational environment, budgetary constraints, the problem of ‘force generation’, and logistical and financial inertia’.10 The EU’s expectations remain high for Balkan partners to further strengthen their cooperation in the Common Foreign and Security Policy (CFSP), make tangible and sustainable progress towards full alignment with EU foreign policy positions and act accordingly, including positions taken in international fora, as an important part of their European path. All Western Balkan countries have made some progress in the area of external relations, with the exception of Bosnia and Herzegovina where progress has been limited. Alignment with the EU CFSP (Union Statements on Foreign Affairs and Security Policy, and Council decisions) is an important aspect of the EU integration process and underlines the strategic orientation of States. The path toward European Union integration has shown that one of the fundamental elements of a functional rule of law is the ability to control the powers of political and economic elites, intrinsically linked to the fight against corruption and organized crime. Transparency International, a non-governmental organization, reported that criminal justice systems often fail to effectively investigate, prosecute, and sanction high-level corruption cases, and those convicted often receive disproportionately light sentences. The Western Balkan governments have passed

aspect. For the still open cases of missing persons and war crimes issues, decisive efforts are needed to foster reconciliation and regional stability, as well as to identify and implement defined, inclusive and binding solutions, in line with international law and established principles. Limited progress has been made in addressing important outstanding bilateral issues, including border issues and the need to bring justice to the victims of war crimes, to trace people still missing and to establish an accurate track record of past atrocities. Taking the case of Kosovo for example, the implementation of the war crimes strategy continues to be hampered by the political context, lack of resources and lack of international and regional cooperation. Concerns remain about the willingness to establish the responsibilities of some members of the former Liberation Army of Kosovo and more efforts are called for to end impunity Commission (Staff Working Document—Kosovo 2021 Report). In these cases, there is a clear need for meaningful regional cooperation, as well as full cooperation and support for the work of the Kosovo Specialist Chambers and Specialist Prosecutor’s Office and in general for the work of the International Residual Mechanism for Criminal Tribunals. 10 European Parliament resolution of 21 May 2015 on the implementation of the Common Security and Defence Policy (based on the Annual Report from the Council to the European Parliament on the Common Foreign and Security Policy).

Introduction

5

numerous laws that favor clientelism, with consequences such as awarding privileged contracts, monopolies in certain sectors, and the recruitment of low-skilled civil servants.11 Corruption, including arbitrariness and the abuse of power, negatively affects the principles of legality and legal certainty, undermining trust in cooperation among States and that of citizens in institutions. The rule of law is also a key factor of economic growth. While Western Balkan countries have significant economic potential, weaknesses in the rule of law, poorly functioning institutions, and State interference hamper economic development. Corruption continues to be widespread, while substantial efforts and a solid track record are needed to mitigate threats to democratic governance, legal certainty, and the economy to ensure a stable and transparent business environment. Organized crime also remains a threat to the region and affects citizens, businesses, state institutions, and the economy as a whole. Powerful criminal organizations with a global reach easily operate across borders, including in the EU. The governments have reacted by stepping up operational police cooperation with the EU, specifically through the EMPACT platform, and with EU agencies in areas such as drug trafficking, migrant smuggling, human trafficking, organized property crime, smuggling excisable goods (mainly cigarettes) and firearms. The new EU 2021–2025 ‘Strategy to tackle Organised Crime’ confirmed the EU’s commitment to continue prioritizing capacity building projects in third countries, including enlargement States. The aim is to support operational cooperation and help equip partners with tools that allow them to root out complex criminal structures. However, the number of final convictions shows that law enforcement authorities and the judiciary’s capacity to successfully investigate, prosecute, and try important cases of organized crime, and thus deter potential perpetrators, remains inadequate. Conversely, a positive example in the region is Albania, which has continued to make good progress in the overall reform of its judiciary, including concrete results in the vetting process. The Constitutional Court is now fully operational and has started to rule on important cases. Vetting of the judiciary, and the establishment of a specialized body to fight corruption and organized crime are yielding results, and Albania has also made good progress in international police cooperation, leading to the arrest of leading figures, and the fight against drug production and trafficking. Albania also adopted a new national cross-sector counter-terrorism strategy and action plan in December 2020, delivering on its obligations under JAP.12 On anti-money laundering, Albania has continued to further align its legislation with EU acquis. This also applies to the fight against human trafficking, including the protection and support of victims. However, further efforts are needed to speed up tracing ill-gotten assets through financial investigations and ensuring more effective confiscation and recovery of criminal profits. In addition, law-enforcement agencies need

11

Transparency International, Captured states in the Western Balkans and Turkey. Built upon European Commission’s Western Balkans Strategy of 6 February 2018, the Joint Action Plan on Counter-Terrorism for the Western Balkans (October 2018) was followed by two arrangements with Albania and North Macedonia, signed on 9 October 2019. 12

6

L. Ferrara

to step up their capacity to address the emergence of new criminal activities, such as various forms of cyber criminality, through enhanced cooperation. Indeed, cooperation in the fight against terrorism and the prevention of radicalization continues to be of key importance. Hybrid threats, including cyber-attacks, and above all, disinformation and misinformation, continue to be a serious problem in enlargement countries. State and non-State actors, also external, continue to spread disinformation to challenge the EU’s credibility, undermine citizens’ trust in democratic institutions, and accentuate polarization. The European External Action Service and the Commission have deepened the political dialogue with enlargement partners on countering hybrid threats, in particular through cyber resilience, critical infrastructure protection, strategic communication, and the fight against disinformation. Furthermore, respect for the rule of law and fundamental rights has been challenged in a number of Member States, fueling a very topical debate. Several times, for instance, Hungary and Poland have been ‘on trial’ due to attacks on lesbian, gay, bisexual, transgender, intersex, and queer (LGBTIQ) rights, the independence of the judiciary, freedom of the press, the rights of women and certain civil society groups. The situation in these two countries led to strong reactions from European institutions, and for the first time the European Commission, supported by the majority of the European Parliament13 decided to trigger the activation of the conditionality mechanism of the European budget, thus suspending 7.5 billions of European funds that should be given to Hungary. The European Court of Justice (ECJ) recently dismissed actions brought by Hungary and Poland against the conditionality mechanism that renders funding from the EU budget conditional on Member States respecting the principles of the rule of law.14 These two countries appealed to the European Court of Justice seeking the annulment of the regulation establishing a system of conditionality for the protection of the EU budget in the event of breaches of the principles of the rule of law in Member States. The Court recalled that respect for the common values on which the European Union is founded, as identified and shared by Member States, and which define the very identity of the European Union as a legal order common to these States, including the rule of law and solidarity, justifies mutual trust between States. Since observance is therefore a condition of the enjoyment of all rights deriving from the application of the Treaties to a Member State, the European Union must be able to defend those values, within the limits of its powers. On the one hand, the Court stated that compliance with these values cannot be reduced to an obligation that a candidate State is required to fulfil in order to join the European Union and from which it could escape as a result of its accession. On the other hand, the Court stressed that the Union budget is one of the main instruments giving 13

European Parliament resolution of 24 November 2022 on the assessment of Hungary’s compliance with the rule of law conditions under the Conditionality Regulation and state of play of the Hungarian RRP. 14 European Court of Justice (Full Court), Judgment (16 February 2022), Case C-156/21, Hungary v Parliament and Council; European Court of Justice (Full Court), Judgment (16 February 2022), Case C-157/21, Poland v Parliament and Council.

Introduction

7

concrete expression to the fundamental principle of solidarity between Member States in the Union’s policies and activities. The review of progress in the ‘2021 Communication on EU Enlargement Policy’15 shows that fundamental rights are largely enshrined in the legislation of the Western Balkans, but their effective implementation remains difficult. In particular, the protection by courts is insufficient in a number of policy areas. Overall, there have been limited or even non-existent developments in most of the region. Freedom of expression, media freedom, and pluralism are fundamental pillars of a democratic society and need to be respected, but progress overall is limited or non-existent. Despite the non-discrimination laws and policies broadly in place, discrimination cases, hate crime, and hate speech are inadequately followed up. While the legal protection LGBTIQ rights has improved, laws need to be respected in practice, as discrimination and hate speech are still all too frequent. Moreover, initiatives are needed to strengthen the rights of children and build resilient child protection and childcare systems, promote and strengthen gender equality, and combat genderbased violence, protect the rights of persons with disabilities, including their transition to community-based care services and independent living, in line with the requirements of the UN Convention on the Rights of Persons with Disabilities. The protection of minorities and their participation in public life also require continued attention, and all recommendations made by international and regional human rights monitoring bodies, including those concerning detention conditions and the prevention of ill-treatment, need to be followed up. Efforts to improve the independence, transparency, accountability, quality, and efficiency of national justice systems increase mutual trust, indispensable for judicial cooperation in civil and criminal matters. Equally important is the approximation of Member States’ legislation in various areas to facilitate mutual recognition of judgments and judicial decisions (e.g., in the area of detention and transfer of prisoners, the European Arrest Warrant, the European Investigation Order in criminal matters, confiscation and freezing of assets and financial penalties, decisions in civil and commercial matters), remove obstacles to judicial proceedings, and access to justice in cross-border situations. Institutional checks and balances are vital to the rule of law and ensuring that the power exercised by a State authority is subject to democratic control. Constitutional reforms have been launched in several Member States to strengthen the institutional checks and balances, putting in place systematic strategies to involve stakeholders and ensure that broad debate in society leads to structural reforms. When reforming their justice systems, Member States must respect the requirements set by EU law and ECJ case law, guaranteeing the effectiveness of the rights set out in the EU Charter of Fundamental Rights. The concept of ‘mutual trust’ is both a positive driving force in the realization of the European project, and a negative and paralyzing element in the path toward a united Europe in view of its diversity. Also fundamental is ensuring full respect of human rights internally and externally, as well as the realization of an area of

15

See supra, note 3.

8

L. Ferrara

freedom, security, and justice without internal borders in which laws are applied effectively and uniformly, and budgetary allocations are spent in accordance with the applicable rules. The efficient and coordinated management of external borders is considered a key element of ensuring trust between Member States. In particular, cooperation with partner countries in the Western Balkans and the Union’s wider neighborhood, strengthening the Frontex mandate, setting up the European Border and Coast Guard standing corps, improving the interoperability of information systems related to borders, migration, security, and justice (so that they ‘dialogue’ with each other), and police and judicial cooperation with Member States and agencies working in the area of justice and home affairs. In addition, migration that is structurally cross-border and difficult to manage by individual Member States is another common challenge that requires comparison and support in many respects, such as improving asylum systems, combating migrant smuggling, human trafficking, illegal migration, exchange of information, reception capacity, border management, legal and safe avenues to Europe for people in need of protection, cooperation on returns, support by Frontex, the European Union Agency for Asylum, and Europol. Along the Balkan route, recent years have seen cyclical humanitarian crises involving migrants transiting to the European Union, apprehended by walls or pushbacks, collected, isolated, and forced into refugee camps (also financed by European funds), long waiting times, and illegal border crossings. The massive migration flows to Europe over the past years have revealed serious shortcomings in EU governance and criticalities inherent in the external dimension of migration. The Dublin Regulation,16 around which the functioning of the Common European Asylum System revolves, has proven entirely inadequate. The excessive use of the State of first entry criterion has placed disproportionate responsibility on frontline States, resulting in secondary movements that in turn led to the reintroduction of controls at the internal borders of the Schengen area and the reform of the Schengen Borders Code. This disproportionality has been compounded by lack of solidarity among Member States in managing the exceptional migratory pressure, contrary to Article 80 of the Treaty on the Functioning of the European Union, according to which policies on border controls, asylum, and immigration must be governed in light of the principles of solidarity and fair sharing of responsibility among Member States, including the financial implications. While the Schengen area is one of the greatest successes of European integration, its holding has been strained by different events, such as migration flows (recently, in the case of the Poland-Belarus border and war in Ukraine, the problem of their instrumentalization has also arisen), terrorist attacks, or the COVID-19 pandemic, which prompted Member States to reintroduce internal border controls. The

16 Regulation (EU) No 604/2013 of the European Parliament and of the Council (26 June 2013) establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person, in O.J. L 180/31.

Introduction

9

proposed reform of the Schengen Borders Code seeks to respond to the proper functioning of the Schengen area, but also introduces a procedure for transferring irregular migrants apprehended at internal borders to the Member States from which they came. This is relevant to the issue of secondary movements and the dynamics concerning States of first entry that request some solidarity from destination States, albeit subject to their different political views. To provide answers in support of the most geographically exposed countries, European institutions have for years attempted to correct asymmetries regarding the balance of solidarity, fair sharing of responsibility, and obligations arising from the application of the Dublin Regulation. In 2015, the Commission presented the European Agenda on Migration, which foresaw a temporary relocation mechanism aimed at redistributing applications for international protection among Member States based on a system of mandatory quotas. The temporary relocation mechanism was designed to derogate from the rigid hierarchy of the Dublin criteria and remedy its collateral effects on the ‘ratio’ of the principle of solidarity. The results were unsuccessful due to the resistance of several Member States (in particular the Visegrád Group) to respect the quotas. In 2016, the European Commission published a Communication launching the Common European Asylum System reform, followed by legislative proposals. During the legislative procedure, conflicting political views on the reform emerged as well as the impossibility of finding a common position in the Council. To overcome the deadlock on the reform of the Dublin Regulation, and with it the Common European Asylum System, the Commission in 2020 presented the ‘New Pact on Migration and Asylum’ stressing that ‘the New Pact recognises that no Member State should shoulder a disproportionate responsibility and that all Member States should contribute to solidarity on a constant basis’.17 The Commission therefore withdrew its 2016 proposal to recast the Dublin Regulation, replacing it with the Regulation on Asylum and Migration Management (AMMR).18 Despite the declaration of principles contained in the New Pact communication, what clearly emerged from AMMR was that the Dublin system and the criterion of responsibility of the State of first entry were to be maintained, ending up thwarting the novelty that the New Pact intended to offer. In general terms, the New Pact proposals exposed the asymmetry between the mandatory nature of procedures at external borders, including pre-entry, which fall on States of first entry with the aim of preventing secondary movements, and flexible solidarity schemes whereby the compulsory nature for other Member States was completely uncertain. Indeed, the new solidarity mechanism obliges all Member States to participate in ‘solidarity contributions’, giving them flexibility in deciding how to fulfil their commitment according to different situations. These solidarity 17

Communication from the Commission to the European Parliament, the Council, the European economic and social committee and the Committee of the regions (23 September 2020) on a New Pact on Migration and Asylum, COM/2020/609 final, para. 1. 18 Proposal for a Regulation of the European Parliament and of the Council (23 September 2020) on asylum and migration management and amending Council Directive (EC) 2003/109 and the proposed Regulation (EU) XXX/XXX [Asylum and Migration Fund], COM/2020/610 final.

10

L. Ferrara

contributions consist of relocation, return sponsorship, and other contributions (measures to strengthen a specific Member State’s capacity in the field of asylum, reception or return through human, financial, or other means means). The solidarity mechanism is the result of a compromise aimed at ‘satisfying everyone’, but does not solve the root problems because States of first entry cannot be considered satisfied by maintaining the Dublin system and the lack of a mandatory, automatic, and permanent relocation mechanism. Other questions concern the ‘pre-entry’ proposal introducing the screening of third-country nationals at external borders and a regulation establishing a common procedure for international protection in the Union, consisting of a sort of legal fiction of ‘non-entry’ into the European territory of irregular migrants subject to screening ‘carried out at or near the external borders’. There will probably be a need for closed centers in States of first entry that risk becoming ‘hotspots’ for the rest of Europe. If this is the pathway of future procedures for processing asylum applications, returns, detention, and transfers, the challenge of protecting and respecting the human rights of migrants and asylum seekers is inevitably linked to the rule of law. The European Court of Human Rights has in fact consistently held that the rule of law is a concept inherent in all articles of the Convention for the Protection of Human Rights and Fundamental Freedoms, and despite the absence of a specific right to asylum, guarantees substantive protection under other fundamental rights, such as the right to life,19 the prohibition of inhumane and degrading treatment,20 the right to private and family life,21 through the protections afforded by the rule of law, such as non-discrimination and equality before the law, legality and legal certainty, the availability of effective remedies, and the right to a fair trial. A commonly held view is that the formal and informal agreements the EU concludes with third countries of transit are aimed at reducing and discouraging irregular migration to the EU, including those who seek protection. On several occasions in the parliamentary debate on cooperation with third countries of origin and transit, there have been allegations that the EU uses externalization policies to limit access to the European territory and the rights that the EU declares it intends to fully guarantee. As part of the New Pact, the Commission also presented ‘Commission Guidance on the implementation of EU rules on definition and prevention of the facilitation of

19

European Court of Human Rights (Second Section), Judgment (13 April 2010), Applications nos. 32940/08, 41626/08, 43616/08, Tehrani and Others v Turkey, paras. 56–57; European Court of Human Rights (Fourth Section), Judgment (2 March 2010), Application no. 61498/08), Al-Saadoon and Mufdhi v the United Kingdom, para. 123. (Applications nos. 32940/08, 41626/08, 43616/08). 20 European Court of Human Rights (Fourth Section), Judgment (2 March 2010), Application no. 61498/08), Al-Saadoon and Mufdhi v the United Kingdom, para. 115 et seq. 21 European Court of Human Rights (Grand Chamber), Judgment (9 July 2021), Application no. 6697/18, M.A. v Denmark, paras. 131–139.

Introduction

11

unauthorised entry, transit and residence’.22 Despite the worthy intention of avoiding the criminalization of humanitarian assistance, it would undoubtedly have been preferable to promote reform addressing the limitations and shortcomings of existing legislation. With regard to the crime of facilitating illegal immigration, the discretion that EU legislation leaves to Member States has created a situation of uncertainty that places the same NGOs (whose activities, especially in search and rescue operations, have been hampered by differentiated national measures) in a ‘grey area’ of the applicable law.23 Significantly, the politicization and polarization of the migration issue is correlated with public opinion that influences politics and requires consensus. Political actors tend to listen carefully to and observe the feelings of the public, sometimes artificially generating anger, fear, or hostility towards foreigners, to then ‘respond to the needs of citizens’ that they have themselves created. Anti-migrant sentiments are generally a product of perceived threats to public order, economic, cultural, and religious ideologies that lead to negative attitudes and often transcend into hatred and intolerance. Mass media, disinformation, and fake news play a key role in these social destabilization dynamics. In a world increasingly subject to turbulence and instability, identifying and addressing the evolving threats that go beyond geographical borders will require EU resilience towards security, cognizance of shared responsibility, and a much broader perspective than in the past whereby cooperation with international partners and the increasing interconnection between internal and external security must be combined with respect for fundamental rights and European values, overcoming the false distinctions between the physical and digital spaces. Laura Ferrara is a lawyer and she has a Ph.D. in Theory and History of Human Rights at the University of Florence. Elected to the European Parliament in 2014 and in 2019, she has been Vice Chair of the Legal Affairs Committee and she is still full member of the Civil Liberties, Justice and Home Affairs Committee as well as full member of the Delegation to the ACP-EU Joint Parliamentary Assembly. She is also a member of the Special Committee on Foreign Interferences on the democratic process of the EU, including disinformation and a member of the Inquiry Committee on the use of the Pegasus System. She was rapporteur for the European Parliament of several Reports, such as the Regulation on common procedure for international protection in the Union, the implementation report of the

22 Communication from the Commission (23 September 2020) Commission Guidance on the implementation of EU rules on definition and prevention of the facilitation of unauthorised entry, transit and residence, COM/2020/6470 final. 23 Communication from the Commission to the European Parliament, the Council, the European economic and social committee and the Committee of the regions (23 September 2020) on a New Pact on Migration and Asylum, COM/2020/609 final, para. 5: ‘[t]he Commission will bring clarity to the issue of criminalisation for private actors through guidance on the implementation of the counter-smuggling rules, and make clear that carrying out the legal obligation to rescue people in distress at sea cannot be criminalised’.

12

L. Ferrara

environmental liability Directive, the Report on the situation of fundamental rights in Europe (2013 and 2014), the Report on the fight against corruption and organised crime and the Report on public access to documents. During her first mandate, she was actively involved in the negotiations on the reform of the European common asylum system.

Part I

EU Enlargement and Stabilization Process in the Light of the Rule of Law and Solidarity Principles

Stabilization of the Western Balkans and the Impact of the Rule of Law on the Prosecution of War Crimes in Kosovo: Some Reflections on the Kosovo Specialist Chambers and Specialist Prosecutor’s Office Erjon Hitaj

Abstract This chapter focuses on the EU’s efforts to promote stabilization in the Western Balkans, particularly with regard to Kosovo. The creation of the Kosovo Specialist Chambers and Specialist Prosecutor’s Office was the direct result of diplomatic pressure exerted by the EU and US on the Kosovo Government to avoid the involvement of the Security Council in the institution of any new tribunal for war crimes in Kosovo. Under this international pressure, and with the clear intention of conducting an independent criminal investigation of events in Kosovo during the armed conflict of 1998–2000, the Kosovo Parliament passed a constitutional amendment and a Law on Specialist Chambers and the Specialist Prosecutor’s Office on 3 August 2015, thereby creating a sui generis hybrid court. The specific jurisdiction of this special tribunal situated in The Hague (Netherlands) includes crimes against humanity, war crimes, and other transnational and international crimes committed in the Kosovo territory between 1 January 1998 and 31 December 2000 in response to allegations published in the Council of Europe Parliamentary Assembly Report of 7 January 2011. This special Court is composed of international judges divided into Panels for each level of domestic jurisdiction. As a clear example of transitional justice, the creation of this special Court might provide a measure of justice for victims, guarantee effective accountability for the perpetrators, and help stabilize the region. Only the outcome of the Court’s activity will show whether the exigencies of justice and stability will prevail over nationalism and ethnic rivalries, strengthening the region’s stability and its natural integration in the European Union.

E. Hitaj (✉) Public International Law and European Union Law University ‘Ismail Qemali’ of Vlore, Vlorë, Albania e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 T. Russo et al. (eds.), Solidarity and Rule of Law, European Union and its Neighbours in a Globalized World 9, https://doi.org/10.1007/978-3-031-29227-9_2

15

16

E. Hitaj

1 Introduction On 3 August 2015, the Parliament of Kosovo passed a constitutional amendment1 and a subsequent law on the creation of the Specialist Chambers (SC) and the Specialist Prosecutor’s Office (SPO)2 with the clear mandate to investigate and prosecute serious crimes committed in the territory of Kosovo during the conflict between 1 January 1998 and 31 December 2000.3 This new tribunal has its origins in the report of the Parliamentary Assembly of the Council of Europe on ‘Inhuman treatment of people and illicit trafficking in human organs in Kosovo’, the so-called Dick Marty Report.4 According to this Report, members of the Kosovo Liberation Army (KLA) allegedly committed crimes against Albanians (collaborators) and Serbs.5 One of the most crucial points of this Report was the international authorities’ concern over the significant number of people which were declared disappeared after KFOR troops entered the country on 12 June 1998.6 Based on the evidence and information in this Report, the European Union in May 2011 established the Special Investigative Task Force (SITF) to conduct a professional and independent investigation of the Report’s findings within the framework of the European Union Rule of Law Mission in Kosovo (EULEX). EULEX began its activity in 2008 under the EU Common Security and Defence 1

Law no. 05/D-139 (3 August 2015) Amendment no. 24 of the Constitution of Kosovo, available at: www.scp-ks.org/sites/default/files/public/amendment_of_the_constitution_-no_24.pdf. 2 Law no. 05/L-053 (3 August 2015) On Specialist Chambers and Specialist Prosecutor’s Office, available at: www.scp-ks.org/sites/default/files/public/05-l-053_a.pdf. 3 Law no. 05/L-053, Art. 7. 4 www.scp-ks.org/sites/default/files/public/coe.pdf. 5 Doc. 12462 (7 January 2011) Inhuman treatment of people and illicit trafficking in human organs in Kosovo, p. 6, para. 4: ‘[t]he acts with which we are presently concerned are alleged to have occurred for the most part from the summer of 1999 onwards, against a background of great confusion throughout the region. The Serbian security forces had abandoned Kosovo, and the troops of KFOR (NATO’s international Kosovo Force) were making a rather slow start in establishing themselves, while tens of thousands of Kosovar Albanian refugees were first trying to reach Albania and then to return home, with ethnic Serbs in turn seeking refuge in the territories controlled by the Serbian army [. . .] It was chaos: there was no functioning administration on the part of the Kosovars, and KFOR took quite some time to gain control of the situation, evidently not possessing the know-how needed to cope with such extreme situations. It was in the course of this critical period that numerous crimes were committed both against Serbs who had stayed in the region and against Kosovar Albanians suspected of having been ‘traitors’ or ‘collaborators’, or who fell victim to internal rivalries within the KLA. These crimes have largely gone unpunished, and it is only years later that a rather diffident start has been made to deal with them’. See Parliamentary Assembly of the Council of Europe Resolution 1782/2011 (25 January 2011) Investigation of allegations of inhuman treatment of people and illicit trafficking in human organs in Kosovo. 6 Three days before this date, the Kumanovo Agreement was signed, namely the Military Technical Agreement between the International Security Force (KFOR) and the Governments of the Federal Republic of Yugoslavia and the Republic of Serbia (9 June 1999). See www.nato.int/kosovo/docu/ a990609a.htm.

Stabilization of the Western Balkans and the Impact of the Rule of Law. . .

17

Policy7 with the mission to ‘support relevant rule of law institutions in Kosovo on their path towards increased effectiveness, sustainability, multi-ethnicity and accountability, free from political interference and in full compliance with international human rights standards and best European practices’. The two main EULEX pillars are monitoring (the judiciary and correctional service) and operational activities, including ensuring compliance with the rule of law, human rights, the rights of minorities, judiciary independence, multi-ethnic minority rights, amongst other. Its mandate covers supporting the local police as a second security responder in the country. In the Decision of the European Union Political and Security Committee, the revisions to the EULEX Operational Plans of 2011 foresaw the creation and establishment of the Special Investigative Task Force (SITF).8 The SITF mandate included, amongst others, investigating and prosecuting individuals responsible for the crimes of organ harvesting, unlawful detention, deportation, inhuman acts, torture and killing of innocent people.9 According to the Marty Report, a great number of crimes were supposed to have been committed in Albania, and the Albanian Parliament passed a specific law to permit SITF to conduct independent and autonomous investigations in its territory.10 This law provided for unlimited assistance and investigative jurisdiction for members of SITF during their activities in Albania. Other countries in the region also offered similar access and collaboration. On 23 April 2014, the Parliament of Kosovo passed a specific law11 on the ratification of an ‘international’ agreement signed with the European Union (under

7 The initial legal basis for the launch and operation of EULEX was the Council Joint Action 2008/ 124/CFSP (4 February 2008) on the European Union Rule of Law Mission in Kosovo (EULEX KOSOVO), O.J. L 42/92. The actual mandate was prorogated to 2023 due to the adoption of the last Council Decision 2021/904/CFSP (3 June 2021) amending the Joint Action 2008/124/CFSP on the European Union Rule of Law Mission in Kosovo (EULEX KOSOVO), O.J. L 197/114. 8 European External Action Service, Political and Security Committee (23 May 2011) Revised Annex A of the Operation Plan (OPLAN) for the European Union rule of law Mission in Kosovo, EULEX KOSOVO, ST 10526 2011 INIT - COVER NOTE. See also Report S/2011/514 of the Secretary-General to the Security Council of (12 August 2011), para. 6; Report S/2012/72 of the Secretary-General to the Security Council (31 January 2012), Annex I ‘Report of the European Union High Representative for Foreign Affairs and Security Policy to the Secretary-General on the Activities of the European Union Rule of Law Mission in Kosovo’, p. 15. 9 Club Bruxelles (March 2014) Special Investigative Task Force, Factsheet: ‘[t]he SITF is an autonomous entity that derives its jurisdiction and legal authority from the European Union Council Decision establishing the EU rule of law mission in Kosovo (EULEX). The EULEX mandate includes executive responsibilities in Kosovo for specific areas of competence, such as war crimes, ethnically motivated crimes and organised crime, as well as cases deemed too sensitive to be tried by local judicial authorities. Hence, the SITF operates within the Kosovo justice system and in accordance with the applicable law in Kosovo’. 10 Law no. 53/2012 (10 May 2012) Jurisdictional relations in criminal field with the Special Investigative Task Force of EULEX. See the integral text (in Albanian) at www.qbz.gov.al/eli/ fz/2012/51/ec159068-6744-450c-bdc8-2735be03484e. 11 Law no. 04/L-274 (14 April 2014) Ratification of the International Agreement Between the Republic of Kosovo and the European Union on the European Union Rule of Law Mission in

18

E. Hitaj

the form of exchange of letters12 between the President of Kosovo and the High Representative of the Union for Foreign Affairs and Security Policy)13 on the consolidation and extension of the EULEX mandate to 15 June 2016. The President of Kosovo officially invited the EU to assume proper mutual obligations in favor of advancing the rule of law mission in Kosovo.14 According to the intentions of the Parties, ‘if the SITF investigations culminate in an indictment and trial proceedings [. . .] a specialist court within the Kosovo court system and a specialist prosecutor’s office would be used for any trial and appellate proceedings arising from the SITF investigation’.15 In July 2014, the SITF Chief Prosecutor announced the closure of the investigations while inviting the EU to ascertain adequate institutions to further the judicial proceedings.16 According to the Chief Prosecutor, at the conclusion of the

Kosovo. Full text of the law and the exchange of relative notes available at www.scp-ks.org/sites/ default/files/public/04-l-274_a.pdf. 12 Williams (2016), p. 29: ‘[w]hile this means that those letters have legal effect under Kosovo law, it is not clear whether the commitments evidenced by those letters create legal obligations for the EU. This uncertainty results from the EU’s reluctance to accord treaty-making status to Kosovo due to the lack of consensus as to its legal status among its members’. However, the 1969 Vienna Convention on the Law of Treaties (Art. 8) and 1986 Vienna Convention on the Law of Treaties between States and International Organizations (Art. 8) both consider acts of representatives of States or International Organizations—performed in absence of full powers—with legal effect only if subsequently confirmed by that State or International Organization. 13 Muharremi (2016), pp. 978–979: ‘Kosovo ratified the exchange of letters as an international agreement and published it explicitly as an international agreement between Kosovo and the EU. It may therefore be considered a subsequent confirmation of the agreement even if the EU High Representative did not have full powers to act on behalf of the EU [. . .] In relation to Kosovo, the EU High Representative has signed two letters which constituted twice an exchange of letters between Kosovo and the EU and which were ratified by Kosovo as an international treaty. The EU has never objected to this and it was not raised as an issue during the conclusion of the Stabilization and Association Agreement entered into between Kosovo and the EU. It could therefore be argued that the EU would be, taking into account the principle of good faith, estopped from invoking an eventual ultra vires conduct of the EU High Representative’. Art. 2 of the law considers the international agreement ‘an integral part of this law (Annex 1)’ to be implemented both by Kosovo and the EU. Annex 1 attached to the law exclusively concerns the exchange of letters of 14 April 2014 between the President of Kosovo, Jahjaga, and the High Representative of the European Union for Foreign Affairs and Security Policy, Baroness Ashton. 14 Letter of invitation of President Jahjaga to Baroness Ashton (14 April 2014), p. 1: ‘[i]n the spirit of good faith and to demonstrate our commitment to EULEX KOSOVO’s mandate and support to its mission, I invite Your Excellency [. . .] to reply with an expression of EU’s willingness to continue providing experienced and knowledgeable prosecutors, judges and police to serve in EULEX KOSOVO under the provisions of this letter’. See full text at www.scp-ks.org/sites/ default/files/public/04-l-274_a.pdf. 15 Ibid., pp. 2–3. 16 SITF (29 July 2014) Statement of the Chief Prosecutor of the Special Investigative Task Force: ‘[i]n regard to those crimes for which SITF has prosecutable evidence, the filing of an indictment will not occur until the specialist court designated to hear these cases is established – hopefully early next year. Between now and then, additional evidence may be brought to the fore and that would obviously affect the form of the indictment that is filed. So, this is an unusual – in fact, an

Stabilization of the Western Balkans and the Impact of the Rule of Law. . .

19

investigation process, it was not possible to gather sufficient evidence of massive organ harvesting and trafficking. In fact, while there was no clear evidence of the involvement of the upper leaders of the KLA, ‘compelling indicators’ of organ harvesting and trafficking emerged even if ‘this practice did occur on a very limited scale’. The Chief Prosecutor called for a specialist Court to be established as soon as possible to complete this new transitional justice phase in Kosovo.17 A year later, the Parliament of Kosovo passed the aforementioned constitutional amendments18 and the specific law19 on the establishment of the Specialist Chambers and Specialist Prosecutor’s Office.20 Part of Kosovan public opinion and the KLA veterans saw the establishment of this special Court as an attempt of rewrite history and damage the memory of martyrs who contributed to Kosovo’s liberation. Far from vintage nationalism, the more realistic view considered it a serious step toward rule of law standards and the application of the most relevant principles of transitional justice in a post-belligerent society: namely, national reconciliation and integration in the European Union.21

unprecedented – situation in international justice where a special prosecutor’s office has been set up with full investigative authorities and with a mandate to issue indictments, but where no viable court exists in which those indictments can be filed. So, the statement of findings that I am making today will only serve as a placeholder until the more authoritative indictment can be issued’. See full text at www.balkaninsight.com/wp-content/uploads/2019/01/Statement_of_the_Chief_Prosecutor_of_ the_SITF_EN.pdf?__cf_chl_managed_tk__=pmd_a819309f912f061a8811c9ea57a5d93 9a9c8fa9a-1629065187-0-gqNtZGzNAw2jcnBszQii. 17 Ibid., p. 5: ‘I strongly urge the Kosovo Government and Assembly and the EU to move quickly to finalize this process and to have this court in place early next year’. 18 A new article (No. 162, Specialist Chambers and Specialist Prosecutor’s Office) was added to the Constitution of Kosovo with the aim of providing a constitutional basis for the activities and functions of the new Tribunal and Prosecutor’s Office. The temporary mandate of the Tribunal is 5 years, unless notification of completion occurs earlier, in accordance with existing law. 19 Relevant among the sources of law to which this special Tribunal must refer (Art. 3) are the Constitution, international treaties, international customs, as well as international tribunal jurisprudence. 20 According to the Agreement between the Kingdom of the Netherlands and the Republic of Kosovo concerning the Hosting of the Kosovo Relocated Specialist Judicial Institution in the Netherlands (15 February 2016), the seat of this special tribunal is The Hague, Netherlands. 21 On 2 October 2015, three months after the establishment of the Specialist Chambers and Specialist Prosecutor’s Office, EU ‘rewarded’ Kosovo with the Stabilization and Association Process agreement. See Council of the European Union (2 October 2015) Stabilisation and Association Agreement Between the European Union and the European Atomic Energy Community, of the One Part, and Kosovo, of the Other Part, 10728/1/15, available at www.data.consilium. europa.eu/doc/document/ST-10728-2015-REV-1/en/pdf.

20

E. Hitaj

2 Nature, Jurisdiction, and Functions of the Kosovo Specialist Chambers The Specialist Chambers and Specialist Prosecutor’s Office, situated in The Hague by virtue of a special agreement between Kosovo and the Netherlands,22 might be considered as having a sui generis or hybrid nature.23 Indeed, these Chambers do not derive their legitimacy from any international instrument,24 despite the international appointment of judges, the foreign seat of the Chambers, the immunities granted to staff, and the exclusion of domestic jurisdiction from the crimes provided for in the organic law of the SC and SPO recall similar international tribunals.25 However, these chambers do not fully meet the criteria of an international tribunal,26 since they were not created through an international agreement or established by a UN Security Council resolution. Moreover, the SC and SPO can be ‘dissolved by an exercise of

22

Agreement between the Kingdom of the Netherlands and the Republic of Kosovo concerning the Hosting of the Kosovo Relocated Specialist Judicial Institution in the Netherlands (15 February 2016), available at www.scp-ks.org/sites/default/files/public/bwbv0006581-geldend_van_15-022016_tm_heden_zichtdatum_30-11-2016.pdf. 23 Office of the United Nations, High Commissioner for Human Rights (2008), p. 1, Rule-of-Law Tools for Post-Conflict States, Maximizing the legacy of hybrid courts: ‘[h]ybrid courts are defined as courts of mixed composition and jurisdiction, encompassing both national and international aspects, usually operating within the jurisdiction where the crimes occurred. This rule-of-law policy tool aims to serve two purposes: first, to explore the potential positive impact hybrid courts may have on the domestic justice system of post-conflict States so as to ensure a lasting legacy for the rule of law and respect for human rights; second, to examine how hybrid courts can receive the mandates and necessary political support required to be more effective in terms of legacy and capacity-building’. On the functioning of hybrid, internationalized, or mixed tribunals see also: Muharremi (2016), pp. 967–992, Borda (2011), Hayashi and Bailliet (2017), Squatrito et al. (2018), Schabas and Shannonbrooke (2017), Giorgetti (2012), Schabas and Bernaz (2011), Ciorciari and Heindel (2018). 24 Williams (2016), p. 29: ‘[t]he exchange of letters does not alter the characterization of the SC and SPO as internationalized. While the commitments contained in the exchange of letters are directly incorporated into Kosovo law, the exchange of letters does not establish the specialized institutions. Instead, the exchange of letters provides for a role for the EU in operating the SC and SPO, including the provision of staff’. 25 Schabas and Shannonbrooke (2017), p. 14: ‘[t]he requirement that an international court or tribunal be established by two or more sovereign states, by an inter-governmental organization, or by an inter-governmental organization and a sovereign state, has the consequence of excluding a somewhat nebulous category usually described as “hybrid” tribunals. Examples of such hybrid tribunals are the Extraordinary Chambers in the Courts of Cambodia and the Chambres africaines extraordinaires in Senegal. Although both tribunals have a substantial international presence, in that they apply international criminal law, include foreign judges, and are substantially funded from abroad, they remain national courts of the countries concerned’. 26 Schabas and Shannonbrooke (2017), p. 18: ‘[i]nternational courts and tribunals have been classified into five categories: inter-state judicial bodies, international criminal courts, judicial bodies of regional integration agreements, human rights courts, and international administrative tribunals’.

Stabilization of the Western Balkans and the Impact of the Rule of Law. . .

21

national sovereignty’.27 In any case, by reason of the potential pressure of the international community, mainly the US and EU as the greatest supporters of the independence and consolidation of the government of Kosovo, classifying these chambers as exclusively domestic would be reductive.28 Therefore, the involvement of the international community, mainly by means of EULEX, grants these chambers a sui generis nature.29 As such, the Specialist Chambers remain formally domestic as they do not present the clear substantive elements of international tribunals. According to the organic law (Articles 3 and 24), the main organs of the Court are the Specialist Chambers, the Prosecutor’s Office, and the Ombudsperson, with the support of the Registry whose responsibility, beyond administrative tasks, include the functions inherent in the SC’s proceedings and the Offices of defense, victim participation, detention, and Ombudsperson. The President of the Chambers is the highest judicial authority. The Chambers are divided into four levels attached to each branch of the court system in Kosovo, namely: Basic Court of Pristina, Court of Appeals, Supreme Court, and a special Chamber attached to the Constitutional Court. The latter, according to Article 3, deals with any constitutional referrals relating to the Specialist Chambers and Specialist Prosecutor’s Office. The Panels attached to the four branches of the Kosovo judiciary are normally composed of three judges, except for non-serious crimes where the Trial Panel may be composed of a monocratic judge. Independence from any government or any other source is a primary requisite of being part of the Specialist Chambers as well as proven experience in the field of criminal law and procedure as well as international law, ‘with extensive judicial, prosecutorial or defense experience in international or domestic criminal proceedings’. An independent selection panel of three international judges is responsible for selecting and recommending the appropriate candidates for appointment as members of the Specialist Chambers. These recommendations are forwarded to the Head of EULEX in Kosovo as the appointing authority.

Schabas and Shannonbrooke (2017), p. 14: ‘[i]f the mode of creation of tribunals sometimes gives way to confusion, the question to be asked ought to be how they can be terminated. A truly international court or tribunal can only be closed down by the agreement of two or more states or by the act of an inter-governmental body. On the other hand, a national court, even one with international characteristics, can be closed down in an exercise of national sovereignty. From the perspective of termination, there is no middle ground and no place for any ‘hybrid’. A tribunal is either international or it is national’. 28 According to the opinion of the Constitutional Court of Pristina, the sole legal basis for the establishment of the SP and SPO is the Constitution of Kosovo; Constitutional Court of the Republic of Kosovo, Judgment, Case No. KO26/15 (15 April 2015), available in English version at www.gjk-ks.org/wp-content/uploads/vendimet/KO26-15_ANG.pdf. 29 Muharremi (2016), p. 991: ‘[t]he various opinions of what hybrid courts actually are shows that there is uncertainty in identifying generally acceptable criteria for determining if a court is a hybrid court. When comparing the Specialist Chambers with existing courts, which are commonly referred to as hybrid courts, it becomes evident that the Specialist Chambers adds to the existing complexity and difficulty in determining what hybrid courts are’. 27

22

E. Hitaj

The Chambers and the Prosecutor’s Office are guaranteed full independence in exercising their functions. The only condition imposed is the respect and correct application of the sources of law under Article 3: the Constitution of the Republic of Kosovo, the organic law and other provisions of law as expressly indicated thereunder, customary and conventional international law as provided for in Articles 19 and 22 of the Constitution. The law also foresees the full legal personality of both the Chambers and the Prosecutor’s Office, including the legal capacity to sign international agreements falling within their field of competencies. Of particular interest is the temporal jurisdiction of the Chambers. According to Article 7, the jurisdiction covers the period from 1 January 1988 to 31 December 2000. Considering that the conflict started in the second half of 1998 and ended in June 1999, the decision to extend jurisdiction far beyond the end of hostilities and the establishment of United Nations Mission in Kosovo (UNMIK) could seem confounding. A possible explanation might be the need to prosecute crimes committed right after the end of hostilities and especially those perpetrated against Serbs, Roma, and residually Albanians considered collaborators. With regard to territorial jurisdiction, Article 8 provides for full and unlimited jurisdiction of crimes committed in the territory of Kosovo. Territorial jurisdiction is fundamental to determine the criminal liability of the authors of crimes under the material jurisdiction of the Chambers in the territory of Kosovo against citizens of Kosovo/former Yugoslavia. In case of concurrent jurisdiction, the Specialist Chambers enjoy primacy over ordinary jurisdiction in Kosovo. The prevalence of this jurisdiction grants the Chambers and the Prosecutor’s Office the right to decide the proceedings under proper jurisdiction, regardless of the apparent competence of any domestic court. The latter courts or prosecutors, at any stage or grade, in case of criminal offences under the jurisdiction of the Chambers, have the obligation to transfer the proceedings to the competent Chamber (Article 11). In terms of the applicable law, Article 12 sanctions the principle of legality in the criminal field. Both customary international law and substantive law might constitute a reference point for the Chambers and the Prosecutor’s Office, insofar as in compliance with customary international law in force at the time of the commission of crimes. In relation to material jurisdiction, to be considered are crimes against humanity, crimes falling under customary international law and perpetrated under the form of murder, extermination, enslavement, deportation, imprisonment, torture, rape, sexual slavery, enforced prostitution, forced pregnancy, any other form of sexual violence, persecution on political, racial, ethnic or religious grounds, enforced disappearance of persons and any other inhumane acts (Article 13). With regard to war crimes, as referring to current customary international law, the material jurisdiction of the Chambers includes grave breaches of the Geneva Conventions of 1949 or acts against persons or properties protected by these

Stabilization of the Western Balkans and the Impact of the Rule of Law. . .

23

conventions,30 other serious violations of the law and customs applicable in armed conflicts of a customary international nature,31 serious violations of Article 3 common to the four Geneva Conventions,32 other serious violations of the law and customs applicable in armed conflicts not of an international character recognized as such in customary international law.33 The same organic law guarantees to all those affected the principle of ne bis in idem (Article 17). Individuals who have been tried for the same crimes before Kosovo internal tribunals or the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 (ICTY), and vice versa, are excluded from the jurisdiction of the Specialist Chambers. Finally, Article 18 categorically excludes any previous or future amnesty in favor of individuals falling under the jurisdiction of the Specialist Chambers.34 As for procedural and evidence rules, the discretionary power granted to the Chambers mostly regarding the creation of procedural rules through acts,35 the creation of the panels, as well as the choice of the official and working language (between English, Albanian and Serbian) seem surprising.36 Formally the Specialist Chambers form part of the Kosovo judiciary, and except for the citizenship of judges

Law no. 05/L-053. Art. 14(1), a): ‘(i) Willful killing, (ii) Torture or inhuman treatment, including biological experiments; (iii) Willfully causing great suffering, or serious injury to body or health; (iv) Extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly; (v) Compelling a prisoner of war or other protected person to serve in the forces of a hostile power; (vi) Willfully depriving a prisoner of war or other protected person of the rights of fair and regular trial; (vii) Unlawful deportation or transfer or unlawful confinement; and (viii) Taking of hostages’. 31 Law no. 05/L-053, Art. 14(1), b). 32 Law no. 05/L-053, Art. 14(1), c): ‘In case of armed conflicts not of an international character, such as: (i) Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; (ii) Committing outrages upon personal dignity, in particular humiliating and degrading treatment; (iii) Taking of hostages; (iv) The passing of sentences and the carrying out of executions without previous judgement pronounced by a regularly constituted court, affording all judicial guarantees which are generally recognised as indispensable’. 33 Law no. 05/L-053, Art. 14(1), d). 34 ‘The jurisdiction of the Specialist Chambers shall not be subject to any amnesty granted under Article 65(15) of the Constitution. Any amnesty granted to any person for an international crime, a crime that resulted in grievous bodily injury or death, or a crime under Article 15(2), if falling within the jurisdiction of the Specialist Chambers, shall not be a bar to prosecution or punishment’. 35 Law no. 05/L-053, Art. 19(6): ‘[t]he Specialist Chambers shall have the power to adopt internal rules, policies and practice directions that are necessary for its proper functioning, the security or fairness of proceedings or to give effect to the provisions of this Law’. 36 Law no. 05/L-053, Art. 20: ‘[t]he official languages of the Specialist Chambers and Specialist Prosecutor’s Office shall be Albanian, Serbian and English. Upon taking office, the President of the Specialist Chambers, the Registrar and the Specialist Prosecutor shall each determine the official use of language for the exercise of their mandate. In any given proceedings, a Pre-Trial Judge or a Panel may decide the working languages for those proceedings, as appropriate and with full respect of the rights of the accused’. 30

24

E. Hitaj

and other staff, and the non-Kosovar seat of the tribunal, at least procedural rules inspired by the civil law system had been expected. However, there are some generic limitations on the creation of these rules, such as those regarding the international human rights standards of the European Convention on Human Rights, the International Covenant on Civil and Political Rights, or the Kosovo Criminal Procedure Code in force at the time of establishing the Specialist Chambers.37 In case of amending procedural rules, the judges make their decision in a plenary session, after consulting with the Prosecutor and the Registrar, the latter representing the interests of the defense and victims. The last word belongs to the Specialist Chamber of the Constitutional Court, which has the power to review these amendments within a restricted term of thirty days.38 Detailed dispositions enshrine the rights of the accused and victims, as well as guarantee and protect victims and witnesses. Most relevant standards of fair trial are granted to the accused in line with current international criminal court rules. These standards include the presumption of innocence, the right to a fair and public hearing, equality before the law, the right to be heard, the right to be tried within a reasonable time, the right of free assistance of an interpreter, amongst others.39 One of the most significant rights to the benefit of victims is their inherent right to reparation. Notification, acknowledgement, and reparations seem to be a strong point in protecting the rights of victims. In fact, it is the Chambers’ duty to guarantee the right of the victims to reparations through proper internal procedural rules.40

37 Law no. 05/L-053, Art. 19(2): ‘[t]he Rules of Procedure and Evidence shall reflect the highest standards of international human rights law including the ECHR and ICCPR with a view to ensuring a fair and expeditious trial taking into account the nature, location and specificities of the proceedings to be heard by the Specialist Chambers. In determining its Rules of Procedure and Evidence the Specialist Chambers shall be guided by the Kosovo Criminal Procedure Code 2012, Law No. 04/L-123’. 38 Law no. 05/L-053, Art. 19(5): ‘[f]ollowing adoption or amendment, the adopted Rules or amendment to the Rules shall be referred to the Specialist Chamber of the Constitutional Court, which shall have thirty (30) days to review the Rules or amendments to ensure compliance with Chapter II, including Article 55, of the Constitution. In the event that the Specialist Chamber of the Constitutional Court determines an inconsistency with the Constitution, that determination shall be sent to the Judges in Plenary for action on the affected provision or provisions. The Judges of the Specialist Chamber of the Constitutional Court shall not participate in that action’. 39 However, according to Law no. 05/L-053, Art. 21(5), ‘[t]he accused cannot represent him/herself without legal representation (mandatory representation) in the following circumstances: a. at hearings on detention on remand and throughout the time when he or she is in detention on remand; b. from the filing of an indictment, if the indictment has been brought against him or her for a crime punishable by imprisonment of at least ten (10) years; and c. in all cases when an accused seeks to enter into an agreement to plead guilty to a crime punishable by imprisonment of one (1) year or more’. 40 Law no. 05/L-053, Art. 22(3): ‘[a] Victim’s personal interest and rights in the criminal proceedings before the Specialist Chambers are notification, acknowledgement and reparation. The Specialist Chambers’ Rules of Procedure and Evidence shall include provisions relating to the reasonable reparation to Victims from an accused who has pled or been adjudged guilty of a crime (s) which has directly resulted in harm to the Victims. They shall also determine the content and

Stabilization of the Western Balkans and the Impact of the Rule of Law. . .

25

3 Specialist Prosecutor’s Office: Temporary Prosecutor with a Special Mandate The Specialist Prosecutor is the highest authority exercising full and exclusive competencies in the investigation and prosecution of individual authors of crimes falling under the jurisdiction of the Specialist Chamber, including conducting onsite investigations, collecting evidence, requesting the presence of and questioning suspects, victims, and witnesses, taking all the necessary measures in the interests of the confidentiality of information and evidence collected, carrying out criminal proceedings, ordering the temporary arrest of individuals (up to 48 hours) on the basis of the collected evidence, representing the allegations before the Chambers, exercising appellate rights in higher levels of the judiciary, coordinating police forces under proper authority in full compliance with the laws of Kosovo.41 At the same time, the law provides for the independence of the Special Prosecutor both from the Specialist Chamber and the domestic authorities of Kosovo. The Prosecutor and Office staff42 are not bound to receive instructions or any other kind of influence from the Kosovo government or other bodies. In fact, Article 35 prohibits any interference in the activities of the Prosecutor’s Office from any external actors.43 To guarantee continuity of the former SITF prosecutor’s activity, the uninterrupted transfer of the functions to the new Specialist Prosecutor’s Office, seated in the host State (Netherlands), is foreseen. The general rule on the operation of the Specialist Chambers and the Prosecutor’s Office regulates the evidence collected prior to the establishment of the Special Chambers. Pursuant to the provisions in Article 19 of the Law, this type of evidence is to be admitted in the ‘presence of the accused person with a view to adversarial argument’.44

procedure for submission and acceptance of any application to participate in the proceedings and declaration of damage’. 41 Law no. 05/L-053, Art. 35. By 19 November 2022, Alex Whiting became Acting Specialist Prosecutor of the Specialist Prosecutor’s Office succeeding Jack Smith who served as SP between 07.05.2018 and 31.03.2022. The first Specialist Prosecutor of the SPO was David Schwendiman (01.09.2016-31.03.2018). 42 Law no. 05/L-053, Art. 35(9): ‘[t]he Specialist Prosecutor’s Office shall be composed of the Specialist Prosecutor, other Prosecutors, police and such other qualified staff as may be required. Prosecutors and other office holders shall be appointed by the Appointing Authority upon the recommendation of the Specialist Prosecutor’. 43 Law no. 05/L-053, Art. 35(5): ‘[t]he Specialist Prosecutor’s Office shall act independently from the Specialist Chambers and the other prosecution authorities in Kosovo. The Specialist Prosecutor and all members of the Specialist Prosecutor’s Office shall not seek or receive instructions from any Government or from any other source. The Specialist Prosecutor shall not engage in any activity which is likely to interfere with his or her prosecutorial functions or to affect confidence in his/her independence. He or she shall not engage in any other occupation of a professional nature’. 44 Law no. 05/L-053, Art. 37(2).

26

E. Hitaj

A crucial attribution to the Special Prosecutor’s Office is the power to independently conduct investigations of perpetrators of criminal offences under the framework of the jurisdiction provided by the Law. Large scale competencies are assigned in this regard, balanced by a series of inherent procedural rights granted to the accused or suspected person, such as the right to be informed of the allegations, the right to remain silent, the right to be assisted by a Specialist Counsel, and the right to the free assistance of an interpreter in a language he/she speaks and understands.45 The Prosecutor’s Office, the Chambers, and the Registry’s activity is covered by functional immunity, privileges, exemptions, and facilities in the exercise of their proper functions. The complete inviolability of the premises, documents, and properties is guaranteed, while any form of interference from external entities is prohibited.

4 Transitional Justice or Rule of Courts as a Tool for Implementing the Rule of Law Principle: Final Considerations The principle of the rule of law is one of the most important cornerstones of modern democracies, and a common value of the European integration process. Article 2 of the Lisbon Treaty elevates the rule of law principle among the founding values of the Union.46 It is also an element of conditionality of the policies of the European Union both in the internal and external dimension of the rule of law principle.47 The rule of law concerns judiciary, human rights, social inclusion, anti-corruption legal framework, fair competition rules,48 media pluralism, institutional arrangements within the EU and among member States. According to the consolidated jurisprudence of the European Court of Justice, the principle of the rule of law is strictly linked to the principle of legality, the principle of certainty of law, the checks and balances principle, and the independence and autonomy of the judiciary.49 To

45

Law no. 05/L-053, Art. 38(3). ‘The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail’. 47 See Goudappel and Hirsch Ballin (2016). 48 See Bove and Elia (2017). 49 In the recent Case C-430/21 (European Court of Justice, Judgment (22 February 2022), C-430/21, Proceedings brought by RS) , the Court reaffirmed the impossibility of domestic courts, of any instance, to disregard the EU rule of law principle ‘in particular, Article 4(2) and (3) and the second subparagraph of Article 19(1) TEU, which are binding upon it, to disapply a rule of EU law, on the ground that that rule undermines the national identity of the Member State concerned as defined by the national constitutional court’, para. 70. Same position was held by this Court in previous cases. See European Court of Justice, Judgment (24 June 2019), C-619/18, Commission v Poland 46

Stabilization of the Western Balkans and the Impact of the Rule of Law. . .

27

this end, through its principal bodies (Commission, Council of Ministers, Parliament), the EU has inaugurated a new mechanism of promotion and evaluation of the rule of law in member States,50 part of which is included in the Justice Scoreboard,51 currently in its ninth edition. The Justice Scoreboard each year measures the efficiency, quality, and independence of national justice systems among EU countries, with the adjunct for this year of the digitalization of justice.52 The EU, mainly through the Commission, every year undertakes all necessary means to strengthen and widen the perimeter of issues affected by the rule of law principle. Since 2014, the EU has initiated meetings on General Affairs, also partly concerning rule of law issues, with constant dialogue among member States. On 7 October of 2020, the European Parliament adopted a resolution on the EU Mechanism on Democracy, the Rule of Law and Fundamental Rights, an interinstitutional agreement guaranteeing the coordination of EU institutions regarding the content of Article 2 of the Lisbon Treaty. On the other hand, due to the central role of Article 49 of the Lisbon Treaty, the external dimension of the rule of law principle inevitably concerns candidate Countries aspiring to join the EU. Kosovo, as a potential candidate for accession, is undertaking all necessary measures to meet the ‘Copenhagen criteria’, with particular concern for the rule of law principle.53 This means that justice should prevail over any other contrasting interests. Since a considerable number of crimes committed in Kosovo by Kosovar Albanian nationals fall outside the perimeter of ICTY jurisdiction, the need for a special mechanism of transitional justice was no longer extendible. International pressure from the EU and US led to the amendment of the Constitution and the approval of a relevant law on the creation of the Specialist Chambers and the Specialist Prosecutor’s Office in mid-2015. Three months later, in October of the same year, Kosovo was ‘rewarded’ with the signature of the Stabilization and Association Agreement.

(Independence of the Supreme Court), para. 47; European Court of Justice, Judgment (21 December 2021), C-357/19, C-379/19, C-547/19, C-811/19 and C-840/19, Euro Box Promotion and Others, para. 217). 50 The Rule of Law Mechanism acts as a preventive tool, deepening dialogue and joint awareness of rule of law issues. At the center of the new Mechanism is the annual Rule of Law Report, which provides a synthesis of significant developments—both positive and negative—in all Member States and the Union as a whole. For the 2020 Rule of law report, see www.ec.europa.eu/info/ publications/2020-rule-law-report-communication-and-country-chapters_en. 51 The Scoreboard is a comparative tool that evolves in dialogue with Member States and the European Parliament. Its objective is to identify the essential parameters of an effective justice system and provide relevant annual data. 52 For 2022, see the EU Justice Scoreboard (Communication from the Commission to the European Parliament, the Council, the European Central Bank, the European Economic and Social Committee and the Committee of the Regions (19 May 2022) 2022 EU Justice Scoreboard, COM(2022)234), available at https://ec.europa.eu/info/sites/default/files/eu_justice_scoreboard_2022.pdf. 53 TEU, Art. 49(1): ‘[a]ny European State which respects the values referred to in Article 2 and is committed to promoting them may apply to become a member of the Union’.

28

E. Hitaj

Kosovo gained independence in 2008, and up to 2015, was unable to face the problem of the scrutiny of crimes perpetrated in its territory after the withdrawal of Serbian troops from its territory in mid-June 1999. To avoid another special criminal tribunal, such as the ICTY for the former Yugoslavia, the EU and US administrations suggested the creation of a sui generis tribunal (Specialist Chambers and Specialist Prosecutor’s Office) with exclusive competence of serious crimes committed by former members of KLA against the civilians of Serbian, Roma, and even Albanian nationality. The initial opposition and reluctance of Albanian authorities toward this project was circumvented after intensive diplomatic pressure. The full reconciliation and demand for real justice that the democratic institutions of Kosovo could not reach by means of political instruments in terms of the rule of law and the prosecution of perpetrators of these serious crimes was aimed to be resolved through the establishment of this sui generis transitional tribunal.54 Time will show whether this rule of court principle will achieve the real expectations of both the Kosovo population and the international community, with the shared intent to democratize Kosovo society and meet the criteria for EU accession.

References Borda AZ (2011) Histories written by international criminal courts and tribunals. Developing a Responsible History Framework, The Hague Bove V, Elia L (2017) The Judicial System and Economic Development across EU Member States. JRC Technical Report, Publications Office of the EU, Luxembourg Ciorciari JD, Heindel A (2018) Hybrid justice: the extraordinary chambers in the courts of Cambodia. University of Michigan Press, Michigan Giorgetti C (2012) The rules, practice, and Jurisprudence of international courts and tribunals. Brill, London-Boston Goudappel ANJ, Hirsch Ballin EMH (eds) (2016) Democracy and rule of law in European Union. Essays in Honour of Jaap W. de Awaan. Springer, The Hague Hayashi N, Bailliet CM (eds) (2017) The legitimacy of international criminal tribunals. Cambridge University Press, Cambridge Muharremi R (2016) The Kosovo specialist chambers and specialist prosecutor’s office. HJIL 76: 967–992 Schabas WA, Bernaz N (2011) Routledge handbook of international criminal law. Routledge, New York Schabas WA, Shannonbrooke M (eds) (2017) Research handbook on international courts and tribunals. Edward Elgar, Massachusetts Squatrito T, Young OR, Follesdal A, Ulfstein G (eds) (2018) The performance of international courts and tribunals. Cambridge University Press, Cambridge Williams S (2016) The specialist chambers of Kosovo: the limits of internationalization. J Int Crim Just 14:29

54 Since its establishment, four cases are pending in pre-trial phase at the Specialist Chambers: Sali Musafa Case (KSC-BC-2020-05); Hashim Thaçi et al. case (KSC-BC-2020-06); Pjetër Shala case (KSC-BC-2020-04), and Hysni Gucati & Nasim Haradinaj case (KSC-BC-2020-07). For more details, visit the official website at www.scp-ks.org/en/cases.

Stabilization of the Western Balkans and the Impact of the Rule of Law. . .

29

Erjon Hitaj is a Lecturer of Public International Law and European Union Law at the University ‘Ismail Qemali’ of Vlore, Albania from 2013. He graduated at ‘La Sapienza’ University of Rome in ‘Law’ and in ‘Political Sciences and International Relations’. He holds a PhD in ‘International Order and Human Rights’ from the same Roman university. His main fields of expertise include International Law, EU Law, Human Rights Law and Diplomatic and Consular Law. He is also co-founder and responsible of the Legal Clinic Centre of the ‘Ismail Qemali’ University of Vlore, Albania where, since 2016 he serves as Head of the Department of Law. He has been a Partner of Jean Monnet Module “EU-Western Balkans, Cooperation on Justice and Home Affairs” (EUWEB), 2019–2022 (University of Salerno, Italy). He is an Associated Editor of EUWEB Legal Essays. Global & International Perspectives, Editoriale Scientifica (Italy) and a member of the Editorial Committee of the Collana di Diritto Internazionale e di Diritto dell’Unione Europea, Aracne Editrice (Rome-Italy). He has been a Visiting Lecturer at the University of Fiume (Croatia) and Salerno (Italy). Author of several articles in the field of International Law and a monograph on international law and human rights in the Albanian legal order (in Italian language published by Aracne Editrice).

EU Civilian CSDP Missions and the Consolidation of the Rule of Law in the Western Balkans Niuton Mulleti

Abstract This chapter aims at presenting the functioning of the civilian crisis management missions deployed to date by the European Union (EU) in the Western Balkans in the context of its Common Security and Defence Policy (CSDP) as part of the Common Foreign and Security Policy (CFSP), the latter representing one of its fast-developing policy areas. The particular focus of this chapter will be on elucidating the impact of the civilian CSDP missions on the consolidation of the rule of law in the Western Balkans. Despite the difficulties encountered by the EU in emerging as a fully-fledged global foreign and security actor, the problem-solving culture developed by Brussels-based CFSP and CSDP bodies has facilitated the formulation and implementation of an active EU foreign policy towards the Western Balkans. The civilian CSDP missions have been deployed in the context of EU’s structural foreign policy by also complying with its self-image as a ‘civilian’ and ‘normative’ power. The main argument of this chapter will be that while the EU civilian CSDP missions have greatly contributed to the preservation of security and stability in the Western Balkans, their role in the Europeanisation of the national political systems has been rather limited. The experience of civilian CSDP missions in the Western Balkans demonstrates that effective rule of law cannot be established by an international mission, but only by local institutions under strict EU conditionality in the framework of their accession process.

1 Introduction Civilian crisis management missions deployed by the European Union (EU) in the context of its Common Security and Defence Policy (CSDP) have represented one of its fast-developing policy areas as part of its Common Foreign and Security Policy

N. Mulleti (✉) Acting Head of the Department of Law and Senior Lecturer in International Relations, EPOKA University, Vlorë/Tirana, Albania e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 T. Russo et al. (eds.), Solidarity and Rule of Law, European Union and its Neighbours in a Globalized World 9, https://doi.org/10.1007/978-3-031-29227-9_3

31

32

N. Mulleti

(CFSP). Despite the difficulties encountered by the EU in emerging as a fullyfledged global foreign and security actor, with regard to the Western Balkans, it has managed to carry out an active and consistent structural foreign policy based on the de-escalation and de-securitisation of tensions through substantial support and pressure as well as the anchoring of these countries into a firm EU accession path. Civilian CSDP missions have been deployed in the Western Balkans in the context of post-conflict stabilisation by also complying with its self-image as a ‘civilian’ and ‘normative’ power. The Western Balkans have played a crucial role in the development of this policy area of the EU with the first ever civilian CSDP mission i.e. the European Union Police Mission in Bosnia and Herzegovina (EUPM) and the largest one to date, namely the European Union Rule of Law Mission in Kosovo (EULEX Kosovo) having been deployed in the region. Furthermore, both EUPM and EULEX Kosovo were deployed as a follow-on to the previous United Nations (UN) missions in these countries, respectively the United Nations International Police Task Force (IPTF) in Bosnia and Herzegovina and the United Nations Mission in Kosovo (UNMIK), and in both countries, the EU Special Representatives (EUSRs) provided political guidance to the respective missions. However, whereas in Bosnia and Herzegovina the EU also assumed responsibility for peacekeeping from NATO through its EUFOR Althea mission in December 2004, thus effectively supplementing its civilian crisis management presence with a CSDP military deployment, in Kosovo, NATO continued to lead peacekeeping through the Kosovo Force (KFOR). The principle of the rule of law has been central to the mandate and operations of all four civilian CSDP missions deployed in the Western Balkans with three of them (EUPM, Eupol ‘Proxima’ and EUPAT) having been actively engaged in the modernisation of local police forces in Bosnia and North Macedonia (formerly FYROM) through monitoring, mentoring and advising (MMA) activities whereas EULEX Kosovo has been engaged in MMA activities in a wider array of areas (judiciary, police and customs) while also retaining certain executive functions. On the other hand, solidarity has only been recently emerged as a legal principle in EU law particularly in the aftermath of the Treaty of Lisbon. Hence, among all civilian CSDP missions in the region, the principle of solidarity has been included in the legal and political documents governing the functioning of EULEX Kosovo as the sole ongoing civilian CSDP mission in the Western Balkans. This chapter will argue that while civilian CSDP missions have greatly contributed to the preservation of security and stability in the Western Balkans, their role in the Europeanisation of national political systems has been rather limited. This has mainly stemmed from the lack of a strong and unambiguous political will and commitment by the local political classes to effectively fight against organised crime and corruption as well as to carry out the necessary reforms to ensure the fulfillment of the Copenhagen political criterion with a view to the eventual EU accession of Western Balkan countries. After the elaboration of the increasing supranationalisation of the CSDP despite the absence of supranational institutions (Sect. 2), this chapter will delve into the

EU Civilian CSDP Missions and the Consolidation of the Rule of Law in. . .

33

stages that lead to the establishment and operationalisation of the civilian CSDP missions in the Western Balkans as well as their role in the consolidation of the rule of law in the region (Sect. 3).

2 Conceptualising the CSDP: From Intergovernmentalism Towards Brusselisation Until recently, numerous observers and scholars maintained that the EU represented ‘an economic giant, a political dwarf and a military worm’ emphasising the fact that the EU could not translate its enormous economic power into commensurate political presence and influence in the international political affairs, not to mention the projection of military power by the EU both in its backyard and beyond. However, it is very interesting to note that security and defence policy has come to represent the EU policy area with the most dynamic development during the last decade which has been characterised by a general stagnation concerning both the further widening and deepening of European integration. Research on the CSDP is considered to be undertheorised.1 The creation and development of the CSDP came as a challenge to realist explanations that had predicted the limits of integration, particularly in the field of security and defence policy. Currently constructivism is accepted as the most conspicuous approach in the study of EU foreign and security policy with numerous scholars employing sociological and historical institutionalism, the Europeanisation framework and other constructivist perspectives based on the role of social identities in the analysis of the development and policy processes of the CFSP.2 In this context, sociological and historical institutionalism point to the relevance of EU-level structures responsible for the design and conduct of foreign and security policy since they shape the identities, interests and behaviour of actors. As a consequence, constructivist institutionalist research is particularly concerned with elucidating the level of the institutionalisation of European foreign and security policy and with analysing the impact of such institutionalisation. Constructivist scholars maintain that while the European Political Cooperation (EPC) was launched in 1970 for principally instrumental reasons, one of its unintended consequences was the creation of a social environment that encouraged cognitive and behavioural role changes. The CFSP as a successor of the EPC consolidated this social environment and strengthened its effects. Brussels-based actors participating in the EPC and afterwards in the CFSP came to share common expectations about appropriate EU foreign and security policy and a collective rationality emerged emphasising general principles, legitimate procedures defined by shared rules and norms as well as joint problem-solving instead of conflictual bargaining. This collective rationality 1 2

Kurowska (2012), p. 1. Merlingen (2012), p. 10.

34

N. Mulleti

constrained and, in some cases, even replaced instrumental rationality in these Brussels-based bodies. According to this view, the CSDP is an outcome of the sociological and organisational processes associated with institutionalisation which also shape its functioning. Constructivist institutionalist scholars emphasise the ‘Brusselisation’ of CSDP policy making referring to the growing role of Brusselsbased national representatives and EU civil servants in the processes of this policy. They have also provided evidence of a shared institutional identity among the members of CSDP structures, socialisation and social learning as well as the emergence of a European strategic culture in CSDP bodies.3 ‘Europeanisation’ is another notion analysed by constructivists in the area of European foreign and security policy. It refers both to the downloading aspect of Europeanisation—i.e., the pressures faced by EU states to adapt their national rules and practices concerning foreign and security policy to those found at the EU level so as to mitigate the cases of non-compliance—but also to its uploading aspect which depicts the attempts of member states to shape EU foreign and security in line with their national preferences. Other constructivist approaches also point to the use of the CSDP as an instrument to raise the self-confidence as well as the prestige of the EU both at home and abroad by showing that a high degree of cooperation and institutionalisation can also be achieved in a ‘high politics’ area such as defence and security.4 At the same time, concerning the self-image of the EU as an international security power, scholars have argued that it has emerged as a ‘normative’ or ‘civilian’ power that carries out foreign and security policies that are shaped more by values and principles rather than material interests.5 By implication, it can be stated that the CSDP serves as an instrument to project power in this regard. Constructivist approaches maintain that classical intergovernmentalism (based on realist approaches), liberal intergovernmentalism and neofunctionalism are ill-placed to explain the CSDP since they had predicted that European cooperation and integration in the areas of security and defence would not take place due to the sensitivity of these domains. Constructivist scholars have instead put emphasis on the domestic ideational factors as well as on the socialisation and identity—shaping effects of European integration on national agents. The particular value of constructivist approaches rests in the explanation of interaction between ideas, discourses, preferences and interests at different levels of governance. According to constructivists, the structure of the CSDP and the agents that stand behind its development are mutually constitutive.6 Nevertheless, it is argued that constructivism can offer a better explanation of the CSDP if it focuses on the interaction between ideational and material factors given that mainstream constructivists accept that agents act in an environment that is social as well as material, thus stating that both ideational and

3

Ibid., pp. 10–11. Ibid., p. 12. 5 Wiener and Diez (2009), p. 242. 6 Meyer and Strickmann (2011), p. 63. 4

EU Civilian CSDP Missions and the Consolidation of the Rule of Law in. . .

35

material factors have an impact on the constitution of identities and interests of actors.7 Governance approaches, being situated between liberalism and constructivism, have also provided a valuable contribution to the study of the EU. The term ‘governance’ refers to a form of political order that stands between hierarchy represented by the traditional state structure and anarchy, represented by markets. Based on the fragmentation of state authority, ‘governance’ defines public and private actors working together in policy networks that are built upon shared interests and/or norms and contribute to the formulation of public policy. In this context, security governance approaches claim that EU states—being based on a post-Westphalian structure—are ready to trade sovereignty for problem-solving capacity through institutionalised security cooperation with other state and non-state actors leading to the definition of the EU as the best example of postWestphalian security governance. According to security governance scholars, the main reason for such a trade-off is that EU states can no longer be considered to be authoritative providers of security given that the main threats facing EU states are not represented by military threats to territorial integrity, but are instead transnational in nature, stemming principally from non-state actors that act independently and often benefit from state fragility or failure.8 In sum, while state-centric approaches hold that the decision-making process is hierarchical (shaped at the highest level by heads of government), one-level (national) and exclusive (occupied only by state actors), governance approaches contend that European security is heterarchical (shaped by various political and administrative actors), multi-level (composed of supranational, national and even sub-national actors) and inclusive (involving state and private actors). 9 Governance approaches view the CSDP as an expression of EU external security governance that deals mainly with the transfer of EU rules, norms and policies to third countries. In this context, civilian CSDP operations represent an example of the externalisation of domestic law enforcement functions, whereas military CSDP operations can be defined as a ‘politicisation’ of soldiering where troops may be engaged in civilian functions in the context of peace-building or security sector reform. Through these missions, the EU contributes to post-conflict stabilisation and reconstruction with the aim of not only improving the situation in these countries, but also in creating a more secure external environment for the EU itself.10 Governance scholars concur with constructivists that national executives have an important role in the CSDP, but do not run it. While constructivists focus on the analysis of socialisation and social learning processes among CSDP actors, governance approaches concentrate on the networked character of the policy area by

7

Ibid., pp. 66–67. Merlingen (2012), pp. 20–21. 9 Mérand et al. (2011), p. 124. 10 Merlingen (2012), pp. 21–22. 8

36

N. Mulleti

asserting that Brussels-based transgovernmental networks have an impact on the agenda of the CSDP and on its deliberations.11 In this framework, Stéphanie Hofmann contends that: ‘. . . cooperation within CSDP is characterised not only by the interaction between capital-based national executives on the highest political level but also by the interaction between bureaucrats in the national capitals and in Brussels who also contribute to CSDP policy making. These bureaucrats form a tied-knit net of structural relationships and shape policy in the realm of CSDP’.12 Building on the concept of transgovernmentalism and making use of social (constructivist) institutionalist approaches, scholars have come to define the everincreasing role of Brussels-based bodies as ‘Brusselisation’ to refer to a notion that transcends the mere transfer of authority and expertise in the area of security and defence to the decision-making institutions in Brussels and also includes the concept of ‘socialisation’ among the actors involved, thus giving rise to a new decision- and policy-making method based largely on acting in accordance with the ‘logic of appropriateness’.13 Socialisation is referred to as a process that induces actors into the norms and rules of a given community leading to ‘sustained compliance based on the internalization of these new norms’.14 This socialisation takes place in an institutional environment which influences the identities, interests and behaviour of actors by providing opportunities conducive to the regular interaction between actors as well as the taking place of learning and persuasion processes ultimately leading to the internalisation of rules and norms by these actors.15 In this context, Breuer argues that: ‘Brusselisation of CSDP is used as a concept meaning that the overall policy development is in many regards and ultimately still dominated by the member states, but that the formulation and implementation of policies are more and more governed by Brussels-based actors and bodies, as well as by logics formed in Brussels. This means that CSDP is becoming even more ‘Brusselised’ and that we witness a European defence policy situated ‘between intergovernmentalism and growing tendencies of Brusselisation’.16 Empirical evidence on the growing ‘Brusselisation’ of the CSDP is provided by elucidating the important role played particularly by the Council General Secretariat and the Political and Security Committee (PSC), as well as the dense contacts and networks between the ministries of foreign affairs and defence of the national capitals in the formulation and implementation of European foreign and security policy. These developments are enabled by a process that can be defined as a transfer of competences from the national level to the European one, however without leading to a transfer of sovereignty.17

11

Ibid., p. 22. Hofmann (2012), p. 43. 13 Breuer (2012), p. 112. 14 Checkel (2005), p. 804. 15 Breuer (2012), pp. 116–117. 16 Ibid., p. 120. 17 Ibid., pp. 121–125. 12

EU Civilian CSDP Missions and the Consolidation of the Rule of Law in. . .

37

At the same time, contrary to the argument of liberal intergovernmentalism that the state remains the main contact point for private actors that want to influence EU policy, governance approaches also focus on transnational networks, through which private actors such as defence firms, security think tanks and non-governmental organisations have access and attempt to influence CSDP policymaking through channels in Brussels.18 Nevertheless, it is argued that the defence industry because of its reliance over the state sector in Europe does not act as an important actor in CSDP matters.19 Scholars have also noticed signs of an increased supranationalisation of the CSDP through the increased role of the Council General Secretariat and at times of the European Commission in the shaping of decision-making in CSDP by making use of their functions of planning and organising meetings through which they can prioritise certain subjects. This has been particularly the case for the ‘Solana milieu’ consisting of the former High Representative for the CFSP Javier Solana and the units and working groups working under him in the Council General Secretariat. This group emerged as a policy entrepreneur through the provision of relevant inputs into the policy area and the shaping of outcomes not only on institutional decisions but also about operational outcomes.20 On the other hand, Bickerton holds that the old intergovernmentalismneofunctionalism dichotomy fails to capture the true nature of the CSDP. EU foreign policy including the CSDP is neither a venue of the hard bargaining and the individualistic defence of national interests by member states nor a policy area where supranational institutions have the upper hand. Instead CSDP represents a case of the intensification of cooperation between actors but in the absence of new supranational structures; an instance of ‘supranationality without supranational institutions’ as defined by Keohane and Hoffmann.21 According to this view, supranationalism is as much about the subjective inclination of national political elites towards consensus and compromise as it is on the establishment of new supranational institutions. CSDP represents a clear example of such a subjective inclination with a clear impact over policy-making, particularly in CSDP bodies such as the PSC and the Committee of Permanent Representatives (COREPER) where national representatives have developed an institutional culture towards problem-solving.22 Bickerton argues that such a development of the CSDP can be best explained by the increased ‘bureaucratisation’ of the nation-state at the expense of democratic institutions which is reflected in enhanced transgovernmental activity at the European level.23 Howorth also points to the obsolescence of the dichotomy between intergovernmentalism and supranationalism since the CSDP has involved a mix of

18

Merlingen (2012), p. 22. Hofmann (2012), p. 52. 20 Ibid., pp. 51–52. 21 Bickerton (2011), p. 173. 22 Ibid., p. 174, pp. 178–182. 23 Ibid., pp. 182–186. 19

38

N. Mulleti

intergovernmental and supranational procedures since its establishment. Even though formally positioned in the strictly intergovernmental Pillar Two of the EU, almost all CSDP bodies have gone through a process of socialisation among national representatives albeit at different levels, thus leading to the emergence of an institutional culture directed towards consensus-seeking, which goes far beyond what might be normally expected from diplomatic practice and which comes close to policy-making in numerous occasions. In the greatest majority of cases, decisionmaking at CSDP supersedes the lowest common denominator that is envisaged by intergovernmentalists. Howorth has defined this emerging policy-making pattern of the CSDP as ‘supranational intergovernmentalism’.24 This chapter will concur with the abovementioned definition provided by Howorth while analysing the decision-making process concerning the preparatory stage, establishment, deployment and operations of the civilian CSDP missions in the Western Balkans by also benefitting from the concepts and propositions provided by sociological institutionalist approaches. In particular, given the internal divisions among EU member states on the recognition of Kosovo’s independence, this mode of policy-making at CSDP bodies oriented towards problem-solving as well as reaching consensus and compromise, greatly facilitated the deployment and functioning of the EULEX mission in Kosovo despite the prevailing obstacles on the ground. In spite of the lack of agreement among all its member states on the recognition of Kosovo’s independence, the EU managed to agree on the deployment of its largestever civilian crisis management operation in Kosovo. The Brussels-based CSDP and other bodies provided a valuable contribution to this end through their continuous engagement in determining the technical aspects concerning the planning, deployment and implementation of EULEX. The overcoming of the political and legal positions of the non-recognising EU member states was rendered possible through the problem-solving institutional culture that dominated Brussels-based CSDP and other bodies, and to a great extent represented an example of the implementation on the ground of the solidarity principle as enshrined in the Treaty of Lisbon.

3 Civilian CSDP Missions in the Western Balkans and the Rule of Law Through Article 2 of the Treaty on the European Union (TEU), the Treaty of Lisbon explicitly enshrined solidarity as one of the founding values of the Union alongside the rule of law in an effort to emphasise the importance that the EU attached to international norms and values, thus integrating the Copenhagen political criterion to the Treaty. These values are meant to shape and guide the European Union’s action, and their promotion—alongside peace and the well-being of its peoples—represents 24

Howorth (2011), pp. 5–24.

EU Civilian CSDP Missions and the Consolidation of the Rule of Law in. . .

39

one of the aims of the Union (Article 3(1) TEU). Such a promotion is not limited only to its internal functioning, but it also applies to the external action of the Union as stipulated by Article 3(5) TEU. Besides having been recognised as principles that have inspired the creation, development and enlargement of the Union, the rule of law and solidarity have also been explicitly defined among the principles set to guide the EU’s action in all its relations and partnerships with third parties (Article 21(1) TEU). However, contrary to the principle of the rule of law, the principle of solidarity has only recently started to increasingly become an important part of the EU’s external action in legal terms particularly after the Treaty of Lisbon. It can indeed be argued that the principle of solidarity has been implemented on the ground concerning the successful deployment and functioning of EULEX Kosovo whereby the lack of consensus among EU member states on the recognition of Kosovo’s independence has not brought about important obstacles for a successful conduct of this mission. The European Union Police Mission in Bosnia and Herzegovina (EUPM)—as the first-ever civilian CSDP mission—was established as a follow-on to the United Nations International Police Task Force (IPTF) in Bosnia and Herzegovina (BiH) as from 1 January 2003.25 It represents the most difficult and challenging mission among the police missions deployed by the EU to date.26 The EUPM was explicitly conceived as part of the broader Union Rule of Law follow-up in BiH and was to have a unified chain of command, as a crisis management operation.27 The deployment of EUPM was followed by the operationalisation of the EUFOR Althea mission in 2004 whereby the EU took over the peacekeeping responsibilities from the NATO-lead Stabilisation Force (SFOR) mission in what became the largest EU military operation. The deployment of EUPM and EUFOR Althea alongside the appointment of the EUSR as the High Representative in BiH clearly indicated the determination of the EU to further entrench its presence as the main foreign policy actor in the region in line with its foreign policy objectives. The EUPM was established under the aegis of the Dayton Agreement with the aim of contributing to the overall peace implementation in BiH following the end of war in 1995 as well as to the achievements of the EU’s overall policy in the region, notably the Stabilisation and Association Process (SAP), as part of its enlargement policy.28 The mission of the EUPM consisted of establishing sustainable policing arrangements under BiH ownership in accordance with best European and international practice, and thereby raising Bosnian police standards. In more concrete terms, the goals of the EUPM were determined as follows:

25

Council Joint Action 2002/210/CFSP on the European Union Police Mission, O.J. L 70/1 (2002), Art. 1.1. 26 Howorth (2007), p. 224. 27 Council Joint Action 2002/210/CFSP on the European Union Police Mission, O.J. L 70/1 (2002), Art. 7. 28 Ibid., Indent 3 of the preamble.

40

N. Mulleti

– to preserve, through continuity with the achievements of the IPTF mission, the existing levels of institutional and personal proficiency; – to enhance, through monitoring, mentoring and inspecting, police managerial and operational capacities; to this end, to focus on delegation of power and qualityoriented management principles as well as improving operational planning capacity based on analysis; – to strengthen professionalism at high level within the ministries as well as at senior police officers’ levels through advisory and inspection functions; – and to monitor the exercise of appropriate political control over the police.29 While the mission enacted a wide range of reforms during its first three years operation mainly funded by the European Commission through the community programmes, after 2005, the mandate of the mission focused upon two main objectives which were highly sensitive in nature. First, the EUPM supported the centralisation of the highly fragmented system of the Bosnian police which principally derived from the intricate institutional framework brought by the Dayton Agreement. Success was limited because of the political deadlock created by the political parties representing the three ethnic groups of BiH. Second, the EUPM dealt with police-prosecutor relations. The mission was deemed particularly successful in building better police-prosecutor cooperation and in supervising the exercise of political authority over the police. After 2009, the mandate of the EUPM focused on the fight against corruption and organised crime.30 The EUPM—which was the first attempt by the EU into the operationalisation of the security sector reform representing a novel post-conflict state-building concept central to the European Security Strategy—also displayed several shortcomings. It was deemed that Brussels lacked the political will to persuade the political authorities in BiH and in particular, those in Republika Srpska, in cooperating with the EUPM. Slowness in delivery, inadequate equipment, the heterogeneity of the staff and the turf wars between the EUPM and the EUSR were also deemed to represent weak features of the mission.31 The lack of the mandate of the EUPM concerning the judiciary also hindered the efforts of the mission in the police reform with a particular focus on the improvement of police-prosecutor cooperation.32 This would indeed serve as an important lesson learned from the EUPM while the EU would determine the mandate of the EULEX mission at the end of the decade. With the end of the mandate of the EUPM, the EU continued its support for the reforms related to the rule of law through its community programmes exclusively in the framework of the SAP. The European Union Police Mission in the Former Yugoslav Republic of Macedonia (EUPOL ‘Proxima’) was established by the EU in the aftermath of the

29

Ibid., Annex. Merlingen (2012), pp. 129–130. 31 Howorth (2007), pp. 225–227. 32 Merlingen (2012), p. 130. 30

EU Civilian CSDP Missions and the Consolidation of the Rule of Law in. . .

41

signing of the Ohrid Framework Agreement between the biggest four political parties in the country representing the Slav Macedonian majority and the Albanian community which put an end to the insurgency of the National Liberation Army (UÇK) against the Macedonian authorities. The EU and NATO played a crucial role in ensuring the signing of the Ohrid Framework Agreement which granted increased rights to the Albanian community and ensured the disarmament of the UÇK thus successfully preventing the escalation of the conflict into a full-scale civil war. Similarly to the EUPM, besides the overall peace implementation process, EUPOL ‘Proxima’ aimed also at contributing to the advancement of the SAP in the region based upon a broad approach with activities to address the whole range of rule of law aspects, including institution-building programmes and police activities which were meant to be mutually supportive and reinforcing.33 The deployment of the EU’s second CSDP police mission came as a result of the fact that police reforms constituted a central section of the Ohrid Framework Agreement given that the Albanian community had a deeply entrenched distrust towards the Slav-dominated police with the latter having a record of selective misconduct.34 EUPOL ‘Proxima’ took over from EUFOR Concordia in December 2003 which represented the firstever military operation of the EU albeit of a small scale. The goals of EUPOL ‘Proxima’ were defined as follows: – the consolidation of law and order, including the fight against organised crime, focusing on the sensitive areas; – the practical implementation of the comprehensive reform of the Minister of Interior, including the police; – the operational transition towards, and the creation of a border police, as a part of the wider EU effort to promote integrated border management; – the building of confidence of the local police within the population; – the enhanced cooperation with neighbouring States in the field of policing.35 Also in the case of FYROM, in a clear indication of the EU’s increased role in the region, the Union appointed an EUSR to contribute to the consolidation of the peaceful political process and the full implementation of the Ohrid Framework Agreement.36 Since late 2005, the EUSR also became the Head of the European Commission Delegation in the FYROM which represented a unique institutional innovation for the EU at the time.37 This double-hatting of the EUSR with the Head

33 Council Joint Action 2003/681/CFSP on the European Union Police Mission in the Former Yugoslav Republic of Macedonia (EUPOL ‘Proxima’), O.J. L 249/66 (2003), Indent 1 of the Preamble. 34 Merlingen (2012), p. 134. 35 Council Joint Action 2003/681/CFSP on the European Union Police Mission in the Former Yugoslav Republic of Macedonia (EUPOL ‘Proxima’), O.J. L 249/66 (2003), Art. 3. 36 Ibid., Indent 2 of the Preamble. 37 Keukeleire and MacNaughtan (2008), p. 264.

42

N. Mulleti

of the EU presence in the respective countries would also be replicated later on in BiH and Kosovo. EUPOL ‘Proxima’ was followed by the EU Police Advisory Team (EUPAT) which aimed at serving as a bridge between the end of EUPOL ‘Proxima’ and a planned project funded by CARDS.38 The mandate of EUPAT envisaged the engagement of EU police experts in monitoring and mentoring the Macedonian police on priority issues in the field of border police, public peace and order, accountability, as well as the fight against corruption and organised crime. To this end, EUPAT was expected to particularly focus on the overall implementation of police reform in the field, police-judiciary cooperation as well as professional standards and internal control.39 The main success of EUPOL ‘Proxima’ lied in the improvement of the accountability of police officers to citizens and the upgrading of the interface between law enforcement and the judiciary.40 Nevertheless, both missions suffered from important shortcomings with regard to the implementation of their mandate. The main difficulty stemmed from the fact that other international actors with competing mandates were also present in the country and the Macedonian government itself asked for the termination of the mission fearing that its presence would inhibit the acceleration of the EU accession process of the country.41 EUPOL ‘Proxima’ and EUPAT also suffered from inter-agency turf battles between the European Commission and the Council, as well as little coordination among the EU actors on the ground, namely the head of EUPOL ‘Proxima’, the EUSR and the head of the Commission Delegation in Skopje.42 Both EU police missions in FYROM were meant to embody EU’s ‘dual track’ approach whereby the European Commission supported long-term structural change in the Ministry of Interior and Police Forces, whereas the Council—through the CSDP—dealt with politically sensitive and urgent needs stemming from the Ohrid Framework.43 However, through the deployment of EUPOL ‘Proxima’ and EUPAT, the Council did not only want to show EU’s continuing political commitment towards FYROM, but it also wanted to signal to the European Commission its intention to provide an expansive interpretation of civilian crisis management thus defining a large policy space for the CSDP in an area that the Commission had traditionally considered its turf.44 38

Council Joint Action 2005/826/CFSP on the establishment of an EU Police Advisory Team (EUPAT) in the Former Yugoslav Republic of Macedonia (fYROM), O.J. L 307/61 (2005), Indent 8 of the Preamble. The programme of Community Assistance for Reconstruction, Development and Stabilisation (CARDS) for the Western Balkan countries was replaced by the Instrument for Pre-accession Assistance (IPA) in 2007. 39 Ibid., Art. 2. 40 Merlingen (2012), p. 135. 41 Howorth (2007), p. 228. 42 Ioannides (2006), pp. 77–78. 43 Howorth (2007), p. 228. 44 Merlingen (2012), p. 135.

EU Civilian CSDP Missions and the Consolidation of the Rule of Law in. . .

43

Table 1 Civilian CSDP operations in the Western Balkans Operation EUPM (BiH, 2003-12) Aegis: Dayton/ SAA

Operation ‘Proxima’ (FYROM, 2003-05) Aegis: Ohrid Agreement EUPAT (FYROM, 2005-06) Aegis: Ohrid Agreement EULEX (Kosovo 2008-) Aegis: Ahtisaari Plan/SAA

Objective To develop local police capacity in line with best international and European practice; fight organised crime; establish institutions To consolidate law and order; reform of the Ministry of Interior; promote integrated border management; confidence building Followed the termination of ‘Proxima’ To support the development of an efficient and professional police service To construct an independent and multi-ethnic justice and law enforcement system

Type of mission Police

Modality Initially monitoring, mentoring and inspection, subsequently monitoring, mentoring and advising (MMA)

Size of the mission (at its helm) 495 police officers and 59 additional staff

Police

Monitoring, mentoring and advising

200 police experts

Police

Monitoring, mentoring and advising

495 police officers and 59 additional staff

Rule of law (Police, Justice, Customs)

MMA activities & executive functions

About 2000 international staff (police officers, prosecutors, judges, customs officers), later downsized.

Source: Author; Keukeleire and MacNaughtan (2008), pp. 186–187

Through the EUPM, Europol ‘Proxima’ and EUPAT, the EU possessed a wide array of ‘lessons learned’ items in the area of police reform as well as security sector reform in general that it used to further improve civilian crisis management capabilities and deploy subsequent missions such as the European Union Mission in Kosovo (EULEX Kosovo) which as of 2022 is the only civilian CSDP mission operating in the Western Balkans. By drawing the respective conclusions from the EUPM and Europol ‘Proxima’, the EU decided to deploy a comprehensive rule-oflaw mission in Kosovo by ensuring the proper interface between law enforcement agencies and the judiciary. One of the most relevant outcomes of the Treaty of Lisbon has been the removal of the potential duplicity concerning the principles and objectives in the EU’s external action between the former ‘Community’ method and CFSP thus substantially contributing to a greater consistency between the different areas of the EU’s external action. This was expected to lead to a more effective implementation of the Union’s external actions on the ground, including its policies and actions towards the Western Balkans (Table 1).

44

N. Mulleti

Council Joint Action 2008/124/CFSP of 4 February 2008 represents the legal basis under EU law concerning the establishment of EULEX Kosovo which as of 2022 is the largest-ever civilian CSDP mission deployed by the EU. According to Article 2 of the Joint Action, EULEX ‘shall assist the Kosovo institutions, judicial authorities and law enforcement agencies in their progress towards sustainability and accountability and in further developing and strengthening an independent multiethnic justice system and multi-ethnic police and customs service, ensuring that these institutions are free from political interference and adhering to internationally recognised standards and European best practices’. Furthermore, this Article envisaged that EULEX, in cooperation with the assistance programmes funded by the European Commission, would fulfil its mandate through monitoring, mentoring and advising, while maintaining certain executive responsibilities.45 On 17 February 2008, the unilateral declaration of the independence of Kosovo was adopted at a meeting held by 109 out of the 120 members of the Assembly of Kosovo, including the Prime Minister of Kosovo and by the President of Kosovo (who was not a member of the Assembly) within the ‘supervised independence’ framework proposed by the UN Secretary General’s Special Envoy Martti Ahtisaari regarding the resolution of Kosovo’s status (i.e., the Ahtisaari Plan). The five EU members—Spain, Greece, Romania, Cyprus and Slovakia—which have not yet recognised Kosovo’s independence did not object to the deployment of the EULEX mission in Kosovo based on the abovementioned joint action. Only Cyprus formally abstained from adopting the said joint action, interestingly representing the first and only case of recourse to constructive abstention up to now as provided by the Treaty on the European Union concerning CSDP.46 In fact, Cyprus maintained no staff in EULEX, whereas the other four countries that have not recognised Kosovo’s independence have actively participated in this mission.47 The Joint Action also stipulated the tasks that EULEX would have to carry out horizontally in its three components—justice, police and customs—while exercising its mandate. EULEX was inter alia given the task to ensure the maintenance and promotion of the rule of law, public order and security including, as necessary, through the reversal or annulment of operational decisions taken by the Kosovo authorities. EULEX was also made responsible with ensuring the proper investigation, prosecution, adjudication and enforcement in compliance with applicable law of cases of war crimes, terrorism, organised crime, corruption, inter-ethnic crimes, financial/economic crimes and other serious crimes, including, where appropriate, by international investigators, prosecutors and judges jointly with their Kosovar counterparts or acting independently. Among the tasks assigned to EULEX, there was a clear emphasis on the contribution the mission had to provide to the

45

Council Joint Action 2008/124/CFSP on the European Union Rule of Law Mission in Kosovo, EULEX KOSOVO, O.J. L 42/92 (2008), Article 2. 46 Grevi (2009), p. 26. 47 The European Union Rule of Law Mission in Kosovo (EULEX), available at http://www.eulexkosovo.eu/en/info/StaffInfo.php.

EU Civilian CSDP Missions and the Consolidation of the Rule of Law in. . .

45

strengthening of cooperation and coordination throughout the whole judicial process, with a particular focus on the area of organised crime, as well as on the fight against corruption, fraud and financial crime.48 The granting of executive responsibilities to EULEX represented the first such instance in a CSDP mission. This was a reflection of the view that the Kosovo judiciary was unable to deal with sensitive cases such as war crimes, organised crime, corruption, inter-ethnic crime and other serious crimes, but also of the desire of the EU to maintain a direct intervention mechanism in the Kosovo justice system. The mandate to exercise executive functions raised high expectations in the Kosovar society that particularly EULEX prosecutors and judges would engage in an active fight against corruption and organised crime and would target the ‘big fish’ of Kosovar politics. However, during 2008–2009, EULEX emphasised more its MMA functions. Amidst challenges encountered in its deployment on the ground and the lack of unity among all EU members on Kosovo’s independence, EULEX opted to focus on the technical aspects of its mission and did not want to engage in actions that would inevitably attract political reactions such as in the eventuality of indicting high-level political figures in Kosovo or deploying more forcefully in the Serb-inhabited North. However, starting from 2010, the growing dissatisfaction of the Kosovar public opinion with the performance of EULEX lead to a more active exercise by EULEX of its executive functions, particularly in the area of judiciary. Compared to its MMA mandate, EULEX’s executive functions in the area of justice inevitably came under the spotlight. EULEX was instrumental in investigating, prosecuting and adjudicating serious and sensitive cases, and contributed to fighting the culture of impunity in Kosovo. The executive functions of EULEX raised high expectations in Kosovar society who was expecting swift and concrete results in the fight against corruption and organised crime. At the same time, EULEX staff also played an important role in protecting their Kosovar colleagues from undue political interference. However, EULEX was also passive and fearful of taking on Kosovo’s political class, particularly with regard to high-level corruption. Such a passivity by EULEX can be attributed to the political considerations of Brussels and the senior management of EULEX of not risking the destabilisation of Kosovo and the region by directly targeting prominent figures of the political elite. Hence, in practice, in some of the most critical areas, the rule of law objectives were subdued to the ‘security paradigm’, demonstrating that a technical mission like EULEX could not be insulated from the overarching political and diplomatic aims of the EU. The initial inability of EULEX to establish a robust presence in Northern Kosovo that would ensure the rule of law in the area represents yet another evidence of the importance of strong political support at the top level of the EU for the undertaking of sensitive operations by such missions in semi-permissive environments like Northern Kosovo. It was only due to pressure exercised by the EU through its

48

Ibid., Art. 3.

46

N. Mulleti

conditionality mechanisms that Belgrade took the critical decision to disband its parallel institutions in the North in order to advance in its path towards EU membership. At the same time, the conclusion of the EU-facilitated April 2013 Agreement between Serbia and Kosovo, which represented a clear political act, enabled EULEX to establish a meaningful presence in the North.

4 Conclusion Since the beginning of the 2000s, the Western Balkans emerged as the testing ground where the EU could show all its potential as a genuine and influential foreign policy actor through the formulation and implementation of a coherent and consistent foreign policy towards the region. This development was particularly important given the failure of the EU to prevent and stop the wars in the Balkans during the 1990s. Under the pillar structure preceding the Treaty of Lisbon, the EU could use all the political, legal and economic instruments available under the three pillars to project its power and influence in the Western Balkans. In this context, the EU decided to deploy its first civilian and military missions in the region as part of its rapidly developing CSDP. This chapter argued that while civilian CSDP missions have had a substantial contribution in the preservation of security and stability in the Western Balkans, their role in the Europeanisation of national political systems has been rather limited. The lack of a strong and unambiguous political will by the local political classes has been the main reason for the limited impact of the civilian CSDP missions in bringing about local rule of law institutions able and committed towards an effective fight against organised crime and corruption. As a consequence, it can be contended that effective rule of law can only be established by local institutions under strict EU conditionality with a view to fulfilling the Copenhagen political criterion in the framework of the EU accession process of the Western Balkan countries. On the other hand, the civilian CSDP missions in the Western Balkans have had a great impact on the formulation and implementation of a coherent, consistent and effective EU foreign and security policy towards the region complemented by the provision of an EU accession perspective to the said countries. The ability of the EU to carry out a coherent and active structural foreign policy towards the Western Balkans during the last two decades represents a clear example of the successful implementation of the principle of solidarity in EU’s external action even in politically challenging contexts such as the one that followed Kosovo’s unilateral declaration of independence. This achievement becomes all the more evident when compared to the failure of the EU to emerge as a genuine foreign and security policy actor in the Balkans during the 1990s amidst the wars that broke out in the framework of the disintegration of Yugoslavia.

EU Civilian CSDP Missions and the Consolidation of the Rule of Law in. . .

47

References Bickerton C (2011) Towards a social theory of EU foreign and security policy. J Common Mark Stud 49:171–190 Breuer F (2012) Sociological institutionalism, socialisation and the Brusselisation of CSDP. In: Kurowska X, Breuer F (eds) Explaining the EU’s common security and defence policy: theory in action. Palgrave Macmillan, Basingstoke, pp 111–135 Checkel J (2005) International institutions and socialization in Europe: introduction and framework. Int Organ 59:801–826 Grevi G (2009) ESDP institutions. In: Bulut E et al (eds) European security and defence policy: the first ten years (1999–2009). The European Union Institute for Security Studies, Paris, pp 19–67 Hofmann S (2012) CSDP: approaching transgovernmentalism? In: Kurowska X, Breuer F (eds) Explaining the EU’s common security and defence policy: theory in action. Palgrave Macmillan, Basingstoke, pp 41–62 Howorth J (2007) Security and defence policy in the European Union. Palgrave Macmillan, Basingstoke Howorth J (2011) Decision-making in security and defence policy: towards supranational intergovernmentalism?, KFG Working Paper Series, no. 25 Ioannides I (2006) EU police mission Proxima: testing the ‘European approach’ to building peace. In: Nowak A (ed) Civilian crisis management: the European Way. Chaillot Paper no. 90. The European Union Institute for Security Studies, Paris, pp 77–78 Keukeleire S, MacNaughtan J (2008) The Foreign Policy of the European Union. Palgrave Macmillan, Basingstoke Kurowska X (2012) Introduction: the role of theory in research on common security and defence policy. In: Kurowska X, Breuer F (eds) Explaining the EU’s common security and defence policy: theory in action. Palgrave Macmillan, Basingstoke, pp 1–15 Mérand F, Hofmann S, Irondelle B (2011) Governance and state power: a network analysis of European security. J Common Mark Stud 49:121–147 Merlingen M (2012) EU security policy: what it is, how it works, why it matters. Lynne Rienner Publishers, Boulder, CO Meyer C, Strickmann E (2011) Solidifying constructivism: how material and ideational factors interact in European defence. J Common Mark Stud 49:61–81 The European Union Rule of Law Mission in Kosovo (EULEX). http://www.eulex-kosovo.eu/en/ info/StaffInfo.php. Accessed 22 Sept 2011 Wiener A, Diez T (2009) Taking stock of integration theory. In: Wiener A, Diez T (eds) European integration theory, 2nd edn. Oxford University Press, Oxford, pp 241–252

Niuton Mulleti holds a PhD degree in International Relations and Diplomacy completed in 2016 at the HEIP-Centre d’Études Diplomatiques et Stratégiques (CEDS) in Paris, France. With a Bachelor and Master’s degree in International Relations awarded respectively by Gazi University in Ankara, Turkey, and Central European University in Budapest, Hungary, from 2004 to 2008, he worked at the (Central) Bank of Albania, firstly as a Specialist and then as Head of Division coordinating the process of the approximation of Bank of Albania’s legislation and procedures with the acquis communautaire. Since 2008, Dr. Mulleti has been working at EPOKA University in Tirana, Albania, initially as a Lecturer at the Department of Political Science and International Relations, and since 2017, as Acting Head of the Department of Law. During 2015–2018, he was the Institutional Coordinator at the Capacity Building Project in the Field of Higher Education ‘Strategic support on strengthening the quality assurance structures at the private higher education institutions in Albania’ (QAinAL) funded by the Erasmus+ programme. Dr. Mulleti has also been the coordinator of the activities of

48

N. Mulleti

EPOKA University in the Jean Monnet Module ‘EU-Western Balkans Cooperation on Justice and Home Affairs’ (EUWEB) during 2019–2022. Dr. Mulleti is the author/co-author of several journal articles and two chapters of edited books. His main research interest areas are Theories of European Integration, EU Foreign and Defence Policy and EU Law.

The Security Implications of Enlargement on EU Fundamentals Teresa Russo

Abstract Considering the three different approaches that have characterized the evolution of the EU’s enlargement policy, this chapter will show that the ‘duty of solidarity’ that permeated previous enlargements toward Eastern Europe has given way to a strong focus on the principle of ‘fundamentals first’ in the accession process of Western Balkan countries. Consisting mainly in the transfer of justice and home affairs (JHA) acquis and crime control policies aimed at respecting the rule of law principle, the current enlargement process has relegated these countries to a partnership ‘limbo’. In particular, we intend to show that despite strong conditionality in the JHA domains, the previous enlargement processes have ended up affecting the EU’s core values, and in turn, the accession methodologies and strategies toward the Western Balkans, rendering the European ‘perspective’ almost a mirage.

1 Introductory Remarks on the Ambivalence and Connection Between External Action, Enlargement, and ‘Security’ Issues Dealing with the complexity of the European Union’s (EU) external relations regime is by no means easy,1 especially due to the blurred distinction between internal and external actions,2 and the security threats and challenges that the Union was forced to face also as a result of the enlargement policy and accession process. Attempts to project EU security outwards was of specific interest in enhancing relations with the new neighbors, as well as enlargement aimed at strengthening relations and promoting stability and prosperity within and beyond the new borders of the Union. In so

1

See Ott and Wessel (2006), p. 21 ff. and, more recently, Douma et al. (2021), Wouters et al. (2021) and Chamon and Govaere (2020). 2 See Anderson (2007) and Lutterbeck (2005). T. Russo (✉) Department of Legal Sciences (School of Law), University of Salerno, Fisciano, Italy e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 T. Russo et al. (eds.), Solidarity and Rule of Law, European Union and its Neighbours in a Globalized World 9, https://doi.org/10.1007/978-3-031-29227-9_4

49

50

T. Russo

doing, EU institutions have progressively emphasized the role of the Union as a global actor3 in promoting respect of its own core values in external action, and specifically in the context of the enlargement policy, as also stated in Article 21 TEU. In this direction, the Lisbon Treaty was intended to ensure greater unity in the international presence and projection of the EU,4 thanks to the creation of the High Representative of the Union for Foreign Affairs and Security Policy assisted by the European External Action Service (EEAS), even if the Commission continues to independently manage a series of external policies (development, enlargement, trade, humanitarian assistance), or jointly with the EEAS, as in the case of the European Neighbourhood Policy (ENP). The main rules of the Union’s external action are contained in Title V of the Treaty on European Union (TEU), which includes the Common Foreign and Security Policy (CFSP), the Common Security and Defense Policy (CSDP), but also in Part V of the Treaty on the Functioning of the European Union (TFEU) concerning common commercial policy, development cooperation, humanitarian aid, etc. Furthermore, both the neighborhood policy and the enlargement policy fall within the EU’s external action, although formalized respectively in Article 8 TEU and Article 49 TEU, in conjunction with Article 2 TEU. These two policies are closely interconnected, mainly in the latest enlargements where the EU started to steer the domestic policies of States outside its borders and prevent the spillover of security issues from its neighborhood through various association agreements.5 As pointed out, ‘policy innovation in the ENP originates from the transfer and adaptation of policy ideas and instruments from internal EU policies to the field of external relations via a policy which makes the link between the inside and outside of the EU, the enlargement policy’.6 By pushing the borders outwards, enlargement determines the need to secure the Union’s new external borders and neighborhood. Furthermore, the process of creating an ever-closer union among the peoples of Europe and the need to preserve the acquis communautaire have transformed the accession of new members into an EU strategy characterized by variable times and phases tailored to States that submitted their application to join, and following increasingly complex procedures. Thus, this policy has acquired some of its own specific characteristics7 to the extent that EU

3

Cremona (2004a). Furthermore, the Lisbon Treaty indicates a modus operandi for the implementation of the Union’s external action: ‘to develop relations and establish partnerships’ with third countries and organizations that share the same principles, and makes explicit reference to the promotion of multilateral solutions to common problems (Art. 21.2 TEU). More extensively on the peculiarities of external action, see Bartoloni and Poli (2021). 5 Jakovleski (2010). 6 In this sense, see Tulmets (2007). 7 According to Sotiris Walldén (2017), p. 3, ‘[e]nlargement does not basically fall under the remit of foreign policy. Rather, it is related to the architecture of the Community/Union itself, since its objective is to bring third countries into the Union. This is why enlargement was not included in the European External Action Service (EEAS), created by the Lisbon Treaty’. 4

The Security Implications of Enlargement on EU Fundamentals

51

enlargement implies geo-strategic investment in the EU’s future as a new line of border defense,8 the inclusion of new members in EU integration based on common fundamental values with the objective of deepening solidarity between peoples, and the transformation of the governmental apparatus of States involved via policy conditionality aimed at ensuring the EU’s internal and external ‘democratic’ stability. This connection, dating back to the Eastern European Countries enlargement, has become clearer with specific reference to the Western Balkans, where the Union has combined foreign policy, intergovernmental mechanisms and instruments aimed at their stabilization and association, regional cooperation, and good neighborly relations as the main features of the enlargement policy. As a result, an ad hoc model of cooperation among Western Balkan countries and the EU strategically targeting security issues was born.9 In particular, the Area of Freedom, Security and Justice has acquired important weight in the Union’s enlargement policy for imposing JHA acquis on incoming members,10 thus underlining hierarchical conditionality related to the stability of institutions guaranteeing democracy, the rule of law, human rights, respect for and protection of minorities for the next EU accessions. Thanks to the lessons learnt from previous enlargements, and considering the need to further promote stability in a region scarred by conflict, organized crime, and corruption, the Commission, with the Council’s endorsement, proposed a new approach to judicial reform and fundamental rights, as well as justice, freedom, and security as part of the negotiating framework for the accession of the Western Balkans. Thus, strengthening the rule of law and democratic governance became central to the enlargement process.11 In addition, supporting stability and prosperity in the Western Balkans is seen as an investment not only in the future of the region, but also in the ‘EU’s own interest’. Therefore, the present chapter will argue that the three different approaches that have characterized the EU enlargement policy toward Eastern Europe are applicable to the accession of the Western Balkans, although with a strong focus on the principle of ‘fundamentals first’. It will show that accession of the Western Balkans has been affected by previous enlargements that have brought to light the lack or ineffectiveness of internal instruments for the protection of the rule of law. The events of the last decade, which have seen as protagonists new Member States (in particular, Romania, Bulgaria, Poland, and Hungary) and democratic backsliding in the rule of law, lead to arguing that they are in some way the result of the repercussions of the enlargement policy on the EU fundamentals implemented by the EU institutions themselves.

8

With specific reference to the Western Balkan countries, Macchiarini Crosson (2021) underlines that their security and defense architecture still has gaps and suggests their improvement thanks to pre-accession convergence in the field of security and defense policy. The Western Balkans are in fact members of the Organization for Security and Co-operation in Europe (OSCE) and NATO. 9 Russo (2020). 10 Lavenex (2012). 11 Communication from the Commission to the European Parliament and the Council (10 October 2012) Enlargement Strategy and Main Challenges 2012–2013, COM/2012/600 final.

52

T. Russo

2 Enlargement Policy as a Strategy of the EU’s Future Examining the European Union’s enlargement policy means looking far beyond the simple accession of new members, since it has served multiple functions12 in redefining the Union’s external relations. The settlement of the last accession negotiations package in fact led the European Council to launch another policy with neighboring countries (ENP) to extend these strategies and goals to a wider context,13 redrawing the boundaries between ‘insiders’ and ‘outsiders’ of the EU’s borders as a strategic approach to the post-enlargement situation.14 Symptomatically, pursuant to Article 21(1) TEU, the principles guiding the Union’s action on the international scene are the same that inspired its own creation, development, and enlargement that it is seeking to advance in the wider world: democracy, rule of law, universality and indivisibility of human rights and fundamental freedoms, respect for human dignity, the principles of equality and solidarity, and respect for the principles of the United Nations Charter and international law. Therefore, the first approach underlines the role of the enlargement policy in shaping EU external relations with third neighbor countries, without the prospect of membership,15 and even more with future Member States from a legal and political perspective. In the legal perspective, new Member States must comply with the EU’s membership requirements before accession, while in the political perspective, enlargement is a foreign policy instrument influencing the policymaking of third countries, encouraging the transition to democracy, and shaping the EU’s identity.16 Indeed, some authors have always considered that enlargement includes geopolitics as a key instrument of the Union’s ‘soft power’, that is to say, the most powerful weapon of its foreign policy.17

12

Sjursen (2006), p. 12. Franck (2006), p. 169. 14 Whitam and Wolff (2010). See also the considerations of Ingravallo (2019). 15 See Tulmets (2007). 16 See Cremona (2017). 17 Sotiris Walldén (2017), p. 3. An example concerning the response to Russia’s aggression against Ukraine can be found. See the Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions (12 October 2022) 2022 Communication on EU Enlargement Policy, COM(2022) 528 final, where it is stated that: ‘Full alignment with the EU’s CFSP by Albania, Montenegro and North Macedonia is a strong signal of their strategic choice of EU accession. The significant increase in formal CFSP alignment rate by Bosnia and Herzegovina and unilateral alignment by Kosovo are also recognised and welcomed. Serbia’s CFSP alignment rate has substantially decreased over the reporting period. Serbia is expected, as a matter of priority, to fulfil its commitment and progressively align with the EU CFSP, including with restrictive measures, in line with its negotiating framework’. 13

The Security Implications of Enlargement on EU Fundamentals

53

The legal requirements for membership, contained in the first paragraph of Article 237 TEEC, then Article O TEU of 199318 and finally Article 49 TEU of 1999,19 have remained virtually unchanged in the revisions of the Treaties. Only the Lisbon Treaty combines the geographical criterion (being a European State) with respect for the values set out in Article 2 TEU, and in an open formulation, with the additional ‘eligibility criteria agreed by the European Council’. Accession of new members has in fact been enriched with further substantial criteria and instruments in accordance with the European Council’s intergovernmental practice that has contributed to shaping the Union’s legal order. In 1993, following the requests of Central and Eastern European Countries (CEEC) to join the Union, the European Council drafted the so-called Copenhagen criteria.20 Furthermore, the Essen European Council of 9–10 December 1994 defined for the first time a pre-accession strategy to prepare those countries for EU membership,21 while the 1995 Madrid European Council also included the need to transform the administrative structures.22 Thereafter, EU enlargement was further ‘proceduralized’ through the adoption of pre-accession tools, namely the pre-accession strategy and accession partnerships. According to the 1997 Conclusions of the European Council of Luxembourg23 and the European Commission’s Agenda 2000,24 these instruments were necessary to face the Union’s ever-wider enlargement. A ‘pre-accession period’ was considered essential to ensure that candidates properly prepare for membership through an enhanced strategy to avoid weakening the acquis and distorting the single market. As a result, CEEC enlargement took the form of a strategy on the EU’s future seeking to put an end to European division, promoting democratic change and stability across Europe. This pre-accession strategy has evolved dynamically, above all because the European Council stressed the importance of ensuring that the EU could maintain

Art. 237 TEEC provided that: ‘[a]ny European State may apply to become a member of the Community. It shall address its application to the Council, which shall act unanimously after obtaining the opinion of the Commission’. Art. O added ‘the assent of the European Parliament, which shall act by an absolute majority of its component members’. 19 Art. 49 required compliance with the principles set out in Art. 6(1). 20 According to European Council in Copenhagen (21–23 June 1993), Presidency Conclusions, SN 180/1/93 REV 1: ‘[m]embership requires that the candidate country has achieved stability of institutions guaranteeing democracy, the rule of law, human rights and respect for and protection of minorities, the existence of a functioning market economy as well as the capacity to cope with competitive pressure and market forces within the Union. Membership presupposes the candidate’s ability to take on the obligations of membership including adherence to the aims of political, economic and monetary union’. 21 European Council in Essen (9–10 December 1994), Presidency Conclusions, EU 12- 1994, p. 12. 22 European Council in Madrid (15–16 December 1995). Presidency Conclusions, EU 121995, p. 18. 23 European Council in Luxembourg (12–13 December 1997), Presidency Conclusions. 24 Commission of the European Communities (15 July 1997) Agenda 2000 Vol. I: For a stronger and wider Union, COM/97/2000 final, Agenda 2000 Vol. II: The challenge of enlargement, COM/97/2000 final. 18

54

T. Russo

and enhance its own development. Hence, the pace of enlargement must take into account the EU’s capacity to absorb new members, which also depends on meeting the membership criteria. Therefore, strict conditionality was requested for Croatia’s accession. In December 2006, the European Council agreed that an enlargement strategy based on consolidation, conditionality, and communication, combined with the Union’s capacity to integrate new members, should have formed the basis for renewed consensus on enlargement.25 In fact, in its Opinion of 12 October 2011, the Commission called on Croatia to maintain its efforts to align with the acquis and further strengthen its administrative capacity, including through sustainable progress of its public administration reform, closely monitoring the commitments that Croatia undertook in the area of the judiciary, the fight against corruption, and fundamental rights in the area of justice, freedom, and security, including border management.26 Furthermore, Croatia’s accession would contribute to strengthening the stability, freedom, and prosperity in Europe, also playing an active role in regional cooperation in the Western Balkans. With specific reference to the area conventionally identified as the Western Balkans, the Union adopted further approaches for candidate and potential candidate countries,27 requiring the peaceful settlement of any border disputes and other related issues concerning the protection of minorities.28 In particular, it adopted a common strategy for South-Eastern Europe29 that included the well-known Stabilization and Association Process (SAP) launched by the European Commission in 1999.30 The aim of this strategy was primarily to support the implementation of peace agreements in order to restore political security in the area. Second, the Commission wanted to put in place a new strengthened approach for Balkan countries, including a wide range of financial, economic, and political aid. It mainly aimed at concluding specific Stabilization and Association Agreements (SAAs) with each country, with a view to joining the EU once the Copenhagen criteria were met.31 In other words, a progressive partnership inspired by the accession

25 European Council in Brussels (14–15 December 2006), Presidency Conclusions, 16879/1/06 REV 1. 26 Commission Opinion (12 October 2011) on the application for accession to the European Union by the Republic of Croatia, in O.J. L 112/3. 27 EU’s enlargement policy involves instruments which allow differentiated treatment’, so Lippert (2017), p. 2. 28 Basheska (2014). 29 The European Approach toward South-East Europe as a region was unveiled as the Stability Pact for South-Eastern Europe (1999/345/CFSP, Common Position of 17 May 1999) and then the Process for Stability and Good Neighbourliness in the South-Eastern Europe (Council Common Position of 16 June 2000 repealing Common Position 98/633/CFSP), although the first initiative was launched at the Royaumont summit in 1995. Cremona (1999) and Ehrhart (1999). 30 In this context, the European Commission proposed the creation of a stabilization and process to enhance the existing ʿRegional Approachˡ of the European Union (EU) vis à vis these countries in the form of a new kind of contractual relation: Stabilisation and Association Agreements. 31 European Council in Santa Maria da Feira (19–20 June 2000), Presidency Conclusions.

The Security Implications of Enlargement on EU Fundamentals

55

partnerships of previous candidate countries, although adapted to the specificities of SAP.32 Thus, the EU enlargement process toward the Western Balkans has been permeated by the goals of stabilizing and furthering EU security.33 One of the main concerns was the establishment of good neighborly relations,34 ‘bearing in mind the overall EU interest’ and consequently of some EU Member States. While major geostrategic interests have forced maintaining the region close to the Union, this has not implied their integration, also as a result of the ‘stop-and-go’ approach of EU institutions. Conversely, it represents the necessary completion of the Union’s geostrategic area also due to the risks that may derive from the influences of other players in the same area.35 In this geostrategic perspective, enlargement to the Western Balkans should be accelerated also in light of the new accession applications of Ukraine, Moldova, and Georgia, which risk affecting their accession and the EU’s stability.

2.1

. . . A Process of Solidarity in EU Integration

Another approach taken to explain this policy and to understand the Union itself36 is based on the decisions that underpin enlargement, essentially the reasons behind enlargement.37 There is no doubt that the enlargement policy translates into a process of solidarity in EU integration, as membership is open to those European States that respect its values and are committed to promoting them.38 Indeed, the principles of pluralist democracy and respect for human rights, as part of the

32

As well known, this process began with the Zagreb Summit in 2000. On this occasion, the EU reaffirmed its determination to fully and effectively support the European perspective of the Western Balkan countries, and to further strengthen their reciprocal privileged relationships, including drawing on the experience of enlargement. However, the turning point was the European Council in Thessaloniki (19–20 June 2003), Presidency Conclusions, www.refworld. org/docid/3f532b584.html. Then, the Thessaloniki Summit, which brought together the heads of State or government of EU Member States and the acceding and candidate States of the Balkans on 21 June 2003, launched a high-level multilateral political forum, the EU-Western Balkans Forum, and led to the adoption of the well-known Thessaloniki Declaration, as well as The Thessaloniki Agenda for the Western Balkans: Towards European integration. This agenda has expressly provided for the accession dimension of the stabilization and association process. See Russo (2015). 33 In a critical view, see Burazer (2020), p. 40. 34 European Council of Helsinki (10–11 December 1999), Presidency Conclusions. 35 Markovic Khaze and Wang (2021) and Panagiotou (2021). 36 Sjursen (2012) distinguishes three ideal conceptions of the EU as: (i) a problem-solving entity, (ii) a value-based community, and (iii) a rights-based post-national union. 37 Following this perspective, Sjursen (2012), p. 505, reflects on: ‘[w]hy expand? Given the costs and risks of enlargement, why has the EU consistently chosen to expand, rather than to remain a smaller and more manageable club? And why have individual states, especially those set to pay the highest price for enlargement, not used their power to veto this process?’. 38 In this sense, see the considerations of Cremona (2004b).

56

T. Russo

common heritage of the peoples of the States brought together in the European Communities and as essential elements of membership of the Communities, were already underlined by enlargement to the South, first with the accession of Greece and then Spain and Portugal, dictated by the need for the consolidation of young democratic regimes in neighboring states.39 However, this process has become increasingly sophisticated, above all because key decision-makers within the Commission and Member State governments play a crucial role.40 For acceding States, enlargement means starting a process of inclusion in an entity capable of providing financial aid, intervening to resolve political issues, and supporting reforms,41 combined with the need to respect a series of fundamentals as provided in Article 2 TEU. For Member States, it is also seen as an act of duty and the result of a sense of solidarity,42 as well as an objective. In the Opinion of 19 April 1994 on the applications for accession to the European Union by the Republic of Austria, the Kingdom of Sweden, the Republic of Finland, and the Kingdom of Norway, the Commission emphasized that one of the objectives of the European Union was the desire of Member States to deepen solidarity between their peoples while respecting their history, their culture, and their traditions.43 Nevertheless, the feeling of commonality, one of the fundamentals of European integration toward a common-value entity, should have continued to facilitate the expectations of solidarity across the borders of Member States. On the contrary, the widening and deepening that have always gone hand-in-hand in the EU’s enlargement policy44 have slowed down due to the greater heterogeneity of Member States.

39 Commission opinion (23 May 1979) on the application for accession to the European Communities by the Hellenic Republic, in OJ L 291/3, 19.11.1979, and Commission opinion (31 May 1985) on the application for accession to the European Communities by the Kingdom of Spain and the Portuguese Republic, in O.J. L 302. 40 Schneider (2008). 41 Indeed, according to Petrovic and Wilson (2021) ‘some of the new requirements which the EU demands the Western Balkan candidate states to meet in order to gain membership, such as the resolution of their ‘bilateral disputes. . . as a matter of urgency’, are really difficult to achieve’. 42 According to Riddervold and Sjursen (2006) ‘[the] Danish authorities have been particularly concerned about ensuring that the Baltic States were given the same opportunity as the Central and East European countries (CEECs) to negotiate for membership’. Furthermore, it is well known, the enlargement in 2004 was strongly supported by Germany. In this direction, see Zaborowski (2006). 43 Commission Opinion (19 April 1994) on the applications for accession to the European Union by the Republic of Austria, the Kingdom of Sweden, the Republic of Finland and the Kingdom of Norway, O.J. C 241/3. 44 Sotiris Walldén (2017), p. 4, considers that: ‘[t]ension between widening and deepening has accompanied the Union throughout its history. In the ‘good times’ this was overcome with the simultaneous advance of both processes: successive enlargements were accomplished in parallel with further steps in integration. The two processes were at times even formally linked’. On the contrary, according to Lippert (2017), p. 3 ff., widening and deepening do not go hand in hand, they are not formally interlinked processes and follow different logic. The EU grants new members a set of derogations and transitional arrangements that lead to differentiation, mainly in implementing secondary law for a limited period of time. Enlargement should be convergence not differentiated integration.

The Security Implications of Enlargement on EU Fundamentals

57

Therefore, the duty/objective of solidarity—a justification for past enlargements— promoted by Member States has not been sufficiently robust to withstand further expansion. As pointed out, ‘the EU faces the challenge of redefining itself in a manner whereby it can retain the potential for commanding loyalty or establishing the kind of solidarity needed to provide a basis for collective action’.45 The events concerning Poland, Hungary, and the Czech Republic’s refusal to share responsibilities regarding the allocation quota of migrants show the difficulties of acting on a common basis of solidarity among Member States.46 Similarly, ‘disobedient’ Member States, such as Hungary and Poland, adopted constitutional reforms showing signs of ‘democratic backsliding’ of the rule of law,47 moving away from the idea of being members of a community of law. Indeed, the latest enlargement poses much greater challenges than previous ones, particularly with regard to the EU’s identity and values, shifting the focus from the aforementioned duty/objective of solidarity to strict alignment with accession criteria, specifically, respect of the rule of law principle. The problem is also that the ‘race’ to integrate CEEC in the European Union has resulted in a process of incomplete or partial accession (Bulgaria and Romania became subject to the Cooperation and Verification Mechanism, CVM),48 or in any case, not perfectly complying with the principles of then Article 6, par. 1, TEU, now the values of Article 2 TEU. The political criteria for EU accession that require of candidate countries the stability of institutions guaranteeing democracy, the rule of law, human rights, and respect for and protection of minorities, are only some of the values in Article 2 TEU, but are considered a priority, thus downgrading others (human dignity, freedom, pluralism, non-discrimination, tolerance, justice, solidarity, equality of women and men). In particular, solidarity, as a structural principle of the EU,49 45

So, see Sjursen (2012), p. 516. See the European Court of Justice (Third Chamber), Judgment (2 April 2020), Joined Cases C-715/17, C-718/17 and C-719/17, European Commission v Republic of Poland and Others, in which the Court stated that the Republic of Poland, Hungary, and the Czech Republic failed to fulfil their obligations under Art. 5(2) of Decision 2015/1523 and Art. 5(2) of Decision 2015/1601, and have consequently failed to fulfil the subsequent relocation obligations under Art. 5(4) to (11) of each of those two decisions. These decisions were adopted to establish provisional measures in the area of international protection for the benefit of Italy and Greece based on Art. 78(3) TFEU and Art. 80 TFEU. Therefore, these three countries remain in breach of their legal obligations and have shown disregard for their commitments to Greece, Italy, and other member states. See Russo (2021), p. 289. 47 See for all, Bátora and Fossum (2019) p. 6. 48 Commission Decision 2006/928/EC (13 December 2006) establishing a mechanism for cooperation and verification of progress in Romania to address specific benchmarks in the areas of judicial reform and the fight against corruption, O.J. L 354/56. 49 This is the interpretation of the European Court of Justice, Judgment (29 June 1978), case C-77/ 77, Benzine en Petroleum Handelsmaatschappij v. Commission of the European Communities, para. 15, where the Court expressly included the principle of community solidarity among the fundamental principles of the Community; as well as European Court of Justice, Judgment (7 February 1979), case C-128/78, Commission of the European Communities v. United Kingdom, para. 12, where the Court stated that: ‘[t]he fact that a State, in consideration of its national interests, 46

58

T. Russo

as well as the principle that permeates different policies and actions,50 fails to assume general significance as an EU fundamental. Moreover, the wording of Article 2 is rather unfortunate, relegating solidarity to a common value in the societies of Member States.51 As underlined, accession reforms are assessed by their outcome, not the processes and behaviors of the actors involved,52 and totally calibrated with reference to respect for the rule of law. Therefore, the first enlargement approach as a geopolitical strategy for EU stability seems to prevail considering that it accelerates shifts in policy and institutional arrangements, often without anchoring them in concrete and far-reaching changes in the principles and values that should provide the foundations for the lasting impact of pre-accession reforms.53

unilaterally breaks the balance between the advantages and the burdens deriving from its membership of the Community affects the equality of the Member States before the law community and causes discrimination against their citizens. This failure to comply with the duties of solidarity accepted by the Member States with their accession to the Community shakes the Community legal order from its foundations’. The same is true of the European Court of Justice, Judgment (7 February 1973), case C-39-72, Commission of the European Communities v. Italian Republic, para. 25. 50 The Treaty of Lisbon includes solidarity in various ways in the Preamble and among the internalexternal objectives of the Union (Art. 3 TEU). Solidarity is also the basis of the mutual defense clause referred to in Art. 42, par. 7, TEU. In TFEU, on the other hand, various provisions recall the principle of solidarity as a principle on which they should be based: the common policy on asylum, immigration and border controls (Art. 67, paragraph 2, and Art. 80 TFEU), the economic policy measures to be adopted if serious difficulties arise in the supply of certain products, in particular in the energy sector (Art. 122 TFEU), and the Union policy itself in the energy sector (Art. 194 TFEU). Beyond these provisions, the Lisbon Treaty introduced a specific ad hoc rule on the solidarity clause (Art. 222 TFEU). See Russo (2021), p. 282. 51 As Scheppele and Kelemen (2020) underline: ‘for some EU member governments, these values no longer define the aspirational horizon. The requirements of Art. 2 are simply no longer met in all Member States’. 52 Fruscione (2020), p. 14, ‘the more a government is outwardly committed to the EU, the more the West will endorse it. The stability achieved is thus the absence of regime change in which the local government keeps the EU path as a goal in foreign policy, and – in exchange – the EU turns a blind eye to the fragility of its democratic system. Political stability becomes a dogma, as regime changes are excluded from the game. Therefore, instead of a genuine transition towards the consolidation of democracy, many countries in the region have been developing an authoritarian model masked with the acceptance of ‘Western values’. Western values are thus exploited to maintaining strong relationships with, and legitimacy by, EU institutions, whose failing conditionality is prolonging the transition of the Balkans’. 53 Wouters (2020), p. 267, also underlines ‘[i]t can be submitted that a more comprehensive approach to the other values contained in Art. 2 TEU (human dignity, freedom, pluralism, non-discrimination, tolerance, justice, solidarity, equality of women and men) may well hold the key to an accession process that is able to effectively prevent the kind of backsliding we are now confronted with’.

The Security Implications of Enlargement on EU Fundamentals

2.2

59

. . .and a Driven Transformation Process for Respect of the Rule of Law

As a result, the third approach looks at EU enlargement as a driving transformation and modernization process in candidate countries that has evolved in the sense of guaranteeing mainly (if not exclusively) respect for the rule of law, according to several documents adopted in the European Commission’s enlargement policy implementation54 assuming a non-minimalistic understanding of the rule of law linked to democracy and human rights.55 Since requesting EU membership is a complex process of adapting national legal orders to a regime governed by liberal democracies with robust checks and balances, an independent judiciary, independent media, and civil and political rights, enlargement has been considered a form of Europeanisation56 more easily accepted by the policymakers of post-communist countries due to the economic, political, and social crises that accompanied the end of communism. This was an opportunity for policy change and enabled the then European Community to assume the role of mentor in the democratization of Eastern Europe.57 The aforementioned pre-accession strategy put in place ad hoc was intended to guarantee a sort of roadmap in the implementation of EU-led reforms, and above all, in adopting the acquis communautaire, thus turning enlargement into a policy with a transformative aim.58 Therefore, in the accession process of the Western Balkans, the Commission proposed, in the Enlargement Strategy 2011–2012,59 further improvements to its negotiating approach, including a greater emphasis on rule of law issues. This means that the negotiating chapters on judicial reform and fundamental rights (Chapter 23) and justice, freedom, and security (Chapter 24) would be opened first in all future negotiations.60 Furthermore, in the 2015 Strategy, the backbone of the enlargement policy was the focus on the fundamentals linked to the core EU values, and above all the rule of law: countries aspiring to join the Union would have needed to establish and promote from an early stage the proper functioning of the core institutions necessary for securing the rule of law. The Commission emphasized that enlargement needs to be understood as a process supporting reform and the fundamental

According to Louwerse and Kassoti (2019), pp. 225–226, ‘it is well known that the policy has developed over the years through Commission Opinions on the application for Membership of the EU, Strategy Papers, annual progress reports, Accession and European Partnerships, complemented by Presidency and Council Conclusions. It is in these Copenhagen related documents that the rule of law elements in enlargement can be found’. 55 Janse (2019), p. 58. 56 See, among others, Schimmelfennig and Sedelmeier (2005), and Hughes et al. (2004). 57 Dimitrova (2011). 58 Hillion (2011). 59 Enlargement Strategy and Main Challenges 2012–2013, cit. 60 In line with this ‘new approach’, the opening of Chapters 23 and 24 was a top priority in the negotiations with Montenegro and Serbia. 54

60

T. Russo

changes needed to meet the obligations of EU membership.61 Nevertheless, given the complexity of the necessary reforms, it was also immediately evident that while the long-term process was starting, structural shortcomings persisted, notably in the key areas of the rule of law and progress in setting up functioning and independent judicial systems and frameworks to tackle corruption and organized crime. Although the ‘European perspective’ was reaffirmed in the Commission’s strategy of February 2018 and in the Commission’s Communication of 5 February 2020, titled ‘Strengthening the accession process - A credible European perspective for the Western Balkans’, which introduced a revised methodology for enlargement to the Western Balkans,62 in the 2021 Communication the Commission considers that ‘a number of relevant recommendations related to rule of law reforms across the region remain to be addressed and given priority’.63 In these communications, acceding countries are required to give top priority in the negotiations to the rule of law, justice, and fundamental rights. Indeed, the rule of law is not considered in isolation, but always in connection with fundamental rights and governance.64 In fact, its implementation requires institutional transformation ensuring independence, the quality and efficiency of the judicial system, as well as a strong framework for the prevention of corruption and the full implementation in practice of fundamental rights, strengthening the functioning of democratic institutions and public administration reform. In fact, in the 2022 Communication, the Commission emphasizes that the function of the EU’s enlargement policy, as a geostrategic investment in long term peace, stability and security of the entire continent, continues to drive forward

61

Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions (10 November 2015) EU Enlargement Strategy, COM(2015) 611 final. 62 This methodology confirms the crucial role of EU Member States, calling for a stronger political steer at the highest levels, and advancing political and policy dialogue through regular EU-Western Balkan summits and intensified ministerial contacts. Furthermore, following the introduction of this revised methodology, negotiating chapters are now divided in six thematic clusters. The first concerns the Fundamentals. 63 See the Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions (19 October 2021) 2021 Communication on EU Enlargement Policy, COM(2021) 644 final, that states: ‘the Western Balkan countries are now closely associated with the work of EU agencies in the field of justice and home affairs. Structured cooperation with the EU on migration and on security issues is ongoing, especially on counter-terrorism, prevention of radicalisation and violent extremism, and organised crime’. 64 Pech (2011), pp. 10–11, considers that: ‘[i]n the EU’s constitutional framework, the rule of law is not only referred to as a common foundational value but also used as a benchmark to assess the actions of candidate countries and as a transversal foreign policy objective [. . .] The EU, however, has not been solely concerned with increasing compliance with the rule of law in candidate countries. In fact, the EU Treaties initially assigned to the EU’s foreign and security policy and development cooperation policy the same objective of developing and consolidating the rule of law even before formally requiring that any European country wishing to join the EU must respect the principles on which the EU is founded’.

The Security Implications of Enlargement on EU Fundamentals

61

transformation and modernisation in the partner countries and bring them even closer to the EU.65 Nevertheless, as highlighted, ‘the erosion of the rule of law in Poland and Hungary exposed both the weaknesses of the judicial system and the loss of constituency in support of the rule of law among citizens’ also in the Western Balkans.66 The rule of law calls for a societal transformation to take root in applicant States and the Commission does not seem to consider it adequately.67 Indeed, the pre-accession processes were unsatisfactory in addressing the necessary reforms in the consolidation of the rule of law in new Member States, specifically regarding the structural problems within societies. Thus, the current debate concerning the pitfalls of internal rule of law oversight mechanisms should consider that the emerging systemic threats also depend on the accession processes, since the latest Member States transited without transforming, which has led to ‘the paradox of the increased robustness of rule of law conditionality that is not followed by an adequate strengthening of the rule of law’.68

3 The Problem of Rule of Law Backsliding in Post EU Accession Consequently, the problem of rule of law backsliding post EU accession has resulted in strengthening the conditionality regime for acceding countries to the extent that the Commission’s legislative proposal for IPA III for 2021–2027 was shaped around the rule of law, fundamental rights and migration, including strengthening cooperation on security, the fight against radicalization and organized crime. The new European Parliament and Council Regulation (EU) 2021/1529 of 15 September 2021 that established IPA III, and differently from IPA II, provided that, ‘[a]s the respect for democracy, human rights and the rule of law is essential for sound financial management and effective Union funding as referred to in the Financial Regulation, assistance could be suspended in the event of the degradation of democracy, human rights or the rule of law by a beneficiary’ (recital 40). In this direction, sound financial management seemed to be the only instrument adopted to overcome the ‘disconnection’ between the EU’s internal and external frameworks.69 65 See the Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions (12 October 2022) 2022 Communication on EU Enlargement Policy, COM(2022) 528 final. 66 Hogić (2020), pp. 198–199. 67 As suggested, although ‘monitoring reports increasingly acknowledge the importance of societal transformation needed for the rule of law to take root in the applicant states [. . .] this soft rule of law element has not (yet) been incorporated in the Commission’s understanding of and approach towards the rule of law’. In this sense, see Louwerse and Kassoti (2019) and Hogić (2020), p. 197. 68 See again Hogić (2020), p. 222. 69 See Pech (2016), who emphasizes this disconnection.

62

T. Russo

Although the Treaties include different mechanisms,70 it is evident that none have been specifically dedicated to protecting the rule of law and tackling the problem of backsliding post EU accession. On the contrary, the clear nexus between EU pre-accession conditionality and membership obligations to guarantee respect for the rule of law, as a founding EU value, has recently been emphasized by EU institutions, particularly for the protection of the EU budget, as the rule of law obligations must be applied to both candidate and acceding countries, as well as Member States. As well known, the need to effectively address situations entailing a systemic threat to the rule of law led the Commission to adopt the 2014 Rule of Law Framework,71 which for the first time introduced a mechanism for assessing whether a Member State had endangered this principle sufficiently that Article 7 TEU should be invoked. It aimed to prevent the emerging threats to the rule of law from escalating to the point where the Commission has to activate such mechanisms, thanks to a three-stage process that initiates with dialogue with the Member State concerned.72 Furthermore, due to the absence of a comprehensive Treaty definition, the core meanings of the rule of law provided by the Court of Justice,73 above all after the democratic backsliding of Poland, Hungary, Romania, and Bulgaria, was finally clarified by the Commission74 in a ‘non-exhaustive’ list of principles. 70

Some examples of legal mechanisms are the infringement proceedings pursuant to Art. 258 TFEU and preliminary references according to Art. 267 TFEU, apart from the political mechanism of the breach of values procedure which includes a preventive and sanctioning mechanisms, respectively in Art. 7, paras. 1 and 2 TEU. 71 Communication from the Commission to the European Parliament and the Council (19 March 2014) A new EU Framework to strengthen the Rule of Law, COM/2014/0158 final. 72 Even the Council launched the annual ‘Rule of Law Dialogue’ in 2014: ‘[h]aving criticised the Commission’s initiative primarily on the (unconvincing) ground that it would breach the principle of conferral which governs the allocation of powers between the EU and its Member States, the Council proposed its own solution: a rule of law dialogue between national governments and to be held once a year in Brussels’. So, Kochenov and Pech (2015). 73 From the 1986 Les Verts judgment where the European Court of Justice (ECJ) first referred to the then EEC as a community based on the rule of law, an increasing number of Treaty provisions and EU secondary law, also with reference to external action, translate the core components of the rule of law, thanks to the important clarificatory jurisprudence of the ECJ. See for this reconstruction Pech and Grogan (2020). 74 ‘The precise content of the principles and standards stemming from the rule of law may vary at national level, depending on each Member State’s constitutional system. Nevertheless, case law of the Court of Justice of the European Union and of the European Court of Human Rights, as well as documents drawn up by the Council of Europe, building notably on the expertise of the Venice Commission, provide a non-exhaustive list of these principles and hence define the core meaning of the rule of law as a common value of the EU in accordance with Article 2 TEU. Those principles include legality, which implies a transparent, accountable, democratic and pluralistic process for enacting laws; legal certainty; prohibition of arbitrariness of the executive powers; independent and impartial courts; effective judicial review including respect for fundamental rights; and equality before the law’. See also the Communication from the Commission to the European Parliament, the European Council and the Council (3 April 2019) Further strengthening the Rule of Law within the Union, State of play and possible next steps, Brussels, COM(2019) 163 final.

The Security Implications of Enlargement on EU Fundamentals

63

Nevertheless, activated in the attempt to reverse the turn towards illiberal democracy in Poland in January 2016, which despite successive recommendations persisted in its disregard, this mechanism highlighted the need for new tools or requirements, such as a rule of law conditionality requirement.75 Thus, the Commission proposed a new mechanism to protect the EU budget from financial risks linked to generalized deficiencies regarding the rule of law in Member States,76 that is to say, Regulation 2020/2092 of the European Parliament and of the Council of 16 December 2020 on a general regime of conditionality for the protection of the Union budget.77 This regulation was a clear signal towards new Member States, particularly in Recital 5 specifying, ‘[o]nce a candidate country becomes a Member State, it joins a legal structure that is based on the fundamental premiss that each Member State shares with all the other Member States, and recognises that they share with it, a set of common values on which the Union is founded, as stated in Article 2 TEU. That premiss implies and justifies the existence of mutual trust between the Member States that those values will be recognised and, therefore, that the law of the Union that implements them will be respected. The laws and practices of Member States should continue to comply with the common values on which the Union is founded’. As a result, Hungary and Poland brought unsuccessfully actions for annulment before the Court of Justice, but the case provided the occasion for the Court to underline, recalling the aforementioned Recital 5 of the Regulation, that: ‘[c]ompliance by a Member State with the values contained in Article 2 TEU is a condition for the enjoyment of all the rights deriving from the application of the Treaties to that Member State’ (Point 126, C-156/21 and Point 143, C-157/21); ‘[c]ompliance with those values cannot be reduced to an obligation which a candidate State must meet in order to accede to the European Union and

75

Halmai (2019). Recital 6 of the Regulation (EU, Euratom) 2020/2092 of the European Parliament and of the Council (16 December 2020) on a general regime of conditionality for the protection of the Union budget, O.J. L 433/1, states that: ‘[w]hile there is no hierarchy among Union values, respect for the rule of law is essential for the protection of the other fundamental values on which the Union is founded, such as freedom, democracy, equality and respect for human rights. Respect for the rule of law is intrinsically linked to respect for democracy and for fundamental rights. There can be no democracy and respect for fundamental rights without respect for the rule of law and vice versa is contested by the same member States’. See Nascimbene (2021). 77 Recital 3 of the same Regulation states: ‘the rule of law requires that all public powers act within the constraints set out by law, in accordance with the values of democracy and the respect for fundamental rights as stipulated in the Charter of Fundamental Rights of the European Union (the ‘Charter’) and other applicable instruments, and under the control of independent and impartial courts. It requires, in particular, that the principles of legality implying a transparent, accountable democratic and pluralistic law-making process; legal certainty; prohibition of arbitrariness of the executive powers; effective judicial protection, including access to justice, by independent and impartial courts; and separation of powers, be respected’, thus closely reflecting the findings of the Court over the years as regards the rule of law. It cannot be ignored that this regulation has been challenged by Hungary and Poland that brought actions for annulment on 11 March 2021, Hungary v European Parliament and Council of the European Union (Case C-156/21) and Republic of Poland v European Parliament and Council of the European Union (Case C-157/21). 76

64

T. Russo

which it may disregard after its accession’ (Point 127, C-156/21 and Point 144, C-157/21). Furthermore, the Court emphasized the close connection between the rule of law, solidarity, and other values enshrined in Article 2 TEU. In fact, it clarified that the Union budget is one of the principal instruments for giving practical effect, in the European Union’s policies and activities, to the fundamental principle of solidarity between Member States, and that the implementation of this principle, through the Union budget, is based on Member States’ mutual trust (i.e., the common values of Article 2 TEU), requiring the responsible use of common resources included in the budget (Point 129, C-156/21 and Point 147, C-157/21). Nevertheless, the European Parliament stressed that the Commission’s response to this Court ruling was inadequate, requiring urgent action against the ongoing violations of the principles of the rule of law in some EU Member States to fulfil its duties as the guardian of EU Treaties.78 Furthermore, this Regulations, applicable when ‘breaches of the principles of the rule of law in a Member State affect or seriously risk affecting the sound financial management of the Union budget or the protection of the financial interests of the Union in a sufficiently direct way’ (Art. 4), will fail to apply easily in cases of the endangering of the independence of judges (Art. 3). Hence, the principle of the rule of law will continue to be under ‘attack’ because it is closely related to the denial of the primacy of EU law over domestic law.79 It is no coincidence that after Hungary’s general election where Prime Minister Viktor Orban won a fourth consecutive term, the European Commission announced the launch of its rule of law mechanism against the Hungarian government which is still pending at the moment.80 Although the rule of law is considered part of Europe’s DNA,81 the soft conditionality adopted with regard to CEEC generated rather divergent outcomes in these countries concerning the rule of law. This principle is in fact intended in different way, particularly with respect to the functioning of national judicial systems, traditionally falling within the province of States’ competence. As a result, a novel rule of law conditionality has been imposed to new candidate countries, without however being able to produce results deemed adequate in terms of the EU’s political criteria.82 78

European Parliament resolution (10 March 2022) on the rule of law and the consequences of the ECJ ruling, 2022/2535(RSP). 79 See the European Court of Justice, Opinion of Advocate General Collins (20 January 2022), Case C-430/21, RS. 80 As well known, the European Commission formally launched the process of applying the conditionality mechanism against Hungary on 27 April 2022. On 18 September 2022, the Commission proposed to the Council the budgetary protection measures to be taken. See Council Implementing Decision (EU) 2022/2506 of 15 December 2022 on measures for the protection of the Union budget against breaches of the principles of the rule of law in Hungary, in OJ L 325, 20.12.2022. 81 Timmermans (2015): ‘it’s part of where we come from and where we need to go. It makes us what we are’. 82 According to Damjanovski et al. (2020) p. 7: ‘[t]he novel rule of law conditionality has tried to streamline and integrate a set of procedural and institutional criteria which have been uniformly imposed on the candidate countries. However, this endeavour has been exceptionally challenging

The Security Implications of Enlargement on EU Fundamentals

65

4 Conclusions This analysis, which has sought to highlight the different approaches of the European Union’s enlargement policy, allows drawing some critical conclusions concerning the Western Balkans. First of all, their accession to the Union has been promoted with a formula indicating that ‘stabilisation through transformation is in the own interest’, thus combining the first and third approaches. The EU’s enlargement toward the Western Balkans in fact represents enlargement toward a geostrategic zone that is still characterized by democratic instability. Nevertheless, some of the Balkans States have already joined the EU, and the perpetuation of the division of the peninsula would continue to foster instability in the area, as occurred with the migration crisis and the scarce solidarity toward the Western Balkans overwhelmed by migratory flows when they were not (and are still not) ready to manage them. Furthermore, also observed is that the second approach—integration in a process of solidarity—has found little support among Member States and entirely depends on progress achieved in terms of political stabilization and democratic reforms. This transformation was to be inspired by respect for the Copenhagen political criteria, or values in Article 2 TEU, which conversely underlined their weakness. In fact, their lack of application after accession has caused a discrepancy between EU accession conditions and membership obligations.83 All this has led to strong criticism or the ‘Copenhagen dilemma’, that is to say, ‘the EU’s inability to reshape the legalpolitical developments in the Member States falling outside the material scope of EU law post accession date’.84 Furthermore, the transformation concerning the Western Balkans has highlighted, as mentioned, the focus on respect for an all-encompassing concept of the rule of law in a list of endless benchmarks that could be included in the context of technical assistance, without becoming conditions for membership.85 Enlargement cannot result in an endless process, otherwise running the risk of losing credibility. As pointed out, ‘no methodology can resolve the lack of political will’,86 ending up affecting the credibility as well as the stability of the EU itself, above all after the applications for accession of Ukraine, Moldova, and Georgia. The granting of candidate status to Ukraine and Moldova is the European Council response to the Russian aggression, that has putted to the test especially with regard to the determinacy of the criteria on the judiciary in Chapter 23 in view of the very limited EU legislation in the area. Apart from various Treaty articles (Arts. 2, 7 and 10 TEU) and provisions of the Charter of Fundamental Rights of the European Union (CFR) (Arts. 47–50), which are all generic, the EU accession requirements regarding the state judiciary have heavily relied on external sources such as the United Nations or the CoE’. 83 Halmai (2017), p. 3, ‘which might be one of the reasons for non-compliance after accession in some of the new Member States’. 84 Kochenov and Dimitrovs (2021). 85 According to Sotiris Walldén (2017), p. 22, ‘[i]n this way pressure for democracy would be maximised and accession could be decided on the basis of the basic prerequisite (which admittedly is not there in many of the countries), not of a multitude of expediencies that now dominate’. 86 Burazer (2020), p. 29.

66

T. Russo

the rules-based order, relaunching the function of EU enlargement as a strong anchor for peace, security and solidarity. Nevertheless, rapid enlargement that does not respect the enlargement procedures and functions, and which disrupts the Western Balkans does not seem feasible (also in terms of opportunities). Worth recalling is that Bulgaria and Romania, which were submitted to a Cooperation and Verification Mechanism (CVM)87 that sought to hold to account the lingering judicial and corruption issues in the two countries and monitor progress after accession,88 continue to take political positions or legislative reforms that undermine the European integration process. On the one hand, Romania adopted a wide-ranging reform and national practice in the field of justice and the fight against corruption contrary to respect for the rule of law, as stated by the Court of Justice.89 On the other hand, Bulgaria’s veto obstructed the opening of negotiations with North Macedonia for a long time. In addition to these two States, Hungary is now subject to the mechanism for adopting budgetary protection measures for violation of the rule of law. It is difficult to understand how States that do not respect the Union’s fundamental values can make their national interests prevail, thus affecting the enlargement process. This evidently depends on the Union’s institutional setup (in particular, the requirement for unanimity in the enlargement policy), as well as the exploitation of the good neighborliness condition for national interests.90 However, easier to understand is that ‘old’ and ‘new’ Member States are engaged in a dispute between strict anchoring to the respect of EU values, namely the principle of the rule of law, and the urge for EU solidarity with Western Balkan candidates and respecting their right to equal treatment91 with regard to prior EU candidates in Central Eastern Europe, although downplaying the importance of EU conditions related to the rule of law and human rights.92

87

Commission Decision 2006/928/EC (13 December 2006) establishing a mechanism for cooperation and verification of progress in Romania to address specific benchmarks in the areas of judicial reform and the fight against corruption, O.J. L 354/56. 88 Equally, the countries are partial members given that they were not members of the Schengen and the Euro area. 89 European Court of Justice (Grand Chamber), Judgment (18 May 2021), Joined Cases C-83/19, C-127/19, C-195/19, C-291/19, C-355/19 and C-397/19, Asociaţia ‘Forumul Judecătorilor din România’ and Others v Inspecţia Judiciară and Others and, more recently, Judgment of the Court (Grand Chamber) of 21 December 2021, Criminal proceedings against PM and Others, Joined Cases C-357/19, C-379/19, C-547/19, C-811/19 and C-840/19 where the Court stated that this mechanism ‘is, as long as it has not been repealed, binding in its entirety on Romania. The benchmarks in the annex to that decision are intended to ensure that Romania complies with the value of the rule of law, set out in Art. 2 TEU, and are binding on it, to the effect that Romania is required to take the appropriate measures to meet those benchmarks, taking due account, under the principle of sincere cooperation laid down in Art. 4(3) TEU, of the reports drawn up by the Commission on the basis of that decision, and in particular the recommendations made in those reports’. 90 Basheska (2014), pp. 95–96. 91 Schimmelfennig (2014). 92 With regard to Hungary’s official position on EU enlargement, see Huszka (2017).

The Security Implications of Enlargement on EU Fundamentals

67

Finally, the EU membership perspective has not led to a formidable democratic institutional change of the Western Balkans, particularly with regard to the rule of law standards.93 Consisting mainly in the transfer of JHA acquis and crime-control policies to respect the rule of law principle,94 the current enlargement process has ended up relegating such countries to a partnership ‘limbo’, despite being considered ‘a geostrategic investment in a stable, strong and united Europe based on common values’.95 Regardless of progress in the JHA domains, the enlargement policy does not consider the most important dimension of the accession process, namely the involvement of future citizens of the Union. The lack of consultation and discussion around previous enlargements underlines the opacity of enlargement decisionmaking. Conversely, there is a greater need to involve citizens in Member States and promote better governance in candidate States96 where discontent is spreading among the population that has no faith in the EU’s credibility. As hypothesized ‘a deficit of transnational solidarity at the level of citizens springs into scepticism towards further EU enlargement’.97 The need to effectively address situations posing a systemic threat to the rule of law has led to forgetting the various functions of enlargement, making the procedure so complicated that the prospect of accession of the Western Balkans to the EU has become almost a mirage. All this until the war in Ukraine which seems to have changed the perspective by re-launching the strategic importance of EU enlargement. The decision to open negotiations with North Macedonia and Albania and the granting of candidate status to Bosnia and Herzegovina are the awareness of the need to speed up the accession process and the full integration of the Western Balkans.98

References Anderson M (2007) Internal and external security in the EU: is there any longer a distinction? In: Gänzle S, Sens AG (eds) The changing politics of European security: Europe alone? Palgrave, Basingstoke, pp 31–46 Bartoloni ME, Poli S (2021) L’azione esterna dell’Unione europea. Editoriale Scientifica, Napoli Basheska E (2014) The good neighbourliness condition in the EU enlargement. Contemp Southeast Eur 1(1):92–111. www.suedosteuropa.uni-graz.at/cse/en/node/58 Bátora J, Fossum JE (eds) (2019) Towards a segmented European political order: the European Union’s post-crises conundrum. Routledge, Abingdon-New York

93

Noutcheva and Aydin-Düzgit (2012). See Traune (2009). 95 European Commission (6 February 2018) A credible enlargement perspective for and enhanced EU engagement with the Western Balkans, COM(2018) 65 final. 96 Dimitrova and Kortenska (2017). 97 Rusu et al. (2014). 98 See EU-Western Balkans Summit, Tirana Declaration, 6 December 2022. 94

68

T. Russo

Burazer N (2020) Europe and the Balkans: the need for mutual integration. In: Fruscione G (ed) The Balkans: old, new instabilities. A European region looking for its place in the world. Milan, pp 29–47 Chamon M, Govaere I (eds) (2020) EU external relations Post-Lisbon: the law and practice of facultative mixity. Brill Nijhoff, Leiden–Boston Cremona M (1999) Creating the new Europe: the stability pact for South-Eastern Europe in the context of EU-SEE relations. Cambridge Yearb Eur Legal Stud 2:463–506 Cremona M (2004a) The Union as a global actor: roles, models and identity. Common Mark Law Rev 41(2):553–573 Cremona M (2004b) Values in the EU constitution: the external dimension. CDDRL Work Pap 26: 1–26 Cremona M (2017) Enlargement as foreign policy: a research agenda. In: Haakon A, Ikonomou AA, Byberg R (eds) European enlargement across rounds and beyond Borders. Routledge, London, pp 36–56 Damjanovski I, Hillion C, Preshova D (2020) Uniformity and Differentiation in the Fundamentals of EU Membership: The EU Rule of Law Acquis in the Pre- and Post-Accession Contexts. EUIDEA Research Paper 4 (31 May) www.euidea.eu/wp-content/uploads/2020/06/euidea_ rp_4.pdf Dimitrova A, Kortenska E (2017) What do citizens want? And why does it matter? Discourses among citizens as opportunities and constraints for EU enlargement. J Eur Publ Policy 24(2): 259–277 Dimitrova AL (2011) Speeding up or slowing down? Lessons from the last enlargement on the dynamics of enlargement-driven reform. South Eur Soc Polit 16(2):221–233 Douma WT, Eckes C, Van Elsuwege P, Kassoti E, Ott E, Wessel RA (eds) (2021) The evolving nature of EU external relations law. Springer, The Hague Ehrhart H (1999) Prevention and regional security: the Royaumont process and the stabilization of South-Eastern Europe. In: IFSH (ed) OSCE Yearbook 1998. Baden, pp 327–346 Franck C (2006) A major challenge for the EU’s external action: the European apart from the limits of this policy that lack the Prospect of the membership. In Constantine AS (ed) Adjusting to EU enlargement. Recurring issues in a new setting. Edward Publisher, Cheltenham–Northampton, pp 167–177 Fruscione G (2020), After the nineties: a never-ending political transition, In: Fruscione G (ed) The Balkans: old, new instabilities. A European region looking for its place in the world. Milan, pp 11–28 Halmai G (2017) Second-Grade Constitutionalism? The Cases of Hungary and Poland. CSF-SSSUP Working Papers 1 Halmai G (2019) The possibility and desirability of rule of law conditionality. Hague J Rule Law 11(1):171–188 Hillion C (2011) EU enlargement. In: Craig P, de Búrca G (eds) The evolution of EU law. Oxford University Press, Oxford, pp 188–215 Hogić N (2020) The European Union’s rule of law promotion in the Western Balkans: building a rule of law constituency. Croatian Yearb Eur Law Policy 16:198–199 Hughes J, Sasse G, Gordon C (eds) (2004) Europeanization and regionalization in the EU’s enlargement to central and Eastern Europe: the myth of conditionality. Palgrave Macmillan Basingstoke Huszka B (2017) Eurosceptic yet pro-enlargement: the paradoxes of Hungary’s EU policy. Southeast Eur Black Sea Stud 17(4):591–609 Ingravallo I (2019) Considerazioni critiche sulle prospettive di ulteriore allargamento dell’Unione europea. In: AA VV (2019) Temi e questioni di diritto dell’Unione europea. Scritti offerti a Claudia Morviducci. Cacucci Editore, Bari, pp 449–464 Jakovleski V (2010) The logic of E.U. enlargement: exporting stability or inheriting an empire? J Public Int Aff 21(1):23–48

The Security Implications of Enlargement on EU Fundamentals

69

Janse R (2019) Is the European Commission a credible Guardian of the values? A revisionist account of the Copenhagen political criteria during the big bang enlargement. Int J Const Law 17(9):43–65 Kochenov D, Dimitrovs A (2021) Solving the Copenhagen Dilemma: The Repubblika Decision of the European Court of Justice. VerfBlog (28 April). www.verfassungsblog.de/solving-thecopenhagen-dilemma Kochenov D, Pech L (2015) From Bad to Worse? On the Commission and the Council’s Rule of Law Initiatives. VerfBlog (20 January). www.verfassungsblog.de/bad-worse-commissioncouncils-rule-law-initiatives/ Lavenex S (2012) Policy interaction and interconnection. Channels of externalisation of EU justice and home affairs. In Cremona M, Monar J, Poli S (eds) The external dimension of the European Union’s area of freedom, security and justice. Peter Lang, Bruxelles–Bern–Berlin–Frankfurt am Main–New York–Oxford–Wien Lippert B (2017) The Nexus Between Enlargement and Differentiation. IAI, Rome (7 February). www.iai.it/sites/default/files/eu60_2.pdf Louwerse L, Kassoti E (2019) Revisiting the European Commission’s approach towards the rule of law in enlargement. Hague J Rule Law 11(1):223–250 Lutterbeck D (2005) Blurring the dividing line: the convergence of internal and external security in Western Europe. Eur Secur 14(2):231–253 Macchiarini Crosson D (2021) Enlarging the European Defence Union to the Western Balkans. CEPS (22 January). www.ceps.eu/enlarging-the-european-defence-union-to-the-westernbalkans/ Markovic Khaze N, Wang X (2021) Is China’s rising influence in the Western Balkans a threat to European integration? J Contemp Eur Stud 29(2):234–250 Nascimbene B (2021) Il rispetto della rule of law e lo strumento finanziario. La ‘condizionalità’. Rivista.eurojus.it 3:172–183 Noutcheva G, Aydin-Düzgit S (2012) Lost in Europeanisation: the Western Balkans and Turkey. West Eur Polit 35(1):59–78 Ott A, Wessel RA (2006) The EU’s external relations regime: multilevel complexity in an expanding Union. In: Blockman S, Łazowski A (eds) The European Union and its neighbours. A legal appraisal of the EU’s policies of stabilisation, partnership and integration. Asser Press, The Hague, pp 19–60 Panagiotou R (2021) The Western Balkans between Russia and the European Union: perceptions, reality, and impact on enlargement. J Contemp Eur Stud 29(2):219–233 Pech L (2011) Rule of law as a guiding principle of the European Union’s external action. Cleer Working Papers 3 Pech L (2016) The EU as a global rule of law promoter: the consistency and effectiveness challenges. Asia Eur J 14:7–24 Pech L, Grogan J (2020) Meaning and Scope of the EU Rule of Law. Reconnect (30 April) www. reconnect-europe.eu/wp-content/uploads/2020/05/D7.2-1.pdf Petrovic M, Wilson G (2021) Bilateral relations in the Western Balkans as a challenge for EU accession. J Contemp Eur Stud 29(2):201–218 Riddervold M, Sjursen H (2006) The importance of solidarity: Denmark as a promoter of enlargement. In: Sjursen H (ed) Questioning EU enlargement. Europe in search of identity. Routledge, London, pp 81–103 Russo T (2015) Partnership as an instrument of democratization in the EU external action: a look at the Balkans. In: Law between modernization and tradition. Implications for the legal, political, administrative and public order organization. University ‘Titu Maiorescu’ of Bucharest Press, Bucharest, pp 677–688 Russo T (2020) EU-Western Balkans cooperation: is there any model of integration?. In: Russo T, Oriolo A, Dalia G (eds.) EU-Western Balkans cooperation on justice and home affairs essays. ILLYRIUS Special Issue 14(2):313–331

70

T. Russo

Russo T (2021) Quote di ricollocazione e meccanismi di solidarietà: le soluzioni troppo ‘flessibili’ del Patto dell’Unione europea su migrazione e asilo. Freedom Secur Just Eur Legal Stud 2:281– 304 Rusu H, Gheorghiță A, Blaga L (2014) Transnational solidarity and public support for the EU enlargement. Sociológia 46(3):261–282 Scheppele K, Kelemen R (2020) Defending democracy in EU member states: beyond article 7 TEU. In: Bignami F (ed) EU law in populist times: crises and prospects. Cambridge University Press, Cambridge, pp 413–456 Schimmelfennig F (2014) EU enlargement and differentiated integration: discrimination or equal treatment? J Eur Publ Policy 21(5):681–698 Schimmelfennig F, Sedelmeier U (eds) (2005) The Europeanisation of Central and Eastern Europe. Cornell University Press Schneider C (2008) A rationalist puzzle of EU enlargement? In: Schneider CJ (ed) Conflict, negotiation and European Union enlargement. Cambridge University Press, Cambridge, pp 33–54 Sjursen H (ed) (2006) Questioning EU enlargement. Europe in search of identity. Routledge, New York Sjursen H (2012) A certain sense of Europe. Defining the EU through enlargement. Eur Soc 14(4): 502–521 Sotiris Walldén A (2017) The Demise of EU Enlargement Policy. www.eliamep.gr/wp-content/ uploads/2017/03/Enlargement-policy-1701-fin.pdf Timmermans F (2015) The European Union and the rule of law. Keynote Speech at Conference on the Rule of Law (31 August) Traune F (2009) Deconstructing the EU’s routes of influence in justice and home affairs in the Western Balkans. J Eur Integr 31(1):65–82 Tulmets E (2007) Policy adaptation from the enlargement to the neighbourhood policy: a way to improve the EU’s external capabilities? Politique européenne 22(2):55–80 Whitam RG, Wolff S (eds) (2010) The European neighbourhood policy in perspective. Context, implementation and impact. Palgrave Macmillan, New York Wouters J (2020) Revisiting Art. 2 TEU: a true Union of values? Eur Pap 5(1):255–277 Wouters J, Hoffmeister J, De Baere G, Ramopoulos T (eds) (2021) The law of EU external relations: cases, materials, and commentary on the EU as an international legal actor, 3rd edn. Oxford University Press, Oxford Zaborowski M (2006) More than simply expanding markets. Germany and EU enlargement. In: Sjursen H (ed) Questioning EU enlargement. Europe in search of identity. Routledge, London, p 104

Teresa Russo is Ph.D., Associate Professor of European Union Law, Lecturer of International Law, International Organizations, EU Migration Law, International Law and Cyber Security (University of Salerno); Holder of the 2022–2025 Jean Monnet Chair ‘Promoting Public Awareness on Enlargement Policy, EU Values and Western Balkans’ Accession’ (EUVALWEB); Scientific Coordinator of the 2019–2022 Jean Monnet Module ‘EU-Western Balkans Cooperation on Justice and Home Affairs’ (EUWEB), University of Salerno; Key Teaching Member of the 2019–2022 Jean Monnet Module ‘Solidarity in EU Law’ (SoEULaw); of the 2022–2025 Jean Monnet Chair ‘Reinforcing EU Responsible Global Leadership: Promoting Human Rights and Democracy Through Solidarity for a Rules-Based Multilateral World’ (ProSoEULaw Abroad), University of Pisa, both coordinated by Prof. Leonardo Pasquali; and of the 2022–2025 Jean Monnet Module ‘Democracy and the Rule of Law in the EU: a New Push for European Values’ (EU-DRAW), coordinated by Prof. Rossana Palladino. She is Scientific Coordinator of the ICM Project with Albanian Universities, co-funded three times by the European Commission’s Erasmus+ Programme – Key Action 1 with Partner States. She was bestowed of the Jubilee Diploma by the Rector, the Presidents of Senate and Board of Directors at the University ‘Titu Maiorescu’ of

The Security Implications of Enlargement on EU Fundamentals

71

Bucharest on 23 April 2015. She has been invited as a visiting professor at several foreign universities and as a speaker in several international conferences. Teresa Russo is the Director-in-Chief of the online Scientific Journal EUWEB Legal Essays. Global & International Perspectives and the Director of the EUVALWEB Legal Observatory; Member of the Scientific-Technical Committee of the Observatory on European Area of Freedom, Security and Justice, Department of Legal Sciences, University of Salerno; Editorial Board’s Member of La Comunità internazionale (The International Community) of the Italian Society for international Organization (SIOI), Rome, Italy; Member of the Referee Committee of the online Journal Freedom, Security and Justice: European Legal Studies; Scientific Board’s Member of the Review OPTIME of the Albanian University of Tirana, Albania.

Part II

Solidarity and Rule of Law in Cross-Border Security, Migration and Asylum Management

The Commission Tries Again to Reform the Dublin System: Much Ado About Nothing? Francesco Cherubini

Abstract Since its introduction, in the few articles of the Convention implementing the Schengen Agreement, (what would later become) the Dublin System has marked the cooperation of European States in the field of asylum, first outside and then within the Community. With the tools provided by the Treaty of Amsterdam, EC institutions further developed this System, amending it a few times up to its current version, adopted with the new legal basis introduced by the Treaty of Lisbon, i.e., Article 78 of the Treaty on the Functioning of the European Union. The System, which was not initially designed to cope with the massive migratory flows that would affect the Union in subsequent years, is among the most criticized ‘products’ of European law. Judged as profoundly unfair by the (Mediterranean) States of first entry, unspeakable by many Eastern European countries (especially those belonging to the Visegrád Group), and barely tolerated by States of last destination, it is difficult to find a Union act with a worse reputation than the Dublin Regulation in its different versions. This chapter investigates the reasons for this failure from the perspective of the European Commission’s new and recent attempt to modify the Dublin System.

1 Introduction The idea of European burden-sharing in the management of asylum seekers is closely linked to the objective of completing the common market. This aim was pursued (also) with the abolition of internal border checks, operated, outside the EU, by the Schengen Agreement (1985) and its implementing Convention (1990). At the same time, the abolition of these checks determined the creation of a common external border, calling for a system that clearly identified the State that, at least in the common Schengen Area, should take charge of asylum applications. The concern of States party to the Schengen Area was that asylum seekers, abusing the F. Cherubini (✉) Department of Political Science, LUISS ‘Guido Carli’, Rome, Italy e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 T. Russo et al. (eds.), Solidarity and Rule of Law, European Union and its Neighbours in a Globalized World 9, https://doi.org/10.1007/978-3-031-29227-9_5

75

76

F. Cherubini

shift in controls to the common external border, would end up moving freely within the Area, repeatedly submitting their applications until finding a more benevolent State. In a word, the fear was founded on so-called secondary movements or ‘asylum shopping’. The solution to this problem has gone through the recent history of European cooperation in various stages: first, with the Convention implementing the Schengen Agreement; then, with the Dublin Convention, which in the same year (1990) extended the system of burden-sharing to some States wishing to participate only in this and not in the abolition of internal checks and other forms of cooperation provided by the Schengen System; finally, with the Treaty of Amsterdam,1 which brought this form of cooperation within the European Union, providing the institutions with the legal basis that would later serve to develop it with the adoption of, amongst other things, the Dublin II2 and Dublin III Regulations.3

2 The Beginnings The Convention implementing the Schengen Agreement devoted its entire seventh chapter (‘Responsibility for processing applications for asylum’, Articles 28–38) to cooperation in these matters. In particular, for the reasons mentioned above, Article 30 of the Convention provided the criteria for the identification of the State responsible for examining the applications. It prioritized the criterion of the applicant’s proximity to the State issuing the visa, or failing that, to the State that had granted first entry. The latter,4 provided for in point (e), is the notorious criterion of first illegal entry, which would persist, amidst many problems, until the current version of the Dublin Regulation. The Convention, as an external instrument, would apply, together with the whole Schengen acquis, until entry into force of the Treaty of Amsterdam, and indeed beyond.5 The ‘communitarized’ rules were then gradually 1

2 October 1997, entered into force on 1 May 1999. Council Regulation (EC) No 343/2003 (18 February 2003) establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national, O.J. L 50/1. 3 Regulation (EU) No 604/2013 of the European Parliament and of the Council (26 June 2013) establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person, O.J. L 180/131. 4 ‘If the asylum seeker has entered the territory of the Contracting Parties without being in possession of one or more documents [. . .] authorising the crossing of the border, the Contracting Party across whose external borders the asylum seeker entered the territories of the Contracting Parties shall be responsible’. 5 It should be borne in mind that some of the rules of the Convention still apply as international law (i.e., outside EU law) to relations between the Schengen States and Denmark: this is laid down in Protocol No 22 to the Treaties, read in the light of its earlier version annexed to the Treaty of Amsterdam. 2

The Commission Tries Again to Reform the Dublin System: Much Ado. . .

77

replaced or amended by the developments of the Schengen System, now part of EU law.6 Asylum rules were the first to cease to apply as a result of the Dublin Convention. Articles 28–38 of the implementing Convention (entered into force for only a few States7 on 26 March 1995) would only last until 1 September 1997.8 From a substantive point of view, the Dublin Convention replicates the reasoning of the implementing Convention, including maintaining the rule of the country of first illegal entry,9 introducing only a timid novelty on the issue of family reunification.10 For the first time, there was also a hint of solidarity—one of the most controversial principles in the current debate on the reform of the Dublin System. A very general clue can be found in Article 17(1) of the Dublin Convention, according to which ‘[i]f a Member State experiences major difficulties as a result of a substantial change in the circumstances obtaining on conclusion of this Convention, the State in question may bring the matter before the Committee referred to in Article 18 so that the latter may put to the Member States measures to deal with the situation or adopt such revisions or amendments to this Convention as appear necessary, which shall enter into force as provided for in Article 16(3)’. However, these were clearly far from permanent and systemic forms of solidarity. Some stronger methods of asylum solidarity were achieved after entry into force of the Maastricht Treaty (1993) where asylum policy became part of the Union’s soft competences (the Third Pillar, ‘Justice and Home Affairs’), without producing particularly significant results. Following the Resolution of 25 September 1995,11 the Council adopted Decision 96/198/JHA12 allowing Member States to convene a

6

Unfortunately, there is no consolidated version of the Convention. These should be the provisions still into force, as EU rules: Arts. 1, 19, 26, 39, 41–46, 48, 51, 54–58, 67–69, 71–72, 75, 76, 82, 91, 126–130, and 138; while Arts. 18–24, 40, 47 and 49 were amended. 7 Belgium, France, Germany, Luxembourg, Netherlands, Portugal and Spain. These two latter States acceded to the Schengen Agreements with the Bonn Convention (25 June 1991). 8 As the Dublin Convention had the same scope as Arts. 28–38 of the implementing Convention and not all the States parties to the first were also parties to the second, a Protocol was signed in Bonn (26 April 1995) establishing that the relevant provisions of the Convention would be replaced by those of the Dublin Convention as soon as it came into force. 9 Art. 6 reads: ‘When it can be proved that an applicant for asylum has irregularly crossed the border into a Member State by land, sea or air, having come from a non-member State of the European Communities, the Member State this entered shall be responsible for examining the application for asylum. That State shall cease to be responsible, however, if it is proved that the applicant has been living in the Member State where the application for asylum was made at least six months before making his application for asylum. In that case it is the latter Member State which is responsible for examining the application for asylum’. 10 See Art. 4. 11 Council Resolution (25 September 1995) on burden-sharing with regard to the admission and residence of displaced persons on a temporary basis, O.J. C 262/1. 12 Council Decision 96/198/JHA (4 March 1996) on an alert and emergency procedure for burden sharing with regard to the admission and residence of displaced persons on a temporary basis, O.J. L 63/10.

78

F. Cherubini

meeting of the Coordinating Committee referred to in Article K.4 TEU. According to the indications provided by each Member State, the Committee would draw up a burden-sharing proposal to be submitted to the Council for approval. However, it was not until later that the Council approved a number of proposals for directly financing the costs of receiving displaced persons, for measures to cover educational facilities for persons under 18 years of age, vocational training, information on the economic and administrative set-up in their country of origin aimed at assisting reintegration into their country, projects developed in connection with the twinning of local administrative areas, and aid to transport.13

3 The Copernican Revolution The shift in competences on asylum and immigration brought about by the Amsterdam Treaty has rightly been called a Copernican revolution:14 with it, the matters in question were moved to EC/EU law and all the achievements of intergovernmental cooperation ‘internalized’ therein. All or almost all: the Dublin System (in fact, the Convention of the same name) remained outside EU law, waiting for the new competences to be exercised. This would soon happen: already in 2003, the Council adopted Dublin II Regulation15 whereby the Dublin Convention ceased to apply.16 The broader scope of the Union’s new competences was clear in the wording of Article 63(1) TEC,17 which not only included a legal basis for the Dublin rules in the strict sense, but also extended the System to cover the conditions for their application. In fact, the pre-Amsterdam Dublin System offered a single response to asylum 13

Joint Action 97/477/JHA adopted by the Council on the basis of Art. K.3 of the Treaty on European Union (22 July 1997) concerning the financing of specific projects in favour of displaced persons who have found temporary protection in the Member States and asylum-seekers, O.J. L 205/3. 14 Hailbronner (1998), p. 1047. 15 See supra, footnote 2. 16 See Art. 24 of Dublin II Regulation. The development of a Dublin System within the EU, however, has led to the adoption of a complex system of adjustment measures. Some States parties to the Dublin Convention were in very different positions vis-à-vis the Regulation that replaced it: either because they were not members of the EU (Iceland, Liechtenstein, Norway, Switzerland), or because they were members of the EU (self-)excluded from the asylum policy area (Denmark, Ireland, United Kingdom). On this point, we take the liberty of referring the reader, where necessary, to Cherubini (2016), pp. 151–159. 17 ‘The Council [. . .] shall [. . .] adopt: 1. measures on asylum, in accordance with the Geneva Convention of 28 July 1951 and the Protocol of 31 January 1967 relating to the status of refugees and other relevant treaties, within the following areas: (a) criteria and mechanisms for determining which Member State is responsible for considering an application for asylum submitted by a national of a third country in one of the Member States, (b) minimum standards on the reception of asylum seekers in Member States, (c) minimum standards with respect to the qualification of nationals of third countries as refugees, (d) minimum standards on procedures in Member States for granting or withdrawing refugee status [. . .]’.

The Commission Tries Again to Reform the Dublin System: Much Ado. . .

79

applications (that of the Member State responsible based on known criteria), implicitly assuming a certain degree of uniformity of national asylum systems. But this uniformity was clearly almost non-existent, since the only elements capable of ‘tightening the ranks’ were quite distant from national systems and therefore unable to provide an acceptable degree of uniformity.18 In this way, the Dublin System was embedded in the wider Common European Asylum System (CEAS). The post-Amsterdam Package was adopted over the following five years19 and included (in addition to the aforementioned Dublin II Regulation):20 the Eurodac Regulation;21 the Reception Directive;22 the Family Reunification Directive;23 the Long-term Residents Directive;24 and the Qualification Directive.25 In addition, two measures were added in the same period that constituted the exercise of the new competence in the field of solidarity:26 the Temporary Protection Directive,27 which in any case was never applied; and the European Refugee Fund.28 It was only in 18

The 1951 Refugee Convention and its 1967 Protocol, obviously, and, to a certain extent, the European Convention of Human Rights and the case-law of its own Court of Strasbourg. 19 The same Art. 63 TEC gave to the Council this deadline. 20 See supra, footnote 2. 21 Council Regulation (EC) No. 2725/2000 (11 December 2000) concerning the establishment of ‘Eurodac’ for the comparison of fingerprints for the effective application of the Dublin Convention, O.J. L 316/1. 22 Council Directive 2003/9/EC (27 January 2003) laying down minimum standards for the reception of asylum-seekers, OJ L 31/18. 23 Council Directive 2003/86/EC (22 September 2003) on the right to family reunification, O.J. L 251/12. 24 Council Directive 2003/109/EC (25 November 2003) concerning the status of third-country nationals who are long-term residents, OJ L 16/44. 25 Council Directive 2004/83/EC (29 April 2004) on minimum standards for the qualification and status of third-country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection grants, O.J. L 304/12. 26 Art. 63(2) TEC: ‘[. . .] measures on refugees and displaced persons within the following areas: (a) minimum standards for giving temporary protection to displaced persons from third countries who cannot return to their country of origin and for persons who otherwise need international protection, (b) promoting a balance of effort between Member States in receiving and bearing the consequences of receiving refugees and displaced persons [. . .]’. The Treaty of Amsterdam introduced a stronger basis of solidarity, which anyway the institutions never applied, Art. 64(2) TEC: ‘In the event of one or more Member States being confronted with an emergency situation characterised by a sudden inflow of nationals of third countries [. . .], the Council may, acting by qualified majority on a proposal from the Commission, adopt provisional measures of a duration not exceeding six months for the benefit of the Member States concerned’. 27 Council Directive 2001/55/EC (20 July 2001) on minimum standards for giving temporary protection in the event of a mass influx of displaced persons and on measures promoting a balance of efforts between Member States in receiving such persons and bearing the consequences thereof, O.J. L 212/12. 28 Established for the period 2000–2004 by Council Decision 2000/596/EC (28 September 2000); renewed for the period 2005–2010 by Council Decision 2004/904/EC (2 December 2004). The Fund was moved into a larger framework (the General programme ‘Solidarity and Management of Migration Flows’) already in 2008, and until 2013, by Decision No 573/2007/EC of the European

80

F. Cherubini

2005 that the picture would be completed with the adoption of the Procedures Directive, after (more) complicated negotiations.29 However, the Dublin II Regulation did not change the rationale of the System, but rather confirmed it.30 In the meantime, the scale of migration flows to Europe was beginning to change. Asylum applications, which in 1985—the year the Schengen Agreement was signed—were fewer than 250,000, rose to just below 700,000 immediately after the fall of the Berlin Wall, then stabilized at around 400,000 before the outbreak of the Syrian conflict.31 The few years in which the Dublin System was in force and the not particularly high number of migrants provided the Commission with the elements, after the amendment of competencies in the area of asylum introduced by the Lisbon Treaty (2009),32 to formulate new proposals to reform the System. In truth, a maquillage,

Parliament and of the Council (23 May 2007). The measure de qua has been renewed (2014–2020) and amended by Regulation (EU) No 516/2014 of the European Parliament and of the Council (16 April 2014) establishing the Asylum, Migration and Integration Fund, amending Council Decision 2008/381/EC and repealing Decisions No 573/2007/EC and No 575/2007/EC of the European Parliament and of the Council and Council Decision 2007/435/EC, O.J. L 150/168; and, again (2021–2027), by Regulation (EU) 2021/1147 of the European Parliament and of the Council (7 July 2021) establishing the Asylum, Migration and Integration Fund, O.J. L 251/1. 29 Council Directive 2005/85/EC (1 December 2005) on minimum standards on procedures in Member States for granting and withdrawing refugee status, O.J. L 326/13. 30 Arts. 6-8 again privileged the family reunification, Art. 9 the precedent link with a MS. Art. 10 reiterated the country of first illegal entry criterion, which was reinforced by the provision of the obligation, on the part of the States, to take fingerprints of the irregular migrant and enter them into the database created by the Eurodac Regulation, so that any other Member State could have certain evidence of irregular entry and, therefore, more effectively apply the criterion in question. 31 Pew Research Center (2 August 2016) ‘Number of Refugees to Europe Surges to Record 1.3 Million in 2015’, available online. 32 Art. 78 TFEU: ‘1. The Union shall develop a common policy on asylum, subsidiary protection and temporary protection with a view to offering appropriate status to any third-country national requiring international protection and ensuring compliance with the principle of non-refoulement. This policy must be in accordance with the Geneva Convention of 28 July 1951 and the Protocol of 31 January 1967 relating to the status of refugees, and other relevant treaties. 2. For the purposes of paragraph 1, the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, shall adopt measures for a common European asylum system comprising: (a) a uniform status of asylum for nationals of third countries, valid throughout the Union; (b) a uniform status of subsidiary protection for nationals of third countries who, without obtaining European asylum, are in need of international protection; (c) a common system of temporary protection for displaced persons in the event of a massive inflow; (d) common procedures for the granting and withdrawing of uniform asylum or subsidiary protection status; (e) criteria and mechanisms for determining which Member State is responsible for considering an application for asylum or subsidiary protection; (f) standards concerning the conditions for the reception of applicants for asylum or subsidiary protection; (g) partnership and cooperation with third countries for the purpose of managing inflows of people applying for asylum or subsidiary or temporary protection’. Art. 78 also has a para. 3, which represents the evolution of the then Art. 64(2) TEC (see supra, footnote 26): ‘In the event of one or more Member States being confronted by an emergency situation characterised by a sudden inflow of nationals of third countries, the Council, on a proposal

The Commission Tries Again to Reform the Dublin System: Much Ado. . .

81

suggested mainly by the judiciary application of the rules of the first Asylum Package.

4 The Quiet Consolidation Institutions renewed almost all the measures of the first Package,33 including the Dublin II Regulation.34 The new system introduced with the Dublin III Regulation made significant changes to the rules, particularly in light of the judicial cases they gave rise to, yet without removing the country of first illegal entry criterion. The main problem stemmed from the presumption of the safety of the Member State of destination: while the Dublin II Regulation exonerated the Member State where the first application was lodged from the duty to examine it, the 1951 Geneva Refugee Convention and the consolidated case law of the European Court of Human Rights imposed independent and individual assessments. In handing over the applicant to the responsible Member State, the sending Member State was not required to check whether it observed the principle of non-refoulement. And yet, the destination Member State might well be a place of risk, and the applicant might be in danger of torture, persecution, or being in turn sent on to a third country where he or she would be at risk (so-called indirect refoulement). Both the European Court of Justice and to some extent the European Court of Human Rights were called to give an opinion on this point, although the outcomes were as expected and virtually identical. Both cited the sovereignty clause, then enshrined in Article 3(2) of the Dublin II Regulation, whereby the Member State in which the application was lodged was entitled to examine it in derogation of the known criteria. Both Courts correctly deduced from this that Member States have discretionary power to determine the State responsible for examining the application.

from the Commission, may adopt provisional measures for the benefit of the Member State (s) concerned. It shall act after consulting the European Parliament’. 33 Directive 2011/95/EU of the European Parliament and of the Council (13 December 2011) on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted (recast), O.J. L 337/9; Directive 2013/32/ EU of the European Parliament and of the Council (26 June 2013) on common procedures for granting and withdrawing international protection, O.J. L 180/60; Directive 2013/33/EU of the European Parliament and of the Council (26 June 2013) laying down standards for the reception of applicants for international protection (recast), O.J. L 180/60. The Family Reunification Directive was not modified, while the Long-term Residents Directive was extended by Directive 2011/51/EU of the European Parliament and of the Council (11 May 2011) to all beneficiaries of international protection (in the first version, beneficiaries of subsidiary protection were excluded). The original Eurodac Regulation was also (repealed and) replaced by Regulation (EU) No 603/2013 of the European Parliament and of the Council (26 June 2013) on the establishment of ‘Eurodac’, O.J. L 180/1. 34 Replaced by Regulation (EU) No 604/2013, supra footnote 3.

82

F. Cherubini

The Dublin II Regulation did not impose an absolute obligation to deliver the applicant to the Member State, allowing the option of exercising the sovereignty clause that enabled Member States to implement it in accordance with basic rights, including those enshrined in the European Convention of Human Rights. Examining the actions of Belgium that, following the criteria mentioned, had sent an asylum applicant to Greece, the European Court of Human Rights ruled out the relevance of the Dublin II Regulation.35 Similarly, in a later case, the European Court of Justice held that the same Regulation did not contain an irrefutable presumption about the safety of the country (of destination) responsible for examining the application.36 The way the Dublin III Regulation is formulated reflects this, particularly the sovereignty clause, which appears to reprise the words of the European Court of Justice. According to the new Article 3, ‘Where it is impossible to transfer an applicant to the Member State primarily designated as responsible because there are substantial grounds for believing that there are systemic flaws in the asylum procedure and in the reception conditions for applicants in that Member State, resulting in a risk of inhuman or degrading treatment within the meaning of Article 4 of the Charter of Fundamental Rights of the European Union, the determining Member State shall continue to examine the criteria set out in Chapter III in order to establish whether another Member State can be designated as responsible’. Once the Member State has been designated as responsible, the next step is to verify, according to the usual rules based on the application of the Refugee Convention and the European Convention of Human Rights, whether the applicant’s transfer violates the principle of non-refoulement as enshrined in the two acts. In the case in point, the European Court of Human Rights had little difficulty deciding that Greece was a country of risk, there being insufficient guarantees either of access to asylum procedures or that the applicant would not be transferred to a third country where he or she would be at risk of persecution.37 Similar concepts have been expressed by the European Court of Justice, although perhaps because it is keener

35 Its reason for doing so was that ‘under the Regulation, the Belgian authorities could have refrained from transferring the applicant if they had considered that the receiving country, namely Greece, was not fulfilling its obligations under the Convention. Consequently, the Court considers that the impugned measure taken by the Belgian authorities did not strictly fall within Belgium’s international legal obligations’: see European Court of Human Rights (Grand Chamber), Judgment (21 January 2011), M. S. S. v. Belgium and Greece, para. 340. 36 After asserting that an EU Member State may not be safe, the Court imposed on Member States the obligation to ‘not transfer an asylum seeker to the “Member State responsible” within the meaning of Regulation No 343/2003 where they cannot be unaware that systemic deficiencies in the asylum procedure and in the reception conditions of asylum seekers in that Member State amount to substantial grounds for believing that the asylum seeker would face a real risk of being subjected to inhuman or degrading treatment within the meaning of Article 4 of the Charter’: see European Court of Justice (Grand Chamber), Judgment (21 December 2011), Joined Cases C-411/10 and C-493/10, N. S. v. Secretary of State for the Home Department and M. E. and others v. Refugee Applications Commissioner and Minister for Justice, Equality and Law Reform, para. 81. 37 M. S. S., cit., para. 344 ff.

The Commission Tries Again to Reform the Dublin System: Much Ado. . .

83

to safeguard the interests of the EU, it clarified that violations that an applicant might suffer in the Member State of destination (the one responsible for examining the application under Dublin II, now Dublin III) do not concern every rule of the CEAS, only where ‘there are substantial grounds for believing that there are systemic flaws in the asylum procedure and reception conditions for asylum applicants in the Member State responsible, resulting in inhuman or degrading treatment’.38 Perhaps the most interesting aspect to emerge from the European Court of Human Rights ruling is that one of the arguments Belgium used in its defense was the failure to exhaust all possible internal remedies. The Court held that these remedies were not efficient and effective, thus absolving the applicant from the obligation to exhaust them before bringing the case, further recognizing that there had been a violation of Article 13 ECHR taken in conjunction with Article 3 ECHR.39 This was an extremely important ruling because it was linked to the fact that the old Procedures Directive did not place any obligation on Member States to guarantee effective means of challenging the decision to transfer the applicant to the country determined according to the Dublin II criteria. Article 39 of the Procedures Directive did lay down the right to an effective remedy, but only against a decision that the application was unfounded, leaving aside the case where it was not examined in compliance with the Dublin II Regulation. Dublin III introduced Article 27, obligating Member States to recognize the applicant’s right ‘to an effective remedy, in the form of an appeal or a review, in fact and in law, against a transfer decision, before a court or tribunal’. In any case, while the institutions were adjusting the focus of the CEAS, including the Dublin System, and strengthening cooperation,40 something was about to upset the plans.

5 The Storm Illegal entries surged considerably in 2015,41 and given that such entries almost always result in new applications for international protection, the latter also increased exponentially.42 The main reason was the dramatic development of the Syrian conflict. In 2008 and 2009, fewer than half the illegal entries concerned Albanians and Afghans, and Syrians were not even in the top ten.43 In 2010 and

38

N. S., cit., para. 86. M. S. S., cit., para. 335. 40 See Regulation (EU) No 439/2010 of the European Parliament and of the Council (19 May 2010) establishing a European Asylum Support Office, O.J. L 132/11. 41 1,822,17 illegal entries, while only in 2013 and 2014 were, respectively, 107,365 and 282,933. See FRONTEX (2017) Annual Risk Analysis 2017, available online, p. 47. 42 1,282,690 in 2015, less than a half in 2014 (400.515). See EUROSTAT (2021) Asylum and first time asylum applicants—annual aggregated data (rounded), available online. 43 FRONTEX (2011) Annual Risk Analysis 2011, available online, p. 56. 39

84

F. Cherubini

2011, Syrians accounted for just around 1% of illegal entries, which became 10% in 2012.44 In 2013 and 2014, the number increased to more than 20%, reaching over 30% in 2015 (and perhaps even twice as many, if we consider that for another 30% of illegal entries it was not possible to establish nationality).45 In 2020, after the wave of Syrian refugees had almost dried up (less than 20% of the total), the level of illegal entries returned to that of ten years earlier.46 Faced with this unprecedented impact, the Dublin System reacted in a more than harried way. The key lays in two very indicative elements, two clues that had already appeared before the storm: the incidents at sea and the systemic violation of the Eurodac Regulation. The first is indicative of the unwillingness of EU Member States to shoulder the burden of sea rescues, because in the absence of pre-established redistribution criteria, responsibility for examining the application (with all that this entails in terms of reception, in the short and possibly long term) always lies with the State of rescue. Northern European States that have mountains and forests between their external borders and irregular flows, or the much more powerful visa requirement (an impassable wall for air travel)47 do not have this concern. Those in the South, divided from third transit countries by ‘just’ the sea, are the only (albeit highly risky) possibility of escape. Paradigmatic of this lack of solidarity, or perhaps even planning, is the incident that occurred at the end of March 2011 in the Mediterranean, where, amid general indifference, 63 migrants, including 20 women and 3 children, died of starvation before the vessel was swept away by the currents to the Libyan coast from where it had departed. The second element explains the eloquent data48 on the degree of uniformity of the system: the countries of first illegal entry, mainly those of Southern Europe, for

44

FRONTEX (2013) Annual Risk Analysis 2013, available online, p. 66. FRONTEX (2016) Annual Risk Analysis 2016, available online, p. 63. 46 FRONTEX (2020) Annual Risk Analysis 2020, available online, p. 50. 47 This is a typical non-arrival measure, strengthened by the rule, provided by Art. 26 of the Convention implementing the Schengen Agreement and still in force (see supra, footnote 6), which requires carriers (i.e., any physical or legal entity professionally transporting persons by air, sea or land) to make sure that the persons carried have the necessary documents for entry into a Member State, including the visa, which is almost always necessary for people leaving from the Global South. The obligation is also reinforced by additional elements, above all an undertaking on the part of States to impose ‘penalties on carriers which transport aliens who do not possess the necessary travel documents’. Carriers are also required to file data on the persons transported (see Council Directive 2004/82/EC (29 April 2004) on the obligation of carriers to communicate passenger data, O.J. 261/24) and ‘immediately to assume responsibility for’ the foreign national transported by them who has been refused entry (Art. 26(1)(a) of the Convention implementing the Schengen Agreement as supplemented by Council Directive 2001/51/EC (28 June 2001) supplementing the provisions of Article 26 of the Convention implementing the Schengen Agreement of 14 June), O.J. L 187/45. 48 See Clante Bendixen (2018). In 2015, for example, an application lodged by an Afghan citizen had 69% of chances of rejection in Denmark, 27% in Germany, 52% in Sweden. For an Iraqi citizen the percentages were, respectively, 76, 2 and 63. 45

The Commission Tries Again to Reform the Dublin System: Much Ado. . .

85

the reasons clarified above, have for years facilitated secondary movements, bypassing the obligation to fingerprint irregularly entering migrants. This is a typical win-win situation: the country of first illegal entry has no interest in leaving in Eurodac the trace that will oblige it to take back the asylum seeker, while the latter has no interest in staying, having other preferred destinations (further North). And this is precisely the point: secondary movements are the consequence of the persistent lack of uniformity in the System that has never worked because, as correctly pointed out, it puts ‘the cart before the horse’:49 speaking seemingly with one voice, but behind which each national asylum system (from success rates of asylum applications to reception and integration conditions) functions almost independently. In the end, the combination of the country of first illegal entry criterion and the strong lack of homogeneity of national asylum approaches have rendered the Dublin System incapable of providing a fair and human-rights oriented response to the increasing flows of irregular migrants to Europe.50 This is the reason why the Commission launched new proposals, some of which aimed at dealing promptly with the emergency, others at a deeper reform of the System.

6 The Emergency The Commission, whose President in November 2014 had become Jean-Claude Juncker, entrusted the immediate response to the emergency to two proposals that would later become Council decisions. These famous decisions, adopted in September 2015, were intended to relieve a few Member States of first illegal entry (Greece, Hungary, and Italy) from the enormous pressure caused by the increased scale of migration flows. After Hungary’s renunciation, the two decisions benefited only Greece and Italy, but operating in quite different ways. The first decision51 established the relocation of 40,000 applicants redistributed according to an agreement reached in the European Council that left out some States unwilling to participate.52 In addition to the numerical limit, objectively inadequate to ease the burden of the two States concerned,53 the decision applied only to

49

O’Nions (2014), p. 131. Fullerton (2016), p. 63, where the CEAS is considered ‘an illusion’. 51 Council Decision (EU) 2015/1523 (14 September 2015) establishing provisional measures in the area of international protection for the benefit of Italy and of Greece, O.J. L 239/146. 52 See Draft Minutes of 3405th meeting of the Council of the European Union (JHA) held in Brussels (20 July 2015), and especially the statements of Austria and Hungary. The statements of the States participating in the relocation project are also indicative of the climate in which this decision was taken: for contrasting examples, see those of the Czech Republic and Italy. 53 At Recital No. 21, the decision underlines that the number consists of approximately 40% of the ‘of the total number of third-country nationals in clear need of international protection who have entered irregularly in Italy or Greece in 2014’. The percentage, however, is calculated on the wrong factor. As mentioned, because of the clear discrimination inherent in the criterion of the country of 50

86

F. Cherubini

applicants ‘belonging to a nationality for which the proportion of decisions granting international protection among decisions taken at first instance [. . .] is, according to the latest available updated quarterly Union-wide average Eurostat data, 75% or higher’.54 The second decision55 aimed to increase the number of relocations by adding another 120,000. While the ‘qualitative’ range of applicants remained the same,56 the formula changed radically, moving from a voluntary mechanism (that of the previous decision)57 to a compulsory one, which clearly displeased those Member States that had previously expressed opposition to or at the very least perplexity with the imagined solution.58 The premises were evidently only the prologue of what was to come. The implementation of the relocation measures was rather disappointing: according to the Commission, ‘[i]n total, almost 27,700 people have now been relocated as of 4 September 2017 (19,244 from Greece and 8,451 from Italy)’,59 that is to say, 1.7% and 1.3% of irregular entries, and 14.5% and 2.1% of applications, respectively for Greece and Italy. Both decisions ceased to apply in September 2017. And that was not all. Some of the States that had voted against the adoption of the second decision challenged it before the Court of Justice, putting forward a total of sixteen grounds, some of which supported by a third intervening State (a member of the Visegrád Group, to which the two applicant States also belong). The Court not only dismissed the applications, but used particularly severe words in some

first illegal entry, frontline States favoured secondary movements, by simply disapplying the Eurodac Regulation. The most evident proof is in the numbers: considering that an irregular entry will almost always turn into an asylum application, while 50,834 irregular immigrants passed through the Greek route in 2014, Greece received only 9,430 applications; in Italy the ratio was 170,664 irregular entries for 64,625 applications. This means that the weight that these States would have had to bear, had the Eurodac Regulation been respected, was equal to (or slightly lower than) the number of irregular entries, and not the number of actual protection requests. The figures, moreover, will rise considerably in 2015, making the estimated number of 40.000 equal to just under 4% of irregular entries. Data are taken from FRONTEX, Annual Risk Analysis 2016, available online, p. 16; and EUROSTAT, Asylum and first time asylum applicants—annual aggregated data (rounded), available online. 54 See Art. 3(2). 55 Council Decision (EU) 2015/1601 (22 September 2015) establishing provisional measures in the area of international protection for the benefit of Italy and Greece, O.J. L 248/80. 56 According to Art. 3(2), applicants ‘belonging to a nationality for which the proportion of decisions granting international protection among decisions taken at first instance on applications for international protection [. . .] is, according to the latest available updated quarterly Union-wide average Eurostat data, 75% or higher’. 57 See the statement of the Commission in the Draft Minutes of 3408th meeting of the Council of the European Union (JHA) held in Brussels (14 September 2015). 58 See the Draft Minutes of 3411th meeting of the Council of the European Union (JHA) held in Brussels (22 September 2015). The decision was adopted by qualified majority. The Czech Republic, Hungary, Romania and Slovakia voted against; Finland abstained. 59 Report from the Commission to the European Parliament, the European Council and the Council (6 September 2017) Fifteenth report on relocation and resettlement, COM(2017) 465 final, para. 1.

The Commission Tries Again to Reform the Dublin System: Much Ado. . .

87

passages, hardly concealing a serious degree of disappointment with the conduct of the States concerned. Particularly significant was the response to an argument presented by Poland, which the Court rejected without contenting itself with declaring it inadmissible. Said State criticized ‘the allegedly disproportionate effects of those quotas on a number of host Member States which . . . have to make far greater efforts and bear far heavier burdens than other host Member States. That is said to be the case of Member States which are “virtually ethnically homogeneous, like Poland” and whose populations are different, from a cultural and linguistic point of view, from the migrants to be relocated on their territory’.60 According to the Court, ‘considerations relating to the ethnic origin of applicants for international protection cannot be taken into account since they are clearly contrary to EU law and, in particular, to Article 21 of the Charter of Fundamental Rights of the European Union’.61 Ironically, the Court would have the opportunity to condemn some Member States, part of the Visegrád Group, precisely for having violated this decision.62 However, the Union and its Members pursued a much more efficient way to reduce migratory flows and thus ‘overcome’ the emergency. The choice fell on a policy that had long been known but was considerably strengthened with undeniably successful results, the so-called ‘outsourcing migration’, an almost blank check that the Union and its Members sign to the benefit of third countries of last transit: wellknown examples are the cooperation developed since the EU-Turkey ‘Statement’ and the even more dated Italian-Libyan one. The literature has pointed out that these choices are contrary to international law, particularly the rules protecting fundamental rights.63 This time, the Court of Justice of the European Union failed to note the conflict, again with a certain degree of irony: the applications lodged against the Statement were dismissed as inadmissible by the General Court, since the act in question was not attributable to the Union.64 The European Court of Justice, called upon to pronounce on the appeal against the General Court’s orders, laconically hid behind manifest inadmissibility, which was not easy to verify given that the order did not set out in full the reasons put forward by the appellants.65 By turning a blind eye

60 European Court of Justice (Grand Chamber), Judgment (6 September 2017), Joined Cases C-643/ 15 and C-647/15, Slovak Republic and Hungary v Council of the European Union, para. 302. 61 Ibid., para. 305. 62 European Court of Justice (Third Chamber), Judgment (2 April 2020), Joined Cases C-715/17, C-718/17 and C-719/17, European Commission v Republic of Poland and Hungary and Czech Republic. 63 For the ‘Statement’, see, where deemed useful, Cherubini (2017), pp. 33–47. For the cooperation between Italy and Libya, see Pascale (2018), pp. 413–440. 64 European Court of Justice (General Court, First Chamber, Extended Composition), Order (28 February 2017), Case T-257/16, NM v. European Council, Case T-193/16, NG v European Council, Case T-192/16, NF v European Council. 65 European Court of Justice (First Chamber), Order (12 September 2018), Joined Cases C-208/17 P to C-210/17 P, NF and Others v. European Council.

88

F. Cherubini

(and maybe even two) to human rights, the EU and its Members succeeded in drastically decreasing irregular migration along the two main Central and Eastern Mediterranean routes. The Commission’s findings on the implementation of the Statement were unequivocal.66

7 The Attempts In addition to the urgent measures, the Commission from the outset attempted to more seriously deal with reforming the Dublin System. The first attempt was made at the same time as the adoption of the ‘emergency’ measures:67 this was a proposal, in September 2015, to amend the Dublin III Regulation aimed at generalizing the relocation mechanism.68 The proposal sought to introduce into this Regulation a new Section VII in Chapter VI, titled ‘Crisis relocation mechanism’. New Article 33A would give the Commission the power to adopt, motu proprio, a decision establishing ‘that a Member State is confronted with a crisis situation jeopardizing the application of this Regulation due to extreme pressure characterized by a large and disproportionate inflow of third-country nationals or stateless persons, which places significant demands on its asylum system’.69 Once this decision had been taken, the Commission would determine (within rigidly predetermined limits) the

66

See Report from the Commission to the European Parliament, the European Council and the Council, Seventh Report (6 September 2017) on the Progress made in the implementation of the EU-Turkey Statement, COM (2017) 470 final. 67 The Commission had proposed, again unsuccessfully, a minor change to the criteria for determining the MS responsible for the examination of the asylum application: see Proposal for a Regulation of the European Parliament and of the Council (26 June 2014) amending Regulation (EU) No 604/2013 as regards determining the Member State responsible for examining the application for international protection of unaccompanied minors with no family member, sibling or relative legally present in a Member State, COM(2014) 382 final. 68 Proposal for a Regulation of the European Parliament and of the Council (9 September 2015) establishing a crisis relocation mechanism and amending Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third country national or a stateless person, COM(2015) 450 final. 69 Even this generalised mechanism, indeed, was limited to requests with a high probability of success: see Art. 33C(2), which again proposed a proportion of decisions granting international protection among decisions taken at first instance on applications for international protection equal or higher than 75%.

The Commission Tries Again to Reform the Dublin System: Much Ado. . .

89

number of people to be relocated,70 their distribution71 and duration.72 The proposal, perhaps because some Member States feared that the powers delegated to the Commission were excessive,73 perhaps because others wanted to investigate the effects of the emergency measures in more detail before committing to a permanent mechanism,74 was withdrawn by the Commission in June 2019.75 In the meantime, the Commission had already formulated a new proposal in May 2016, intended this time to replace the Dublin III Regulation in its entirety with a Dublin IV Regulation,76 in the context of a more general reform of the CEAS proposed on 13 July 2016.77

Art. 33(A)(6): ‘For determining the number of persons to be relocated [. . .], the Commission shall take into account the following, in particular: (a) the number of applicants for international protection per capita in the Member State benefiting from relocation in the 18 months, and in particular in the six months, preceding the adoption of the delegated act compared to the Union average, (b) the capacity of the asylum system of that Member State, and (c) the participation of the Member State in previous solidarity initiatives as well as the extent to which the Member State has benefited from previous EU solidarity measures. The number of persons to be relocated shall not exceed 40% of the number of applications lodged with that Member State in the six months preceding the adoption of the delegated act’. 71 The distribution key was established by Annex III, which Art. 33B referred to. It was the result of different elements: population (weighting 40%), Gross Domestic Product (weighting 40%), average number of asylum applications over the 5 preceding years per million inhabitants (weighting 10%) and unemployment rate (weighting 10%). 72 New Art. 45(8) would have limited the applicability of the decisions of the Commission to a maximum period of 2 years. 73 See, e.g., the opinion given by the Hungarian National Assembly, (29 July 2016) Doc. 11584/16. However, it has to be underlined that, according to the proposed new formulation of Art. 45(8), ‘[a] delegated actè [. . .] shall enter into force only if no objection has been expressed either by the European Parliament or the Council [. . .]’. 74 See Doc. 14513/15. 75 See Withdrawal of Commission proposals (21 June 2019), O.J. C 210/13-14. The Commission took advantage to withdraw also the proposal referred supra, footnote 65. 76 Proposal for a Regulation of the European Parliament and of the Council (4 May 2016) establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person (recast), COM (2016) 270 final. On the very same day the Commission proposed a new Eurodac Regulation: Proposal for a Regulation of the European Parliament and of the Council on the establishment of ‘Eurodac’ for the comparison of fingerprints for the effective application of [Regulation (EU) No 604/2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person], for identifying an illegally staying third-country national or stateless person and on requests for the comparison with Eurodac data by Member States’ law enforcement authorities and Europol for law enforcement purposes (recast), COM (2016) 272 final. 77 Proposal for a Regulation of the European Parliament and of the Council (13 July 2016) on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection and for the content of the protection granted and amending Council Directive 2003/109/ EC of 25 November 2003 concerning the status of third-country nationals who are long-term 70

90

F. Cherubini

The new proposal, in addition to some minor changes, which did not aim to affect the country of first illegal entry criterion,78 was intended to introduce an entirely new solidarity mechanism called ‘Corrective Allocation Mechanism’ based on a fundamental assumption: the duty of each Member State to enter the number of applications examined into an automated system, including those ‘bounced’ by the corrective mechanism (Article 45). The system would automatically go into ‘emergency mode’ when a threshold was reached in a single Member State (150% of the pre-determined number) by applying an economic and demographic reference key to the total number of applications examined in the last 12 months in all Member States (Articles 34–35). In other words, according to this scheme, the economic health and population of a single Member State determined the percentage of its capacity to absorb asylum applications. When the capacity was put under pressure for more than half of its limit (150%), relocations would automatically be triggered (and, of course, redistributing the extra-applications based on the same key: population size and total GDP). The proposal, like many Commission initiatives in this policy area, received a great deal of criticism, some of which justified. The emergency threshold of 150% was objectively too high. Moreover, Article 36 excluded from the applications for relocation those declared inadmissible or examined under an accelerated procedure. In practice, the Member State in emergency would still have had to bear this first screening, and without exception: as ECRE rightly pointed out, ‘[g]iven the deletion [in Article 15] of existing clauses ceasing a Member State’s responsibility after a lapse of time, these countries would face perpetual responsibility and have no means of relief from their obligation when a transferring country is not complying with time-limits for transferring an applicant’.79 At the limits of the grotesque was the rule inserted in Article 37 according to which a Member State could, completely ad nutum, temporarily suspend itself from the corrective mechanism. In this case, after the automated system had communicated to the non-participating Member State the number of applicants for which the same State would have been responsible, the

residents, COM (2016) 466 final; Proposal for a Regulation of the European Parliament and of the Council (13 July 2016) establishing a common procedure for international protection in the Union and repealing Directive 2013/32/EU, COM (2016) 467 final; Proposal for a Directive of the European Parliament and of the Council (13 July 2016) laying down standards for the reception of applicants for international protection (recast), COM (2016) 465 final. The new Package also included a Proposal for a Regulation of the European Parliament and of the Council (13 July 2016) establishing a Union Resettlement Framework and amending Regulation (EU) No 516/2014 of the European Parliament and the Council, COM (2016) 468 final. 78 The main ones aimed at establishing a certain tightening of examination procedures: such as, e.g., new para. 3 of Art. 3 (which prioritised the application of the criteria of country of first asylum and safe third country vis-à-vis the determination of the MS responsible); or new Art. 5, which linked particularly incisive consequences to the supposed non-cooperation of the applicant. In this context the criteria for the determination of the MS responsible remained essentially the same, including, as we said, that of first illegal entry. 79 ECRE (28 October 2016) Policy Note: The Road out of Dublin: reform of the Dublin Regulation, p. 2.

The Commission Tries Again to Reform the Dublin System: Much Ado. . .

91

latter would have had to pay a solidarity contribution of €250,000 for each applicant who would otherwise have been allocated to that Member State in the respective twelve-month period. To recall is that, especially in such a politically sensitive area, the Commission was prompted to make proposals on the cheap in an attempt (very often vain, as indeed in this case) to gather the necessary consensus of the Members of the Council. It would be unrealistic to expect innovative solutions from the Commission while, so to speak, between a rock and a hard place. Which is not the case of the European Parliament: at the end of 2017, it was on the verge of opening negotiations with the Council on the Dublin IV proposal with a resolution containing its position at first reading. That position sought to include in the new Regulation an innovative criterion, called ‘bottom four’. The Parliament’s idea was to eliminate the criterion of the country of first illegal entry80 and the ‘closing’ criterion of the first country in which the application was made.81 Applications for which it was not possible to determine the Member State responsible (which therefore could not end up in the country of first illegal entry or, residually, in the country where the application was made) would be consigned to the new corrective mechanism.82 The Member State to whom the application was submitted had to inform the applicant that he/she would be assigned to a State of allocation chosen by the applicant from among the last four on a list, a sort of ranking of Member States from the highest burden-sharing quotient to the lowest, by applying the key indicated by the Commission (which was therefore not modified).83 In this way, the European Parliament’s position aimed to eliminate the very idea of a ‘state of emergency’ and introduce, at least in part, a choice for applicants: perhaps the best way to avert the much-feared secondary movements. Needless to say, no consensus was reached in the Council even for the Commission’s softer proposal. At the beginning of 2019, the Romanian Presidency could not but conclude that ‘there was no realistic prospect of making any major progress on the Dublin reform in the short term’,84 nor, for that matter, did the other proposals in the Package have better luck.85 The new Commission chaired by Ursula von der Leyen had in the meantime drawn up a new reform called ‘New Pact on Migration and Asylum’, withdrawing the proposal for the Dublin IV Regulation in April 2021.86 80 Amendment 118, Draft European Parliament legislative resolution on the proposal for a regulation of the European Parliament and of the Council establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person (recast), COM (2016)0270 – C8-0173/2016 – 2016/0133(COD). 81 Ibid., Amendment 49. 82 Ibid., Amendments 49, 119 and 166. 83 Ibid., Amendments 171–173. 84 Note from the Presidency to the Permanent Representatives Committee/Council (26 February 2019) Doc. 6600/19, p. 3. 85 Ibid., p. 4 ff. 86 Withdrawal of Commission proposals (23 April 2021), in O.J. C 143/4-5.

92

F. Cherubini

8 The New Pact The new Commission initiative operates differently depending on the measure concerned: for some, it simply supports the proposals made by the previous Commission, encouraging the European Parliament and the Council, which were already well advanced in the negotiations, to conclude them;87 for others, it amends the proposals of the Juncker Commission;88 and finally, it proposes ex novo solutions,89 which will affect also the Dublin Regulation, destined to be replaced by a Regulation on asylum and immigration management.90 The proposal confirms the rationale of the Dublin System, despite the maquillage operation aimed at wiping out its now very bad reputation linked to the name of the wonderful city that gave birth to James Joyce: the criterion of the country of first illegal entry remains almost intact, and indeed the frontline States ended up paying a high price for the concession of a solidarity mechanism, moreover marked by considerable flexibility to the benefit of the States providing ‘help’. The frontline

87 This was the choice for the Qualification Regulation, the Reception Directive and the Resettlement Framework Regulation, see supra, footnote 77. The Commission also inherited the old proposal aimed at upgrading the European Asylum Support Office, then created by Regulation No 439/2010: Proposal for a Regulation of the European Parliament and of the Council (4 May 2016) on the European Union Agency for Asylum and repealing Regulation (EU) No 439/2010, COM (2016) 271 final. The proposal had already been amended by the Juncker Commission: Amended Proposal for a Regulation of the European Parliament and of the Council on the European from the European Commission (12 September 2018) on the European Union Agency for Asylum and repealing Regulation (EU) No 439/2010, A contribution from the European Commission to the Leaders’ meeting in Salzburg on 19-20 September 2018, COM (2018) 633 final. 88 See Amended Proposal for a Regulation of the European Parliament and of the Council (23 September 2020) establishing a common procedure for international protection in the Union and repealing Directive 2013/32/EU, COM (2020) 611 final; and, on the same day, Amended Proposal for a Regulation of the European Parliament and of the Council (23 September 2020) on the establishment of ‘Eurodac’ for the comparison of biometric data for the effective application of Regulation (EU) XXX/XXX [Regulation on Asylum and Migration Management] and of Regulation (EU) XXX/XXX [Resettlement Regulation], for identifying an illegally staying third-country national or stateless person and on requests for the comparison with Eurodac data by Member States’ law enforcement authorities and Europol for law enforcement purposes and amending Regulations (EU) 2018/1240 and (EU) 2019/818, COM (2020) 614 final. 89 A new Screening Regulation: Proposal for a Regulation of the European Parliament and of the Council (23 September 2020) introducing a screening of third country nationals at the external borders and amending Regulations (EC) No 767/2008, (EU) 2017/2226, (EU) 2018/1240 and (EU) 2019/817, COM (2020) 612 final. A new Crisis and Force Majeure Regulation, which is supposed to replace the Temporary Protection Directive (see supra, note 27): Proposal for a Regulation of the European Parliament and of the Council (23 September 2020) addressing situations of crisis and force majeure in the field of migration and asylum, COM (2020) 613 final. 90 Proposal for a Regulation of the European Parliament and of the Council (23 September 2020) on asylum and migration management and amending Council Directive (EC) 2003/109 and the proposed Regulation (EU) XXX/XXX [Asylum and Migration Fund], COM (2020) 610 final.

The Commission Tries Again to Reform the Dublin System: Much Ado. . .

93

States, in fact, would be vested with a screening role to be completed before91 the application of the new Management Regulation, and therefore without the slightest possibility of benefiting, at this rather crucial stage, from the solidarity of other Member States, mainly due to the new Screening Regulation92 imposing considerable prior checks. In other words, before referring the applicant to the authorities in charge of assessing the application, in procedure (admissibility, including the application of the criteria for determining the responsible Member State) and in merits, other national authorities should assess the irregular migrant’s93 state of health and vulnerability, identify him/her, record his/her biometric data, and carry out a security check, among other things.94 Therefore, the main rules have not changed, while the mechanisms aimed at achieving forms of solidarity are the exception thereto. There are three scenarios in which solidarity is intended to operate, plus a fourth, governed by the Crisis Regulation proposal:95 disembarkations following search and rescue operations or the significant presence of vulnerable applicants; migratory pressure; a preventive mechanism of solidarity; and a crisis situation. In the first case, the procedure in brief is as follows: the European Commission has the task of drawing up an annual Migration Management Report, ‘setting out the anticipated evolution of the migratory situation and the preparedness of the Union and the Member States’.96 If the latter indicates that one or more Member States are likely to (i) face a situation of recurring arrivals of third-country nationals or stateless persons due to search and rescue operations, or (ii) suffer capacity challenges due to

91

According to Art. 14 of the Screening Regulation proposal, only after the outcome of the screening, the applicants would be referred to the competent authorities, of the very same State (para. 2) or of the State of relocation, if applicable (para. 3). Ad abundantiam, one of the amendments to the original Procedure Regulation proposal (see supra, footnote 86) aims at introducing a new para. 5 to Art. 27, which reads as follows: ‘For third-country nationals subject to the screening referred to in Article 3(1) of Regulation (EU) No XXX/XXX [Screening Regulation], paragraphs 1 to 4 [regarding the registration of applications for international protection] shall apply only after the screening has ended’ (emphasis added). 92 See supra, footnote 87. 93 The duty to conduct the screening activities regards only specific categories of irregular migrants: according to Art. 3(1-2) of the Screening Regulation proposal, ‘1. This Regulation shall apply to all third-country nationals who: (a) are apprehended in connection with an unauthorised crossing of the external border of a Member State by land, sea or air, except third country nationals for whom the Member State is not required to take the biometric data pursuant to Article 14(1) and (3) of Regulation (EU) 603/2013 for reasons other than their age, or (b) are disembarked in the territory of a Member State following a search and rescue operation. The screening shall apply to those persons regardless of whether they have applied for international protection. 2. The screening shall also apply to all third-country nationals who apply for international protection at external border crossing points or in transit zones and who do not fulfil the entry conditions set out in Article 6 of Regulation (EU) 2016/399’. Needless to say, they are exactly the categories of irregular migrants representing the kind of flows affecting the borders of frontline States. 94 Art. 6 of the Screening Regulation Proposal. 95 See supra, footnote 87. 96 Art. 6.

94

F. Cherubini

the presence of applicants who are vulnerable, regardless of how they crossed the external borders, the Commission has to set out, in the very same Report: the total number of applicants for international protection not subject to the border procedure that would need to be relocated; and the capacity-building measures necessary to assist the Member State concerned.97 Relatedly, the Commission invites the Member State not expected to face arrivals of the sub (i) and (ii) type on their territory to provide the solidarity contributions (relocation and capacity-building measures), specifying ‘the total number of applicants to be relocated by each Member State’, calculated according to the consolidated distribution key (population size and total GDP).98 Then, the Member States must provide feedback to the Commission, with a SAR Solidarity Response Plan:99 if the Commission is satisfied, it adopts the final scheme, which shall then constitute ‘a solidarity pool for each Member State expected to be faced with disembarkations in the short term’.100 The Commission will draw on the pool at the request of the Member State in emergency, and coordinate the implementation of the solidarity measures.101 If the Commission considers the Member State’s proposals inadequate, it will first try to solve the issue in a Solidarity Forum,102 then, if this attempt also fails to produce satisfactory results, it proceeds on its own, building up the pool.103 In the second hypothesis, the starting point is migratory pressure monitoring on the Commission or Member State’s initiative.104 The activity ends with a report: if it finds that the Member State is under migratory pressure, the solidarity plan is triggered. The measures are indicated by the Commission in the same report and may consist of: relocation and capacity-building measures, as in the case of search and rescue/vulnerable applicant scenarios;105 return sponsorship of illegally staying third-country nationals; relocation of ‘recent’ beneficiaries of international

97 Art. 47(2). The capacity-building measures are described in Art. 45(1)(d) as ‘capacity-building measures in the field of asylum, reception and return, operational support and measures aimed at responding to migratory trends affecting the benefitting Member State through cooperation with third countries’. 98 Art. 47(3). 99 Art. 47(4). 100 Art. 48(1). The references that Arts. 47(4) and 48(1) make, respectively, to the ‘SAR’ Plan and to ‘disembarkations’ should not be misleading: the solidarity pool can also be used in cases of challenges in the management of vulnerable applicants as a result of Art. 49(4). 101 Art. 49(1). 102 Art. 47(5). 103 Art. 48(2). The Commission establishes appropriate adjustments within the limits described in the same provision. On the other hand, it has full discretion where one or more MSs have never responded to the request to issue a SAR Solidarity Response Plan: see again Art. 48(2). 104 Art. 50. ‘The assessment of migratory pressure shall cover the situation in the Member State concerned during the preceding six months, compared to the overall situation in the Union, and shall be based in particular on’ specific information described in Art. 50 (3-4). 105 So, even in this case, relocations may regard only ‘applicants who are not subject to the border procedure’.

The Commission Tries Again to Reform the Dublin System: Much Ado. . .

95

protection.106 Again, after the adoption of the report, each Member State has to present a plan indicating the nature and extent of its contribution.107 If the plans submitted are adequate overall, the Commission will make a decision establishing: the total number of persons to be relocated (applicants and ‘recent’ beneficiaries); the total number of sponsored returns; and the distribution of these numbers among Member States, resulting from the application of the noted key.108 To these, the Commission adds capacity-building measures. If the feedback from Member States is inadequate, the Commission will convene the Solidarity Forum,109 and if the Forum does not come up with the necessary corrections, it will independently determine the aforementioned measures.110 The preventive mechanism—the third included in the proposal—follows a simpler procedure: when a Member State requests support (by notifying the Commission), the others can respond with measures of the same category for responding to migratory pressure, to which the relocations of some of the excluded groups can also be added (applicants subject to the border procedure, and more in general, illegally staying third-country nationals). Member States that voluntarily cooperate shall notify the Commission ‘by completing the Solidarity Support Plan’.111 Finally, the Crisis Regulation proposal envisages a variant of the solidarity mechanism intended for migratory pressure. The main differences lie in a more serious basic assumption consisting of an exceptional situation of a mass influx of irregular migrants (including those disembarked after search and rescue operations),112 a higher time limitation,113 and solidarity measures that here include relocation tout court114 and sponsored returns (but not capacity-building contributions).

106 Those ‘who have been granted international protection less than three years prior to adoption’ of the Commission’s decision providing the necessary solidarity measures to help the MS facing a migratory pressure (see Art. 45(1)(c)). 107 Art. 52(3). 108 Art. 53(1 and 3). 109 Art. 52(4). 110 Art. 53(2). Even here, the Commission establishes appropriate adjustments within the limits described in the same provision, whereas it has full discretion if one or more MSs have never responded to the request to issue a Solidarity Response Plan. 111 Art. 56. 112 An exceptional situation or an imminent risk of such a situation ‘of mass influx of third-country nationals or stateless persons arriving irregularly in a Member State or disembarked on its territory following search and rescue operations, being of such a scale, in proportion to the population and GDP of the Member State concerned, and nature, that it renders the Member State’s asylum, reception or return system non-functional and can have serious consequences for the functioning the Common European Asylum System or the Common Framework as set out in Regulation (EU) XXX/XXX [Asylum and Migration Management]’. 113 See esp. Art. 2 (2-3 and 7). 114 I.e., relocation of applicants for international protection, included those who are subject to the border procedure, relocation of ‘recent’ beneficiaries of international protection, relocation of illegally staying third-country nationals.

96

F. Cherubini

As expected, and despite the enthusiastic political marketing that accompanied its presentation,115 the entire solidarity system is the result of the Commission’s evident self-censorship in an understandable attempt to leave more room for compromise in the Council. The Package is in fact marked by a significant degree of flexibility, which may not be able to undermine the solidity of the main de facto rule: the criterion of the country of first illegal entry. The exclusion of applicants subject to the border procedure (with the sole exception of crisis situations) renders the mechanisms of compulsory solidarity inoperative under the hypothesis that it most likely concerns irregular arrivals in frontline Member States. Moreover, for the (few?) irregular arrivals for which solidarity would operate, the clauses allowing other Member States to soften their solidarity role are numerous—too many and without any monitoring.116 Not to mention that even before these mechanisms operate (if they do), frontline Member States still have to carry out complex and costly screening operations. In short, the Dublin System is not undergoing any revolution, but only taking a few small, almost certainly insufficient, steps forward.117 This is an operation that politicians are perfectly capable of repeating for other dossiers in which compromise is put before the respect of human rights, such as the collective right to a sustainable planet. Negotiations on the measures of the Package, including those we have briefly analyzed here, are slow and have not yet produced significant results. Authoritative commentators are monitoring the progress of the proposals presented by the Commission, but the degree of skepticism they are witnessing seems to exclude that a solution will be quickly found.118 In the meantime, arrivals continue, albeit at a

115 Communication from the Commission (23 September 2020) on a New Pact on Migration and Asylum, COM (2020) 609 final. 116 A few examples. Art. 9(1) of the Crisis Regulation Proposal: ‘Where a Member State is facing a situation of force majeure which renders it impossible to comply with the obligation to undertake solidarity measures within the timeframes established in Articles 47 and 53(1) of Regulation (EU) XXX/XXX [Asylum and Migration Management] and Article 2 of this Regulation, it shall notify the Commission and the other Member States without delay. The Member State concerned shall indicate the precise reasons for which it considers that it is facing a situation of force majeure and provide all necessary information for that effect. After such notification, by way of derogation from the timeframes established by those Articles, the timeframe for undertaking solidarity measures established in those Articles shall be suspended for a maximum period of six months’. Art. 57(7) of the Management Regulation Proposal, concerning relocations under each of the solidarity mechanisms described: ‘Where the checks confirm that there are reasonable grounds to consider the person concerned a danger to its national security or public order, the Member State of relocation shall inform within one week the benefitting Member State of the nature of and underlying elements for an alert from any relevant database. In such cases, relocation of the person concerned shall not take place’. 117 See also Morgese (2020), pp. 26–27. 118 Hein (2021), in particular, is devoting, from October 2020, a series of articles to the developments of the negotiations around the New Pact, published on the website of the Heinrich Böll Foundation: the last one dates 12 November 2021, Looking for pact-makers: the debate on the deadlocked EU Migration and Asylum Pact. Up to the time of writing, all the new and amended proposals (supra, footnotes 88, 89, 90) are still awaiting the EP’s position in first reading, which is

The Commission Tries Again to Reform the Dublin System: Much Ado. . .

97

slower pace, fueled by recent events in Afghanistan and Ukraine. And solidarity, like respect for human rights, does not seem to be among the priorities of EU Member States. However, the current events in Ukraine and the reappearance of a common enemy could have a very powerful coagulating effect, eventually dispelling any remaining hesitation of the more recalcitrant Member States.

References Cherubini F (2016) Asylum law in the European Union. Routledge, London Cherubini F (2017) The ‘EU-Turkey Statement’ of 18 March 2016: a (Umpteenth?) celebration of migration outsourcing. In: Baldin S, Zago M (eds) Europe of migrations: policies, legal issues and experiences. EUT, Trieste, pp 33–47 Clante Bendixen M (2018) What are the chances of being granted asylum?. Refugees.dk, Information on Refugees in Denmark Fullerton M (2016) Asylum crisis Italian style: the Dublin regulation collides with European human rights law. Human Rights J 29(57):57–134 Hailbronner K (1998) European immigration and asylum law under the Amsterdam treaty. CML Rev 35:1047–1067 Hein C (2021) Looking for pact-makers: the debate on the deadlocked EU migration and asylum pact. Heinrich Böll Foundation Morgese G (2020) La solidarietà tra Stati membri dell’Unione europea nel nuovo Patto sulla migrazione e l’asilo. Annali AISDUE II:16–28 O’Nions H (2014) Asylum – a right denied. Ashgate, Farnham Pascale G (2018) ‘Esternalizzazione’ delle frontiere in chiave antimigratoria e responsabilità internazionale dell’Italia e dell’UE per complicità nelle gross violations dei diritti umani commesse in Libia. Studi sull’integrazione europea XIII:413–440

Francesco Cherubini is Associate Professor of EU Law at the Department of Political Science, Luiss ‘Guido Carli’, Rome, where he also teaches International Organizations and Human Rights. International Chair at the Department of Law of the University of Utrecht in 2017, Visiting Scholar at the School of Law of the University of Durham in 2016, and Visiting Fellow at the Centre for the Study of Human Rights of the London School of Economics and Political Science in 2012. He is the Director of the SoG Course in Diplomacy Studies at Luiss. Among his recent publications: Decisions under the Law of European Union: ‘You May Be Six People, but I Love You’, in YEL, 2022, pp. 1–60. He edited, with Ennio Triggiani, Ivan Ingravallo, Egeria Nalin and Roberto Virzo, the Dialoghi con Ugo Villani, 2 voll. (Cacucci, 2017).

the first step of the ordinary legislative procedure. Among the old ones, the institutions were only able to finalize the EUUA Proposal (footnote 87): Regulation (EU) 2021/2303 of the European Parliament and of the Council (15 December 2021) on the European Union Agency for Asylum and repealing Regulation (EU) No 439/2010, O.J. L 468/1. The others (footnote 77) are again still awaiting the EP’s position in first reading.

Migration and the Janus Faces of Solidarity and the Rule of Law: Brief Remarks in the Light of the Italian Experience Angelo Jr Golia

Abstract The chapter explores the link between the principle of solidarity and the rule of law in migration policies by briefly analysing two cases that occurred in the Italian legal system. Such cases concern respectively the instrumental use of ministerial (ir)responsibility in favour and against former Minister of Internal Affairs Matteo Salvini; and the residence registration at local municipalities. Both highlight the dangers related to (1) exclusionary conceptions of solidarity; and (2) conceptions of the rule of law detached from legal certainty and right to access as pre conditions for the effective enjoyment of constitutional and international rights. These considerations, in turn, point to the need—both in research and policy agendas—to take into consideration the different conceptions of solidarity and the rule of law to address the complex and multifaceted issues related to migration governance. Further, such considerations are useful to assess the value and broader effects of recent trends emerging in EU law concerning the principle of solidarity.

1 Introduction In the current scholarly debate at both European and international levels, the principle of solidarity has acquired a new centrality, especially as a consequence of the economic-financial crisis that started in 2008 and, more recently, the one resulting from the 2020 COVID-19 pandemic.1 In Italy, this debate has been grafted onto an already vibrant strand, which has linked the normative scope of the principle of solidarity to the legal status of migrants, especially in the field of social rights.2 In this context, the different sides of the principle of solidarity—precept of economic

1 2

See Ioannidis (2020). For an overview, see generally D’Acunto et al. (2017) and Biondi Dal Monte and Rossi (2020).

A. J. Golia (✉) Department of Law, University of Trento, Trento, Italy Association for Juridical Studies on Immigration (ASGI), Trento, Italy e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 T. Russo et al. (eds.), Solidarity and Rule of Law, European Union and its Neighbours in a Globalized World 9, https://doi.org/10.1007/978-3-031-29227-9_6

99

100

A. J. Golia

redistribution and/or instrument of socio-political integration—had already emerged. However, here one needs to distinguish at least two levels of analysis. On the first level, one must note that the principle of solidarity in the Italian constitutional system has a sui generis legal nature. Indeed, the latter has emerged as a legal principle that interacts and ‘moves’ other norms of constitutional and legislative level in order to generate integration through conflict.3 In other words, and differently from other comparable constitutional systems, in the Italian constitutional system the principle of solidarity relates and potentially puts against each other various constitutionally protected interests without necessarily offering legally pre-determined solutions. The principle of progressivity in tax matters under Art. 53(2) of the Constitution,4 for example, connects and somehow puts ‘against’ each other the taxpayer’s right to property under Art. 425 and his/her duty to participate in public spending under Art. 53(1)6 in a more than proportional manner. However, the same provision does not define the limits within which the legislator may depart from proportional taxation without violating the limit of practical ability to pay. In this way, the principle of solidarity emerges as a vehicle of politicisation and social conflict that continuously and dynamically generates new political-legal balances. Solidarity has thus no specific direction but has different forms, scope, and intensity depending on the specific possibilities of politicisation and social integration. At the second level of analysis, the problem emerges of the foundations and legal limits of the acts of the authorities that constitute (or should constitute) the basis of solidarity. In this context, the historical ambiguity of the (continental) concept of the stato di diritto emerges fully in the Italian constitutional system, especially when compared to the functionally equivalent concept of ‘rule of law’, which dominates Anglo-Saxon systems. While the concept of rule of law essentially refers to the need for the (administrative) power to be exercised in conformity with substantial and procedural guarantees, the concept of the stato di diritto (closer to the French Etat de droit) essentially refers to the fact that acts of the authorities require legal bases, irrespective of the procedural or substantial criteria laid down in each specific case and of the modalities with which such legal basis has been made. To be sure, this is an ideal-typical distinction and, in the concrete experience of the various constitutional experiences of the modern age, these two models have often overlapped and hybridised. In the background, there remains the problem of the legal limit of the power of the administrative apparatuses that concretely carry out public functions and exercise

3

Cf. Golia (2021). For a similar position in the context of EU social law, see generally Sciarra (2018). 4 Providing that ‘[T]he tax system shall be progressive’. 5 Providing that ‘Private property is recognised and guaranteed by the law, which prescribes the ways it is acquired, enjoyed and its limitations so as to ensure its social function and make it accessible to all’. 6 Providing that ‘[E]very person shall contribute to public expenditure in accordance with their capability’.

Migration and the Janus Faces of Solidarity and the Rule of Law:. . .

101

coercive powers and, above all, of their own ‘parallel’, extra-legal legitimation.7 We are not dealing here with Weber’s distinction between formal-rational and charismatic legitimation, but with the problem of the possible autonomous legal legitimation of the administrative apparatus—as a nucleus of governing power—with respect to democratically legitimated modalities of legal production. This is, in fact, a historical problem of modern Western constitutionalism, particularly felt in the nineteenth century, when the conflict between (post-)monarchical and representative structures had not yet been completely decided in favour of the latter. At that time, the question was whether legal sources of parliamentary (or democratic) derivation should always and in every case constitute the necessary basis for any act of public power or whether these sources should prevail, in the case of conflict, over acts of administrative power. Despite the survival in various forms of the category of the political question (in Italian: atto politico),8 in Western constitutional systems this issue seemed to have been resolved in the first sense. However, starting at least from the 1980s, a number of interrelated processes have emerged: globalisation and internationalisation of political decision-making, the crisis of mass political parties and the institutions of representative democracy, personalisation of politics, centralisation and presidentialisation of executives, normalisation of emergency policies, and populisms of various kinds.9 These processes have led to a strong re-emergence of the problem of the autonomous legitimacy of the administrative state10 even in systems, such as the Italian one, in which the executive does not have direct democratic legitimation and is mostly the result of post-electoral parliamentary coalitions. The analysis of the legal impact of the migratory phenomenon on the Italian legal system must therefore be placed in a broader context characterised by two fundamental elements: on the one hand, the specificities of the principle of solidarity, understood as an instrument of integration through conflict and ever new politicisation(s); on the other hand, the tendency towards the re-emergence of an ‘administrative State’ where the executive produces decisions and legal norms in relative autonomy, even in the absence of direct democratic legitimisation. Read in the light of these two elements, the Italian experience of migration governance emerges as a real stress test with respect to specific conceptions of solidarity and the rule of law. In this sense, for example, decisions concerning the number of subjects who can access the benefits of the welfare state can respond to different and even opposing dynamics of politicisation, the latter understood as the level of political pressure and conflicts that accompany decision-making and implementation

7 Despite the shameful commitment to National-Socialism of the author, it is still today useful to read Schmitt (1973); and Schmitt (1996 [1928]). 8 Which, not by chance, was initially developed in the French legal system (acte de gouvernement) of the 19th century as an area of non-justiciability of administrative acts on account of their instrumentality with respect to the ‘supreme interests’ of the state: see Garner (1924), pp. 606 ff. 9 See generally Crouch (2006) and, for the Italian constitutional system, Delledonne et al. (2020). 10 See von Bogdandy (2000) and Sunstein and Vermeule (2020).

102

A. J. Golia

in a certain governance area: a restriction may respond to choices of identity and de-complexification of the social fabric, a sort of Schmittian call to arms of the ‘Us against Them’;11 an expansion may, on the contrary, respond to the perceived need to involve individuals and communities living in the same territory and to integrate them into the same political fabric, beyond citizenship status.12 The focal point of solidarity in the field of migration governance—and of the related rights/duties—is increasingly shifting from the institution of citizenship to that of residence.13 At the same time, the expansion of the role of the executive in the management of migratory phenomena in ways that violate or circumvent the guarantees provided in law opens up possibilities for abuse that are not always easy to bring to justice. In this field, the effectiveness of (any conception of) the rule of law depends on the possibility of most vulnerable people effectively to access justice and the substantive rights provided by law. Against this background, this chapter offers a glimpse of the state of the art of the migration governance in the Italian experience in the light of such relatively specific characteristics. This discussion is not irrelevant to EU security and migration governance. Indeed, seen through the prism of the politicisation effects, the Italian experience concerning the rule of law and the solidarity principle may offer useful insights on the strategies implemented by the EU and the ECJ, especially when it comes to the interplay between, on the one hand, the externalisation of borders and the hotspot approach;14 and, on the other hand, solidarity and rule of law, which is increasingly emerging as a fully justiciable, general principle of EU law.15 To this end, the chapter analyses two cases deemed particularly significant from this point of view, not least because they concern the two most relevant forms of legally sanctioned ‘border-crossing’, namely those concerning the access to the national territory and the access to the benefits of the welfare State.16 The first one, analysed in Sect. 2, concerns the conduct of Matteo Salvini, Minister of Internal Affairs during the 2018–2019 coalition cabinet mainly supported by the populist Movimento 5 Stelle (M5S) and the far-right party Lega Nord (LN). Between 2018 and 2019, Mr Salvini, who is also the leader of LN, on several occasions prohibited the entry into national waters and the docking at Italian ports of vessels that had rescued migrants in international waters, often bypassing or overstepping other competent authorities. Taken together, these conducts have been 11

Cf. Penasa (2020). Cf. Ronchetti (2012). 13 Cf. Bifulco (1999) and Rossi (2010). 14 See, among many, Benvenuti (2018), Ziebritski (2020) and Moser and Rittberger (2021). 15 European Court of Justice (Grand Chamber), Judgment (6 September 2017), C-643/15 and C-647/15, Slovak Republic and Hungary v. Council of the European Union; European Court of Justice (Third Section), Judgment (2 April 2020), C-715/17, C-718/17 and C-719/17, Commission v. Poland (Temporary mechanism for the relocation of applicants for international protection), European Court of Justice (Grand Chamber), Judgment (15 July 2021), C-848/19 P, Federal Republic of Germany v. European Commission. 16 On such two forms of crossing in the context of migration policies, see Golia (2017). 12

Migration and the Janus Faces of Solidarity and the Rule of Law:. . .

103

regarded as a flagrant abuse of ministerial authority and have led to the prosecution of Mr Salvini for the offences of aggravated kidnapping17 and refusal to perform official acts18 in several proceedings, some of which are still pending, involving both parliamentary and judicial bodies. The second one, analysed in Sect. 3, concerns the rule under Art. 13 of Decree Law No. 113/2018, according to which the residence permit of asylum seekers did not constitute a qualification to obtain registration with the municipalities of residence. This rule, therefore, prevented access to several social benefits guaranteed to residents in the territories concerned. In a particularly significant judgment, the Constitutional Court declared this rule unconstitutional.19 Section 4 concludes with some final remarks, highlighting the necessity to link more closely issues concerning solidarity and the principles of the rule of law, both in research agendas and in lawmaking. In particular, it links the trends emerging in the Italian context to the parallel developments occurring in the EU migration governance, pointing to the (de)politicisation effects that different strategies tend to have.

2 At the Territorial Border: Salvini’s Rule? From the perspective of domestic law, the case concerning the denial of entry to vessels rescuing migrants in the high sea by former minister Salvini involves a patchwork of both substantive and procedural norms. Here, we only focus on those concerning the prosecution of members of the executive for acts performed in pursuance of the ‘protection of a constitutionally important state interest or the pursuit of an overriding public interest in the exercise of the function of government’.20 Although such institute falls within the broader category of constitutional protections of political branches against the intrusion of the judiciary, it is not an immunity from prosecution. Instead, it is characterised by procedural specifics. Indeed, following a reform in 1989, for such types of proceedings ad hoc chambers (Tribunali dei Ministri) have been established at each appeals court, tasked with collecting reports, complaints, preliminary evidence-finding and, potentially, formulating the indictment(s). Having carried out preliminary investigations and heard the public prosecutor, the Tribunale dei Ministri may decide within 90 days to close the

17

Art. 605 italian penal code. Art. 328 italian penal code. 19 Italian Constitutional Court 186/2020 (9 July 2020). 20 Art. 9 Constitutional Law No. 1, 16 January 1989 (my translation). In most recent literature, see only Masera (2020). 18

104

A. J. Golia

case21 or to forward the documents with a reasoned report to the public prosecutor so that the latter may request authorisation to proceed under Art. 5 of Constitutional Law no. 1/1989 from the chamber of Parliament to which the accused belongs.22 Based on a non-binding proposal formulated by an ad hoc parliamentary committee (Giunta per le autorizzazioni a procedere), the competent chamber of Parliament may refuse authorisation by an absolute majority vote if it considers, according to its unappealable judgement, that the defendant has acted to protect a constitutionally salient interest of the State or to pursue an overriding public interest in the exercise of his government function. If the authorization to proceed is obtained, the trial in first instance ordinary criminal courts may start.23 Having summarised the legal-procedural framework concerning ministerial offences, one must remember that, since his appointment in 2018, Mr Salvini engaged in a relentless and well-orchestrated xenophobic strategy aimed at increasing the electoral consensus of LN. Such strategy, which proved extremely successful, was mainly based on presenting himself as the government’s strongman against the ‘invasion’ of migrants24 and led to a series of virtually pointless25 but highly symbolic episodes whereby Mr Salvini prohibited the entrance of several vessels which had rescued migrants in the Mediterranean Sea into territorial waters as well as their docking at Italian ports. Significantly, such acts had no clear legal basis and were often presented as adopted unilaterally and often overstepped the competences of mostly acquiescing members of the executive.26 Without delving into the details of each case—which also involve relevant aspects of international law—it is sufficient to recall that, despite their differences, such conducts led judicial authorities to start criminal proceedings against Mr Salvini, alleging kidnapping and dereliction of duty.27 However, when it came to the parliamentary authorisation required by the legal framework recalled above, the distinct proceedings led to different outcomes. Indeed, although the cases showed significant similarities from a legal standpoint, the Senate decided differently in a timespan of only a few months. Indeed, in the case of the ‘Diciotti’ ship, the Senate decided to deny the authorisation to proceed requested by the Tribunale dei Ministri

21

In which case the decision cannot be appealed (the Public Prosecutor may only ask the panel to carry out further investigations, specifying the reasons; the panel decides within the following 60 days). Se Art. 8, Constitutional Law No. 1/1989. 22 If the member of the executive is not a member of Parliament, authorisation is requested from the Senate. 23 Which is a judicial body distinct from the Tribunale dei Ministri. 24 See Kirchgaessner (2018). See more generally Penasa (2020). 25 From the perspective of migration governance. 26 Only after more than a year, Art. 1, Decree Law No. 53, 5 August 2019, formalised the transfer of competences regarding the entry into Italian ports to the Minister of Internal Affairs. Such transfer was repealed in 2020, after the change of government coalition: see Art. 1, Decree Law No. 130, 21 October 2020. 27 See generally Benvenuti (2019) and Giupponi (2021).

Migration and the Janus Faces of Solidarity and the Rule of Law:. . .

105

of Catania, following the proposal formulated by the Giunta;28 while in the case of the ‘Gregoretti’ and ‘Open Arms’ ships, the authorisations requested by the Tribunale dei Ministri of Catania and Palermo were granted.29 Evidently, the main difference was not legal in nature but rather lied in the change in August 2019 in the political majority supporting the Government and the consequent change in the composition of the latter, with the ousting of Mr Salvini. Besides the several shortcomings of the legal framework that have long emerged,30 such proceedings raised once again doubts as to the exact role of Parliament in assessing requests for authorisation to proceed for ministerial offences and as to the exact scope of the exemptions provided for by Art. 9 of Constitutional Law no. 1/1989. As regards the first point, in all three cases, the Giunta pointed out in its reports that it is not the task of the Chambers to assess whether the alleged offences are well-founded, but rather to assess the actual existence of one of the exceptional causes of exemption which only make it possible to deny authorisation. Notably, such assessment should not depend on the ‘political’ nature of ministerial decisions under scrutiny. The aim of the parliamentary intervention is (should be) only to assess whether or not the government’s action is exempted in light of the pursuit of a higher public interest of constitutional importance, regardless of the more general problem of the existence and scope of ‘political questions’. Instead, the expansion of the category of the atto politico in the most recent parliamentary practice regarding ministerial offences risks distorting the role of the Chambers, transforming a legitimate prerogative into an illegitimate privilege.31 Be as it may, the Senate’s stance on whether the conducts of Mr Salvini fell within the exemptions provided by Constitutional Law No. 1/1989 changed together with the political majority in August 2019. This point is highly problematic from the perspective of the rule of law insofar as it highlights that the application of exemptions provided by law was influenced by political considerations which had little or nothing to do with the legal merits of the cases. This change, ostensibly justified by the sudden sense of solidarity and humanity towards migrants of Mr Salvini’s former allies, denotes the political use of such legal framework also from another perspective, insofar as it was directed against a (now) political opponent by parties and individuals which had previously tolerated or even supported the xenophobic drift triggered by Mr Salvini. The Salvini saga, still ongoing before ordinary criminal courts in trials concerning the ‘Gregoretti’ and ‘Open Arms’ ships, shows that the ‘politics of solidarity’ is highly ambiguous when it comes to the rule of law, from two perspectives at least. From a first perspective, solidarity may lead to extremely different outcomes, depending on whether it is framed as a protection of a pre-existing political community against the ‘Other’; or as an idea(l) justifying the instrumental use of law to 28

See deliberation 20 March 2019. See deliberation 12 February 2020 and deliberation 30 July 2020. 30 See only Giupponi (2009). 31 Cf. Giupponi (2021), p. 13. 29

106

A. J. Golia

get rid of internal political opponents. From a second perspective, the saga also relates the weaknesses of (both conceptions of) the rule of law under the pressure of migration phenomena, as not only did Mr Salvini’s conducts violate migrants’ rights, but they also lacked clear bases in existing laws. In either case, the ultimate victims are migrants, who are granted or denied both procedural and substantive rights enshrined in existing laws depending on largely arbitrary political considerations. The saga, then, highlights the need for more precise schemes of rule-based decision-making insofar as they ultimately benefit weaker actors and protect humans from arbitrariness. In this sense, the ultimate telos of any conception of the rule of law converges with the protection of human rights and with authentic solidarity.

3 At the Administrative Border: Residence Registration and the Role of the Constitutional Court One of the most relevant measures of the Italian government led by M5S and LN between 2018-2019 in the field of migration governance was the (by now infamous) ‘Public Safety Decree’ (Decreto sicurezza),32 which restricted or repealed several legal instruments protecting the rights of migrants. Overall, the Decreto sicurezza was characterised by the precise political vision aimed to make entry and permanence in Italy less attractive for migrants, in turn inspired by the view that their presence intrinsically constitutes a threat to public safety.33 Among other provisions, the Decreto sicurezza provided that the residence permit granted to asylum seekers—pending the application to obtain refugee status—did not automatically grant civil registration,34 thus preventing access to a wide array of local social security benefits. In other words, the administrative law concerning residence was used to prevent access to the ‘solidarity circle’ of the community where migrants are based, despite the fact that existing constitutional and ordinary laws recognised them the related substantive rights. Unsurprisingly, such an unreasonably discriminatory framework proved to be controversial in the case law of ordinary courts. Some of them, noting that the provision did not explicitly prohibit the registration, adopted a legislator-friendly interpretation, arguing that the registry offices of local municipalities had to verify the actual residence of the asylum seeker on a case-by-case basis. Others, based on a more systematic interpretation of the Decreto, its legislative history, and the

32

Law Decree No. 113, 4 October 2018. See Algostino (2018). 34 Art. 13(1)(a)(2), modifying Art. 4 Legislative Decree No. 142/2015, which in turn was the domestic act implementing Directive 2013/33/EU of the European Parliament and of the Council laying down standards for the reception of applicants for international protection; and Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection, OJ L 180 (2013). 33

Migration and the Janus Faces of Solidarity and the Rule of Law:. . .

107

subsequent implementation measures adopted by the Ministry of Internal Affairs, read the provision as a full-fledged prohibition. Adhering to the latter interpretation, with the judgement no. 186/2020 of the Constitutional court clarified that the provision established a prohibition and declared it unconstitutional on the grounds that it was unreasonable and discriminatory, thus violating the standards set in Art. 3 Const.35 The decision of the Court to declare the provision unconstitutional was based on several grounds. Among them, a major role was played by the striking contradiction of Art. 13 with the proclaimed purposes of the Decreto, that is, strengthening control and monitoring of migration fluxes on the national territory.36 Indeed, besides other considerations related to the access to social benefits, by de facto preventing asylum seekers to register their residence in a given city, the provision weakens the capacity of public authorities to monitor the movements of migrants effectively. However, for the purposes of this chapter, the most significant ground of the decision is the violation of the principle of equality under Art. 3 Const.37 Indeed, although the text of such constitutional provision refers to ‘citizens’, the Constitutional court has long clarified that 1) the principle of equality also applies to foreigners when it comes to respect of fundamental rights; and 2) the legislator is not allowed to establish differentiated regimes about the treatment of individuals, unless there is a regulatory ground not clearly irrational or, worse, arbitrary.38 By effectively prohibiting residence registration at local municipality to asylum seekers, Art. 13 of the Decreto not only had adverse effects for asylum seekers in terms of access to services that are also guaranteed to them.39 What is more, it violated a more general principle of ‘equal social dignity’ of foreigners.40 Importantly, following

35

See above note 19, spec. paras 4.1–4.2. See also Ciervo (2020), Rossi (2020) and Canzian (2021). See above note 19, para 4.1. 37 ‘All citizens have equal social dignity and are equal before the law, without distinction of sex, race, language, religion, political opinion, personal and social conditions. It is the duty of the Republic to remove those obstacles of an economic or social nature which constrain the freedom and equality of citizens, thereby impeding the full development of the human person and the effective participation of all workers in the political, economic and social organisation of the country’. 38 See above note 19, para 4.2, recalling a line of case-law started in the 1960s. See Luciani (1992); and Rossi (2010). 39 See above note 19, para 4.2: ‘Without entering into the merits of the debated issue relating to the possibility or not to obtain, for each service, the provision by the competent administrations in the absence of the registered residence (. . .) it is undeniable that the provision of the provision of services in the place of domicile, rather than in the place of residence (. . .), makes it, at the very least, unjustifiably more difficult to access the services themselves, if only for the practical and bureaucratic obstacles related to the procedures for requesting the provision - which almost always refer to the residence and its certification by the registry - and for the same difficulty in identifying the place of domicile, compared to the certainty offered instead by the formal data of the registered residence.’ (my translation). 40 This point in the Court’s reasoning has been highlighted especially by Rossi (2020), spec. pp. 68–69. 36

108

A. J. Golia

also the abovementioned change in the government coalition in summer 2019, the legislator followed up on the Court’s decision and re-formulated the legal framework concerning residence registration of migrants in accordance with the principles formulated by the judgement.41 Here again, it is worth highlighting the close connection between distinct sides of the rule of law, on the one hand; and solidarity, on the other hand. Indeed, the 2018–2019 government introduced Art. 13 of the Decreto sicurezza in order to effectively blur the existing legal framework and, through an instrumentally created legal uncertainty, introduced a de facto prohibition which violated the rights recognised by both constitutional and international law.42 It did so by intervening not on the substance of such rights, but rather on the practical possibility for foreigners to invoke them before public authorities. In other words, the residence registration saga highlights the interdependence of different sides of the rule of law—the procedural and the substantive one—but also that of clear, rule-based frameworks that cannot be easily manipulated through arbitrary exercises of public authorities. At the same time, and consequently, this saga reveals that, when it comes to social benefits and rights based on the principle of solidarity, new and unreasonable fault lines may be dangerously drawn even among groups legitimately living on national territory and part of the same local community.

4 Concluding Remarks: The Italian Experience as a Benchmark for Emerging Trends in EU Law By briefly examining two cases, this chapter aimed at highlighting that, especially in the context of migration governance, ‘solidarity’ and ‘rule of law’ are not straightforward concepts, with clear and unidirectional outcomes. Instead, they are multifaceted, context- and pattern-dependent concepts that potentially lend themselves to instrumental uses which may ultimately run contrary to the rights of migrants. In particular, the cases briefly discussed in this chapter highlight the dangers related, on the one hand, to exclusionary conceptions of solidarity; and, on the other hand, to conceptions of the rule of law that do not include legal certainty and the right to

41

See Decree Law No.130, 21 October 2020. See also Canzian (2021), pp. 71–73. In the most recent literature, see only Beinlich (2022) . In the case law of the European Court of Human Rights, the point has been addressed especially in Judgment (13 October 2016), 11981/15, B.A.C. v. Greece, para. 35; and Judgment (26 April 2018), 63311/14, Hoti v. Croatia, para. 121, holding that neither Art. 8 nor any other provision of the ECHR can be construed as guaranteeing, as such, the right to the granting of a particular type of residence permit, ‘provided that a solution offered by the authorities allows the individual concerned to exercise without obstacles his or her right to respect for private and/or family life’. In particular, if a residence permit allows the holder to reside within the territory of the host country and to exercise freely there the right to respect for his or her private and family life, the granting of such a permit represents in principle a sufficient measure to meet the requirements of Art. 8. 42

Migration and the Janus Faces of Solidarity and the Rule of Law:. . .

109

access as pre-conditions for the effective enjoyment of rights recognised in constitutional and international law. This applies notably to the EU migration governance, especially if the latter is read through the lenses of its integration/constitutionalisation process. Indeed, the present considerations may be useful in both analytical and normative terms to explore and assess the broader effects of EU migration and security policies. In a context where the legal framework in place has not originally been designed as an instrument of solidarity,43 it is increasingly apparent the interplay between specific tenets of the rule of law—especially the limb concerning the access to justice—and the increasing politicisation of a governance area relevant to community-building, and thus to constitutionalisation processes. In this field, recent studies44 have demonstrated how EU institutions—especially the ECJ—reflexively shape their strategies of constitutionalisation (i.e., socio-political integration) based on distinct and ever-changing levels of juridification and politicisation perceived in given governance areas. However, the Italian case shows how certain strategies, while potentially having effects of socio-political integration/constitutionalisation, might affect the protection of migrants and other vulnerable subjects in extremely different ways. This element should be taken into consideration especially in the light of the growing legal ‘thickness’ of the principle of solidarity within EU law.45 Put differently: the Italian experience shows that ‘more’ solidarity in law does not necessarily mean, as such, higher protection and/or inclusion of migrants. Instead, the latter depends on a multiplicity of elements, including the specific conceptions of rule of law and the integrative/constitutionalising purposes to which solidarity itself is oriented.46 This, in turn, highlights the need—both in research agendas and in lawmaking—to take into consideration different conceptions of solidarity and the

43

See especially the Regulation (EU) 604/2013 of the European Parliament and of the Council establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person (‘Dublin III Regulation’), OJ L 180 (2013); and the Regulation (EU) 2019/1896 of the European Parliament and of the Council on the European Border and Coast Guard and repealing Regulations (EU) 1052/2013 and (EU) 2016/1624 (‘Frontex Regulation’), OJ L 295 (2013) . See also the accompanying report to the Proposal for a Regulation of the European Parliament and of the Council establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person (recast) (2016). 44 See again Moser and Rittberger (2021). 45 See again the case law recalled above, note 15. 46 Unsurprisingly, in recent times Italian courts have stood out for the several references for preliminary rulings to the European Court of Justice (ECJ), raised in relation to the margin of appreciation due to the judicial authority in the appeal against the decision ordering the transfer within the so-called take-back procedure under the ‘Dublin III’ Regulation (Art. 18(1) Regulation (EU) 604/2013). In the literature, see Di Pascale (2021).

110

A. J. Golia

rule of law to address the complex and multifaceted issues related to migration governance.

References Algostino A (2018) Il decreto ‘sicurezza e immigrazione’ (decreto legge n. 113 del 2018): estinzione del diritto di asilo, repressione del dissenso e diseguaglianza. Costituzionalismo.it 16:167–199 Beinlich L (2022) (forthcoming) Access to Justice. In: Binder C, Nowak M, Hofbauer J-A, Philipp J (eds) Elgar Encyclopedia of Human Rights. Elgar, Cheltenham. https://papers.ssrn.com/sol3/ papers.cfm?abstract_id=3895602 Benvenuti M (2018) Gli hotspot come chimera. Una prima fenomenologia dei punti di crisi alla luce del diritto costituzionale. Diritto, Immigrazione e Cittadinanza 1:1–37 Benvenuti M (2019) Lo strano caso Diciotti. Diritti, rovesci e argomenti in una (brutta) pagina di diritto costituzionale italiano. Costituzionalismo.it 17:35–115 Bifulco D (1999) Cittadinanza sociale, eguaglianza e forma di Stato. In: Chieffi L (ed) I diritti sociali tra regionalismo e prospettive federali. Cedam, Padua, pp 27 ff Biondi Dal Monte F, Rossi E (eds) (2020) Diritti oltre frontiera. Migrazioni, politiche di accoglienza e integrazione. Pisa University Press, Pisa Canzian N (2021) L'iscrizione anagrafica dei richiedenti asilo dopo la sentenza n. 186/2020 della Corte costituzionale. Diritto, Immigrazione e Cittadinanza 4:50–73 Ciervo A (2020) La Corte costituzionale ritorna sul c.d. 'decreto sicurezza' e dichiara illegittimo il divieto di iscrizione anagrafica nei confronti dei richiedenti protezione internazionale. Giurisprudenza costituzionale 75:2025–2033 Crouch C (2006) Post-democracy. Polity Press, Cambridge D'Acunto S, De Siano A, Nuzzo V (eds) (2017) In cammino tra aspettative e diritti. Fenomenologia dei flussi migratori e condizione giuridica dello straniero. Edizioni Scientifiche Italiane, Naples Delledonne G, Martinico G, Monti M, Pacini F (eds) (2020) Italian populism and constitutional law. Strategies, conflicts and Dilemmas. Palgrave MacMillan, Cham Di Pascale A (2021) Garanzie informative e partecipative del richiedente protezione internazionale e limiti al sindacato giurisdizionale nella procedura di ripresa in carico di cui al reg. (UE) n. 604/ 2013. Nota a margine dei rinvii pregiudiziali alla Corte di giustizia. Diritto, Immigrazione e Cittadinanza 4:272–298 Garner J-W (1924) French administrative law. Yale Law J 33:597–627 Giupponi T (2009) Quando la forma è sostanza: la riforma dell’art. 96 Cost. di fronte alla Corte costituzionale e la recente prassi delle delibere di ‘ministerialità’. Giurisprudenza costituzionale 54:3054–3064 Giupponi T (2021) La responsabilità penale dei ministri alla stregua dei principi costituzionali e della prassi. Legittima prerogativa o illegittimo privilegio? Diritto, Immigrazione e Cittadinanza 4:1–15 Golia A Jr (2017) Costituzioni, confini e attraversamenti. Brevi riflessioni sulle politiche per l’immigrazione in una prospettiva di pluralismo giuridico. In: D'Acunto S, De Siano A, Nuzzo V (eds) In cammino tra aspettative e diritti. Fenomenologia dei flussi migratori e condizione giuridica dello straniero. Edizioni Scientifiche Italiane, Naples, pp 181–215 Golia A Jr (2021) (forthcoming) Il principio di solidarietà nell’ordinamento costituzionale italiano. In: Bifulco R, Benvenuti M (eds) Trattato di diritto costituzionale. Giappichelli, Turin. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3797808 Ioannidis M (2020) Between responsibility and solidarity: COVID-19 and the future of the European economic order. Heidelberg J Int Law 80:773–784

Migration and the Janus Faces of Solidarity and the Rule of Law:. . .

111

Kirchgaessner S (2018) Matteo Salvini: from far-right fringe player to strongman leader. The Guardian (15 June). https://www.theguardian.com/world/2018/jun/15/matteo-salvini-from-farright-fringe-player-to-strongman-leader Luciani M (1992) Cittadini e stranieri come titolari dei diritti fondamentali. L’esperienza italiana. Rivista critica del diritto privato 10:208–225 Masera L (2020) Immunità della politica e diritti fondamentali. I limiti all’irresponsabilità penale dei ministri. Giappichelli, Turin Moser C, Rittberger B (2021) (forthcoming) The CJEU and EU (de-)constitutionalization— unpacking jurisprudential responses’, MPIL Research Paper Series No. 2021-09. Int J Const Law. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3805923 Penasa S (2020) The Italian way to migration: was it ‘True’ populism? Populist policies as constitutional antigens. In: Delledonne G, Martinico G, Monti M, Pacini F (eds) Italian populism and constitutional law. Strategies, conflicts and Dilemmas. Palgrave MacMillan, Cham, pp 255–276 Ronchetti L (2012) La cittadinanza sostanziale tra Costituzione e residenza: immigrati nelle regioni. Costituzionalismo.it 10:1–19 Rossi E (2010) Da cittadini vs. stranieri a regolari vs. irregolari. Considerazioni sull’evoluzione della disciplina giuridica dei non cittadini nell’ordinamento italiano. Rivista di Diritto Costituzionale 15:87–158 Rossi S (2020) Declinazioni della dignità sociale. L’iscrizione anagrafica nella sentenza n. 186/2020 della Corte costituzionale. Federalismi.it 18:143–165 Schmitt C (1973) [1932)] Legalität und Legitimität. In: Id Verfassungsrechtlichee Aufsätze. Duncker & Humblot, Berlin, pp 263–350 Schmitt C (1996) [1928] The concept of the political. University of Chicago Press, Chicago Sciarra S (2018) Solidarity and conflict. European social law in crisis. Cambridge University Press, Cambridge Sunstein C-R, Vermeule A (2020) Law and Leviathan. Redeeming the administrative state. Harvard University Press, Cambridge von Bogdandy A (2000) Gubernative Rechtsetzung. Eine Neubestimmung der Rechtsetzung und des Regierungssystems unter dem Grundgesetz in der Perspektive gemeineuropäischer Dogmatik. Mohr Siebeck, Tübingen Ziebritski C (2020) The integrated EU hotspot administration and the question of the EU’s liability. In: Kotzur M, Moya D, Sezgi Sözen Ü, Romano A (eds) The external dimension of EU migration and asylum policies. Border management, human rights and development policies in the mediterranean area. Nomos, Baden-Baden, pp 253–294

Angelo Jr Golia is Assistant Professor of Constitutional Law at the University of Trento (Italy). His doctoral thesis dealt with the responsibility of transnational corporations from the perspective of constitutional pluralism. His research interests and publications concern the relationship between legal theory and social sciences, the interaction between international and domestic law, legal and constitutional pluralism, the judicialisation of political processes and digital constitutionalism. Recent publications: Imprese transnazionali e vincoli costituzionali. Tra pluralismo e reponsabilità, FrancoAngeli 2019; A Road to Redemption? Reflections on Law & Leviathan, in: Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 82 (2022), pp. 483–500; The Concept of In-ternational Organization, in: Jan Klabbers (ed.), The Cambridge Companion to In-ternational Organizations Law, 2022, pp. 25–49 (together with Anne Peters); Digital Transformations in Public International Law (2022; ed. together with Matthias Kettemann and Raffaela Kunz).

The Impact of the EU Principle of Solidarity and the Rule of Law on Criminal Aspects of the Migrant Crisis in the Republic of North Macedonia Elena Maksimova and Angelina Stanojoska

Abstract The migration crisis has raised a number of issues across Europe that significantly threaten the rule of law. The crisis has reminded EU Member States that the external borders of countries most affected by the influx of migrants reflect a serious problem at the core of the EU. In fact, the failure to respect external border procedures is the first sign of a dysfunctional asylum system. The problems began with the non-application and non-respect of the principle of solidarity, safeguarding the human rights of migrants, refugees, and asylum seekers, and their protection against victimization or involvement in serious crimes. These problems do not only affect EU Member States, but also third, mainly transit countries. Even if the EU has made great efforts in combating irregular migration through financial assistance and the operational support of Frontex, these efforts have not been effective. On the contrary, irregular migration and migrant smuggling increased in 2020. In particular, the Republic of North Macedonia has faced many challenges in managing the migration burden, especially from a financial and operational point of view. This chapter will therefore analyze cooperation between the EU and the Republic of North Macedonia in cases of human trafficking and smuggling of migrants, and more generally, the criminalization of solidarity in the EU, toxic narratives and hate speech against migrants, the new measures for asylum seekers and migrants, and the impact on third countries.

E. Maksimova (✉) Faculty of Law, University ‘Goce Delčev’ of Štip, Shtip, North Macedonia e-mail: [email protected] A. Stanojoska Faculty of Law, University ‘St. Kliment Ohridski’ of Bitola, Bitola, North Macedonia e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 T. Russo et al. (eds.), Solidarity and Rule of Law, European Union and its Neighbours in a Globalized World 9, https://doi.org/10.1007/978-3-031-29227-9_7

113

114

E. Maksimova and A. Stanojoska

1 Introduction The migration crisis has raised a number of issues across EU countries and Europe as a whole that risk undermining the rule of law. The crisis has seriously endangered one of the most significant areas of the Treaty on European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU)—the area of freedom, security, and justice. In fact, the main purpose of the existence of the EU was and is to create an environment where human rights are effectively safeguarded, where people can move freely and safely, and where crime, racism, and xenophobia are prevented and fought through collaboration and mutual trust among Member States (Articles 3 TEU and 67 TFEU).1 However, the migration crises in Europe in the past decade and the mixed migration flows have led to skepticism and political paralysis, fear of terrorist attacks, xenophobia, and racism spreading among European citizens and political parties. The migration crisis has exposed the weaknesses of the European Asylum System with an unprecedented level of confrontation between Member States. The crisis has also exposed the failure in migration governance and generated a widespread sense of insecurity, prompting calls for border closures and repatriation. At the same time, countries on the other side of the EU borders perceive EU’s intervention as ineffective in controlling external borders and aiding Member States in the allocation and reception of asylum seekers. EU agencies at the forefront of policy implementation and the operational expansion of their mandates has led to the joint implementation of border control, returns, and the processing of asylum claims. Although these agencies have been vested with increasing executive powers—such as implementing policies alongside national officials to directly interact with refugees and migrants—this has raised several challenges for Frontex and the European Asylum Support Office (EASO), most notably independence, accountability, and respect for human rights.2 In the field of migration and asylum law, solidarity among Member States is a core element of the common policies on asylum, immigration, and external border control, together with fairness toward third-country nationals. For example, Article 80 TFEU states that migration policies shall be ‘governed by the principle of solidarity and fair sharing of responsibility’.3 The Dublin Regulation’s unequal distribution during the crisis and the fact that the EU has only adopted partial and emergency-driven solidarity implementation schemes have resulted in persistent solidarity deficits.4 The migration crisis also affected the security and political situation in the Republic of North Macedonia by creating fear in its institutions and citizens, leading to numerous problems but especially critical were the victimization and increase in 1

Gatta (2016), p. 3. Miglio (2018). 3 Marin et al. (2020), pp. 1–10. 4 Tsourdi and Bruycker (2022), p. 52. 2

The Impact of the EU Principle of Solidarity and the Rule of Law. . .

115

smuggling migrants. The fear of the consequences of this refugee crisis can be traced back to the country’s previous negative experiences with refugees, a consequence of the events in the former Yugoslavia.5 In addition, North Macedonia is a small country with a certain economic power and political stability, and is not a member of the European Union. The country’s geographic position, sharing borders with EU and non-EU countries, entails the obligation to respect international charters in relation to refugees and EU principles, but also an obligation to protect its territorial integrity and sovereignty. This means that North Macedonia has to respect international law, protect migrants, their rights, and above all its citizens. Therefore, based on the analysis of international and Macedonian national legal documents, data from the Ministry of Internal Affairs and the National Commission for Combating Human Trafficking and Irregular Migration, the question we analyze in this chapter is how the Union’s principles have been jeopardized as a result of the migration crisis, and from a criminological point of view, the problems that are threatening solidarity and the rule of law. Furthermore, we consider whether in terms of solidarity and collaboration with third non-EU countries like North Macedonia, these problems somehow reflect their security and stability in fighting transnational crime.

2 Criminal Activities and the Macedonian Response During the Migrant Crisis Although the Western Balkans have been on the EU Agenda for some time, their position changed during the migration crisis of 2015 and 2016 due to the ‘Balkan Route’, the main migratory path to the EU. The failure of the Dublin System resulted in Greece’s inability to manage the thousands of migrants that entered its territory, but also the EU’s inability to relocate them. The instability then impacted the Balkans when in 2015 and 2016 a political crisis manifested when politicians used migratory movements as a tool in their political debate. Indeed, the media mostly reported the security concerns rather than the humanitarian crisis that was taking place. Migrants and asylum seekers in North Macedonia entered through the IdomeniBogorodica crossing point and were accepted in the Vinojug camp. To recall is that entering the country and not applying for asylum meant they were illegally staying in the Macedonian territory, leading to many organized criminal groups smuggling migrants.

5

Koteski (2017), p. 180.

116

E. Maksimova and A. Stanojoska

In 2016, 108 cases of attempted smuggling of 1961 migrants were recorded. Prosecution measures have been taken against 123 perpetrators of 80 crimes of migrant smuggling.6 From 2017 to January-September 2020, a total of 71,174 attempted illegal border crossings were prevented, rising to 25,579 in 2020 alone.7 Those attempting to illegally cross from Greece into North Macedonia were mostly from Afghanistan, Algeria, Iraq, Iran, Pakistan, and Syria. During this period, the Ministry of Internal Affairs prevented the attempts to smuggle 7299 migrants. The majority of smuggled migrants were detected on Corridor 10: Gevgelija— Veles—Skopje.8 In 2019 and 2020, the road routes used for moving migrants were often in the Strumica and Stip region, as well as in Sveti Nikole, part of the transport route to Kumanovo and Skopje. A total 162 cases of smuggling migrants were detected by the authorities, most of which in 2020, as well as 18 crimes of ‘organizing a group and inciting the commission of trafficking in human beings, trafficking in minors and smuggling of migrants’ with 83 perpetrators reported. In total, only 55 people were convicted in 2020 for smuggling migrants and 12 for organizing such groups.9 In 2021, although not yet statistically determined, a significant increase in the number of registered and unregistered cases was expected.10 An important issue linked to the smuggling of migrants is their unlawful detention, their inhumane and degrading treatment, and the conditions at the detention centers. The most common reason for detention is witnessing in criminal proceedings, although in accordance with the positive legal provisions and norms, this does not constitute grounds for detention.11 The detainees do not understand the reason and the length of their detention, considering they are kept in quarantine for 25 days before being asked to testify. During that time, they have no access to legal aid, hence directly addressing their complaints to the Ombudsman of the Republic of North Macedonia. In 2020, detention for immigration reasons was still treated as part

6

Ministry of Interior (2019) Annual Report of the Ministry of Interior for 2018. https://mvr.gov.mk/ Upload/Editor_Upload//Godisen%20izvestaj%202018.pdf. 7 Ministry of Interior (27 October 2020) Decision for response to the request for free access to public information, No. 13.12-1128/5. 8 Most-used route for smuggling migrants through the country—Reception and transit center Vinojug, Gevgelija (border with Greece) ! headed to Tabanovce reception and transit center ! crossing the border with Serbia near the village of Miratovac. Entry used by smugglers for illegal crossings—Moin village, west of Vardar, or Stojakovo and Selemli villages, east of the Vardar, or through Mount Belasica. The Bogorodica border crossing point is used for smuggling migrants in passenger and freight vehicles or trains at the Gevgelija railway border crossing. 9 Data obtained from the State Statistical Office of the Republic of North Macedonia. www.makstat. stat.gov.mk/PXWeb/pxweb/mk/MakStat/MakStat__Sudstvo__ObvinetiOsudeniStoriteli/175_ SK2_Mk_T60_ml.px/table/tableViewLayout2/?rxid=1728b551-0772-4658-a25c-67e83d652785. 10 Several cases are detected and registered by the police. www.mvr.gov.mk/vest/15947. 11 See more in Veigel et al. (2017), pp. 103–119.

The Impact of the EU Principle of Solidarity and the Rule of Law. . .

117

of an administrative procedure and not reviewed by a judge after 12 h.12 In 2021, the Vinojug center continued to be used as an accommodation site for migrants and refugees detained as witnesses in criminal proceedings against their smugglers.13 Migrants and refugees traveling or being smuggled through North Macedonia are also vulnerable to other crimes, especially human trafficking. The most common victims are sex trafficked women and girls and forced labor in restaurants, bars, and nightclubs. Although not a single case of human trafficking among migrants was registered during the migrant crisis and afterwards, we presume that the numerous victims of traffickers including frontline responders focused on other more visible vulnerabilities, children travelling alone, pregnant women, people in need of medical assistance, and the elderly.14 Indeed, one consequence of the lack of attention to human trafficking among migrants is the lack of resources to identify and gather data on human trafficking among migrants. Different forms of migrant smuggling are emerging. As Carling et al. (2015) state, smuggling is characteristic of migration crises when migrants are smuggled into a country without prior permission to enter the territory, for example, by boat or plane. The increase in different forms of smuggling further blurs the line between human trafficking and smuggling of migrants.15 Another issue is the lack of cooperation of victims in the investigation process, resulting in the impossibility to identify them as victims of trafficking.

3 The EU’s Principle of Solidarity During and After the Migration Crisis: The Situation on the Macedonian Borders The migration crisis is a serious and complex socio-political and security phenomenon that has challenged European countries with serious political, economic, non-violent, humanitarian, health-medical, environmental, and other implications. The principle of solidarity, as a fundamental pillar of the European integration process, is a central value of the European Union, a fundamental objective to be achieved by its institutions and Member States, and a crucial element of the functioning of the entire European legal order. On the other hand, migration is an area that traditionally falls within the national jurisdiction of a State that has primary

Macedonian Young Lawyers Association (2020) Имиграциски притвор во Северна Македонија низ бројки (Immigration Detention in Northern Macedonia in Numbers). 13 Macedonian Young Lawyers Association (2021) Field Report 2021. www.myla.org.mk/wpcontent/uploads/2021/05/Field-Report-Q1-2021.pdf. 14 Ibid., p. 55. 15 Carling et al. (2015), p. 4. 12

118

E. Maksimova and A. Stanojoska

sovereignty and jurisdiction over its territory and population, thus the right and power to control national borders and decide on the entry and residence of foreigners in its territory. In the last decade, however, countries have been encouraged to seek mutual cooperation and solidarity, and sacrifice some of their sovereign powers and prerogatives in favor of transnational organisms and forms of cooperation in the field of migration.16 From the standpoint of a non-EU country (e.g., North Macedonia) that borders an EU country (e.g., Greece), especially in terms of the migration crisis, the EU solidarity principle in practice concerns two areas: economic and operative. While economic solidarity foresees financial support—in forms of funding, financial instruments, and monetary resources17–, operative solidarity implies supplying technical equipment or personnel needed in specific sectors, such as border control or asylum systems. In North Macedonia, the most significant example of the implementation of the principle of operative solidarity is the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (Frontex).18 In May 2015, the European Commission introduced the European Agenda on Migration with the aim of addressing the challenges related to irregular migration, borders, asylum, and legal migration. One of the aspects is cooperation between the EU and third countries in terms of dealing with the increase in migration flows.19 On 25 October 2015, the leaders of Albania, Austria, Bulgaria, Croatia, Germany, Greece, Hungary, Macedonia, Romania, Serbia, and Slovenia met in Brussels at the Commission’s Berlaymont headquarters where they adopted the ‘17-Point Plan of Action’. The Plan points out relevant steps in tackling the migrant crisis challenges along with measures to streamline the work of EU Agencies, swiftly put in place an

16

Gatta (2016), p. 6. Until 8 October 2015—under the Instrument for Pre-Accession Assistance (IPA), the EU committed approximately 24 million euros for the Republic of Macedonia to support migrationrelated activities. 12 million euros of the above stated amount were committed under IPA I for: renovation of border police stations; fight against trafficking in human beings; and strengthening police capacities for border management. On 15 February 2016, under IPA II, the European Commission adopted an additional 10 million euros program in EU assistance to support the Republic of Macedonia in ‘improving its border and migration management capabilities, including systematic border checks and border surveillance, the identification and registration of third-country nationals crossing the border in a regular and irregular fashion, and the combating and prevention of migrant-smuggling, human trafficking and cross-border crime in full respect of the rule of law and fundamental rights’; for more, see Kamberi (2020), p. 11. 18 The Agency was created under Council Regulation (EC) 2007/2004 (26 October 2004) establishing a European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union, in O.J. L 349. Art. 1(3) in defining the fundamental tasks of Frontex, explicitly states that it shall provide Member States ‘with the necessary technical support and expertise in the management of the external borders and promote solidarity between Member States’. 19 Kamberi (2020), p. 6. 17

The Impact of the EU Principle of Solidarity and the Rule of Law. . .

119

information exchange system, and strengthen the Frontex Western Balkans Risk Analysis Network, with intensified reporting by all participants. It was also agreed that Albania, Greece, and Macedonia would enhance the management of their external land borders, with Frontex supporting the registration procedure in Greece, and where appropriate, making use of the Rapid Border Intervention Team (RABIT). Following the 2015 migrant crisis, the Republic of Macedonia asked the EU for material and logistical support to effectively deal with illegal migration and offer humanitarian support to refugees. Since then, continuous international support has been provided by eight countries (Austria, Croatia, Czech Republic, Hungary, Poland, Serbia, Slovakia, and Slovenia)20 with a total 166 foreign police officers present at the Macedonian border and the cost of their stay covered by EU funds. Macedonia has been cooperating intensively with certain EU Member States and Serbia to advance its efforts in dealing with the migrant crisis since 2015 when it reached its peak. With respect to financial support, among other financial aid measures received from the EU, the largest grant awarded was €9 million for a ‘[s]pecial measure on supporting North Macedonia and other IPA II beneficiaries in the Western Balkans to improve their border and migration management capabilities in the context of the European refugee crisis’, including systematic border checks and border surveillance, the identification and registration of third country nationals crossing the border regularly and irregularly, combating and preventing migrant smuggling, human trafficking and cross-border crime, in full respect of the rule of law and fundamental rights.21 Although North Macedonia receives help at the border in dealing with irregular migration, the number of reports of violent pushbacks at the Greek-Macedonian border has increased in recent years, even while Frontex was present. Furthermore, some reports allege the presence of Frontex in these pushbacks and the violation of basic human rights of migrants and refugees, although bilateral policing deals explain the presence of foreign officers in North Macedonia.22 The border violence monitoring network (BVMN) has recorded 41 cases of pushback from North Macedonia to Greece, many of which include high levels of physical violence, verbal abuse, destruction of property, inhumane detention, and other acts amounting to torture, often carried out by national authorities apprehending and removing groups via gates in the border fence near the Greek

20 Ministry of Interior (29 December 2015) Полициски службеници од Хрватска, Србија, а наскоро и од Унгарија, Словенија и Чешка заедно со македонските полицајци на јужната граница (Police Officers from Croatia, Serbia, and Soon Hungary, Slovenia and the Czech Republic along with Macedonian Police Officers at the Southern Border). www.mvr.gov.mk/ vest/1176. 21 Euprojects.mk (March 2016) Project: Special Measure in Supporting the North Macedonia and Other IPAII Beneficiaries in the Western Balkans to Improve Their Border and Migration Management Capabilities in the Context of the European Refugee Crisis. www.euprojects.mk/maps/ report/233. 22 Jones (2021).

120

E. Maksimova and A. Stanojoska

village of Idomeni. However, this pushback regime also hinges on the involvement of multiple other national border agencies, including officers from the Czech Republic and Hungary deployed under bilateral agreements.23 These events are one of the many factors that push migrants towards organized crime groups as the only possible way of crossing borders to reach the EU. Other problems include the inadequate assessment of individual situations, no access to information, legal assistance or effective remedy, and no identification process. As a result, migrants turn to organized crime groups for help, and participate willingly in smuggling unaware that these organized crime groups and smugglers transport them in inhumane conditions, extort and molest them, to then exploit and traffic them.

4 The EU Pact on Migration and Asylum Articles 67(2) and 80 TFEU define inter-state solidarity as a legal principle underlying EU policies on border checks, asylum, and immigration. In this context, the Dublin III Regulation determines which Member State is responsible for reviewing asylum applications lodged in a Member State. However, a problem that emerged during the peak of the crisis was the inconsistent and incorrect application of this Regulation. The aim was to avoid multiple applications and ensure that each individual asylum application is considered by a Member State. According to the Dublin Regulation, the Member State responsible for examining the asylum application is the country in which the migrant first enters the European Union, in most cases frontal states with external land borders (Bulgaria, Croatia, Hungary) or sea borders (France, Greece, Italy, Malta, or Spain). Thus, in 2015 the European Migration Agenda24 was born and a readmission agreement with Turkey on persons residing without authorization.25 After years of attempting to reform the Dublin System and its numerous failures and attempts to avoid the current situation (ships that cannot anchor, paralyzed decisions for the relocation of asylum seekers, pressure on external borders, etc.) through ad hoc solutions, the European Commission, on 23 September 2020, adopted a proposal for a New Pact on Migration and Asylum,26 which would change

23

BVMN Join Statewatch in a Letter of Concern to Frontex, cit. European Commission’s Press Release (13 May 2015) Managing migration better in all aspects: A European Agenda on Migration. www.ec.europa.eu/commission/presscorner/detail/en/IP_15_4 956. 25 Agreement between the European Union and the Republic of Turkey on the readmission of persons residing without authorization, in O.J. L 134 (7 May 2014). 26 Commission staff working document (23 September 2020) accompanying the document Proposal for a regulation of the European Parliament and of the Council on asylum and migration management and amending Council Directive (EC)2003/109 and the proposed Regulation (EU)XXX/XXX, SWD/2020/207 final. 24

The Impact of the EU Principle of Solidarity and the Rule of Law. . .

121

and improve the existing regulations, and enable joint responsibility and solidarity. The intention was to reduce irregular migration to the European Union, and establish legal and safe routes for migrants and refugees in need of international protection. In this New Pact, the Commission presented a new EU Action Plan against migrant smuggling for 2021–2025 accompanied by an overview of the progress made in combating migrant smuggling in the EU, including all actions taken since the EU 2015–2020 Action Plan entered into force.27 The new document is intended to build confidence through more effective procedures, striking a balance between responsibility and solidarity, ensuring greater trust with different procedures in different locations depending on whether a person is a security risk or not, the better management of external Schengen and EU borders, effective solidarity, and enhanced international partnerships. As such, the principle of solidarity in the New Pact includes the possibility for the Commission to determine (on its own initiative or upon request) whether a national system is under pressure or at risk, and what the other Member States should do to help in terms of accepting asylum seekers in their territory, the responsibility to return asylum seekers not entitled to be in the EU, and other operational measures. What third countries gain from the New Pact is the possibility to lower the pressure on their borders, since whenever a Member State at an external EU border is under pressure or at risk, the other Member States should help in accordance with the principle of solidarity. However, the flexible options of Member States increase the pressure at external borders and third countries. Problems are also foreseen at the borders of Northern Macedonia, as the country borders Greece, which has been a transit country for many migrants in recent years and is the most convenient transit country on the Balkan route. Mandatory asylum or return procedures at the border expose asylum seekers to the risk of being subjected to poor asylum procedures, detention, immediate return of those refused asylum, and involvement in criminal activities. Although the new EU Pact places the prevention and fight against smuggling at the center of its comprehensive approach to migration,28 serious concerns arise that this will increase the risk of exploitation and human trafficking, as well as violating the rights of those exploited and trafficked. State policies that increase border control and surveillance, and restrict opportunities for safe and regular migration have created a market for irregular migration, including human trafficking and other forms of exploitation due to the increased dependence on smugglers.29

27 European Commission, Migration and Home Affairs. Errore. Riferimento a collegamento ipertestuale non valido. www.ec.europa.eu/home-affairs/what-we-do/policies/irregular-migrationreturn-policy/facilitation-irregular-migration_en. 28 Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions (29 September 2021) A renewed EU action plan against migrant smuggling (2021-2025), COM(2021) 591 final. 29 La Strada International (18 October 2020) New EU Migration Pact Increases Risks of Human Trafficking.

122

E. Maksimova and A. Stanojoska

The way in which immigration law is currently enforced often hinders access to necessary assistance and support, rendering State civil and criminal justice mechanisms inaccessible and ineffective. Indeed, The NGO ‘La Strada International’ fears that the risk of serious international crime will increase, and despite the restrictive approaches outlined above, they believe that border procedures, detentions, and forced returns will be serious risk factors triggering human trafficking and migrant smuggling. With regard to the new border procedures, La Strada International argues that the new pre-screening procedure, which will be used to identify people and decide which procedure to use afterwards, will not provide sufficient safeguards for trafficked persons. The new solutions include a preliminary medical examination and a vulnerability check, but these are not compulsory and will only be carried out when the authorities deem it necessary. There is a risk that this screening will fail to identify many vulnerabilities, including signs of trafficking. During pre-screening, people will automatically be detained for up to ten days. This raises the clear risk that protection measures will not be put in place or that they will be insufficient, as there is neither a clear obligation to act on identified vulnerabilities nor refer people to national referral mechanisms. To emphasize with regard to detention is that it is difficult for people who have been trafficked to disclose their experiences, to access specialist, independent advice and representation on trafficking, or to be correctly identified as a victim and receive specialist support. If (presumed) victims of trafficking have been forced to return to their country of origin or have been deported to other EU countries, they do not have access to their rights as victims of trafficking. This risk was even higher during the pandemic, as asylum procedures in the EU were accelerated, with limited options and very little time to thoroughly analyse their vulnerability and identify them as victims of trafficking.

5 Future Challenges For the Republic of North Macedonia, illegal and uncontrolled migration is still a serious security challenge, especially since the activation of the Balkan Route as one of the most used migration paths. Although North Macedonia is not a country of destination, and in most cases a transit country for migrants, a new mass migration movement would be an economic and security challenge for the country. Following the closure of the Balkan Route as a result of the EU-Turkey agreement, 200 migrants have been stranded in Northern Macedonia since October 2016. Although this number is not significant compared to the millions of migrants in the EU and Turkey, there is a possibility for them to remain, which is why the Government has prepared and adopted the Strategy for Integration of Refugees and Foreigners. With the help of this strategy, State institutions will know what steps to take for the successful social inclusion and integration of persons with international protection status in Northern Macedonia. The Strategy establishes a

The Impact of the EU Principle of Solidarity and the Rule of Law. . .

123

multidisciplinary Centre for the Integration of Refugees and Aliens, which will organize all activities related to the employment and training of asylum seekers. Through this center, they will be able to obtain information and access services such as housing, health, social protection, education, individual or family integration planning. During the migration crisis, the Republic of North Macedonia faced many criminal consequences and challenges to the rule of law. Although there may not have been any ‘criminalization of solidarity’30 in terms of helping people arriving in North Macedonia—as was the case in in France, Greece, or Italy—the country has introduced measures that, in addition to discrimination against migrants, fueled public hate speech towards migrants in fear of them remaining in North Macedonia. From 2014 until June 2015 when the Law on Asylum changed, illegal migrants could not use public transport,31 since they were illegally in the country as a result of not applying for asylum. As a consequence, they were forced to walk to reach Serbia, mostly using the railway lines. However, with the legal changes, when entering the country at the southern border, they were given a document entitling them to 72 h (during which they were legally in the Macedonian territory) to leave the country or apply for asylum at the nearest police station. Other problems that emerged with the closure of the Balkan Route relate to illegal crossings and criminal activities directly linked to these crossing, including smuggling of migrants and human trafficking. The lives of migrants have been endangered and their rights violated more often and more severely under the readmission agreements. The most common problem, especially during the migrant crisis, has been the practice of illegal deportation, namely the expulsion of refugees and migrants without proper procedure. According to organizations in the field, such as the Helsinki Committee of Human Rights in North Macedonia, Macedonian Young Lawyers Actitation, Macedonian Red Cross, deportation to Greece is a daily practice against the will of refugees. The same practice is used by the Serbian border police transferring refugees to the Macedonian territory either at their request or against their will.32 Although North Macedonia has amended its domestic Law on Foreigners—which regulates the status of victims of human trafficking, and now guarantees a reflection and recovery period that can last up to two months with access to protection,

30 ‘Criminalization of solidarity’ refers to the increased policing of people who help migrants, including through search and rescue operations, reception activities and the provision of food, housing and services. In particular, people helping migrants, including lifeguards, journalists, priests, volunteers and NGOs, have been portrayed and investigated as criminals; for more information, see Research Social Platform on Migration (2020) The Criminalisation of Solidarity in Europe. 31 Szpala and Jaroszewicz (2015). 32 Amet (2018).

124

E. Maksimova and A. Stanojoska

assistance, and recovery,33 as well as some other legal measures34 to combat this serious crime—the problem of implementation in practice persists for the many reasons mentioned.

6 Conclusion The Republic of North Macedonia is located in the central part of south-eastern Europe and is at the geographical crossroads between Europe, Asia and Africa, which is important for its development. From a security point of view, it is also one of the crossroads of the main routes of terrorism, illegal migration, illegal drug trafficking, illegal arms and human trafficking from Asia and Africa to Western Europe. The policies developed by the European Union and the Republic of North Macedonia have not proven particularly effective in successfully tackling the migration crisis. Despite the changes in measures and legislation, as well as all the legal and operational mechanisms put in place to prevent and combat the criminal consequences, Northern Macedonia still remains a country through which migrants pass mostly illegally and with the help of organized criminal groups. The aim of migrants crossing the Balkan Route is to reach EU countries. Those who are smuggled through Northern Macedonia are often exploited by perpetrators in an EU Member State, turning smuggling into human trafficking that is not detected early in the transport process. In fact, the migration crisis is not yet over, and its incomplete resolution means weakening the rule of law and leaving room for abuse in the future. While it is clear that the rights and freedoms of thousands of migrants have been repeatedly violated during the crisis, especially since the closure of the Balkan Route, formal remedial procedures are lacking. Migrants see the country only as a transit area: they do not stay long enough to cooperate with law enforcement in any proceedings. They use all possible means to continue their journey, even at the cost of their rights being violated and their lives being endangered. The systematic refoulement of refugees to Greece and the absence of an appropriate and effective procedure and related safeguards have deprived those concerned of any remedy that

33

Law on foreigners, Official Gazette of the Republic of Macedonia Nos. 97/2018 and 108/2019. For example, National Commission for Combating Human Trafficking in Human Beings and Illegal Migration (May 2016) Indicators for Initial/Preliminary Identification of Presumed and Potential Victims of Trafficking in Human Beings in the Context of Mixed Migration Flows. www. rm.coe.int/16806ed5a5; National Commission for Combating Trafficking in Human Beings and Illegal Migration (2017) National Strategy and the National Action Plan to Combat Trafficking in Human Beings and Illegal Migration for the Period 2017-2020, English version at pp. 70–107. www.nacionalnakomisija.gov.mk/wp-content/uploads/2016/12/Nacionalna-strategija-i-akciskiplan-za-borba-protiv-trgovija-so-lugje.pdf; Government of Republic of Macedonia (4 July 2017) Action Plan 3-6-9. www.vlada.mk/sites/default/files/programa/2017-2020/Plan%203-6-9%20 MKD.pdf. 34

The Impact of the EU Principle of Solidarity and the Rule of Law. . .

125

would have enabled them to apply for asylum or lodge a complaint with the competent authority and obtain a thorough and rigorous assessment of their situation. Thus, more and more migrants who opt for the least resistance to reach their desired destination are turning to organized criminal groups. The number of cases of migrant smuggling uncovered during the migration crisis and the suspicions of a high number of shadowy cases of both migrant smuggling and human trafficking suggest that the legal and operational mechanisms to deal with future waves of migration must be strengthened. The Republic of North Macedonia, with its action mechanisms, has planned several crisis management programs within the framework of the Common Foreign and Security Policy, which include police missions, civil protection activities, civil administration, and rule of law missions. All these missions are subject to monitoring and analysis by special representatives of the State itself and its institutions. The huge influx of refugees from Greece, clearly unable to contain them, brings the security aspect to the fore. The problem is further complicated by the absence of a clearly defined European Union strategy for effectively dealing with the reception and care of refugees. The New Pact does not solve this problem for third countries, and although calling for greater cooperation (which is not compulsory), does not commit EU countries to any formal agreements with third countries, such as North Macedonia, while informal agreements pose a serious risk of human rights violations. Without proper cooperation and more help from the EU than has been given so far, Northern Macedonia could face the same problems as in the past, or worse. Preventing the victimization of migrants and the violation of their fundamental rights must be a priority in dealing with future crises, and basic human rights and needs must be respected, which is impossible unless the EU shows solidarity towards third countries. Without effective solidarity, it will not be possible to implement the rule of law in the near future. Development aid, economic cooperation, and support for science, education, digitalization and energy issues are also areas where assistance is needed, along with ongoing registration procedures and the prevention of border crimes. North Macedonia alone does not have the capacity to strengthen these areas to cope with a future migration crisis. According to Grieveson,35 to ensure effectiveness, the EU must also reconsider its efforts closer to home, such as the Western Balkans, since the development initiatives, including a strong focus on regional economic cooperation, have thus far yielded rather unsatisfactory results.

35

Grieveson et al. (2020).

126

E. Maksimova and A. Stanojoska

References Amet S (2018) Годишен извештај за 2018 правата на бегалците, мигрантиte и барателите на азил во Република Македонијa (Help on the Route, Annual Report for 2018 Refugee Rights, Migrants and Asylum Seekers in the Republic of Macedonia). Helsinki Committee for Human Rights of the Republic of Macedonia, Skopje. www.mhc.org.mk/wp-content/uploads/2019/07/ Help-On-Route-MK-2018-final.pdf Carling J, Gallagher A, Horwood C (2015) Beyond definitions: global migration and the smuggling-trafficking Nexus. Regional Mixed Migration Secretariat, Nairobi. www.ssrn.com/ abstract=3014244 Gatta FL (2016) The EU facing migration challenges: the principle of solidarity as the necessary guiding light to manage the crisis. Institute of European Democrats, Brussels. www.iedonline. eu/download/2016/schengen/GATTA.pdf?m=1466501183& Grieveson R, Holzner I, Pichler M, Vukšić G (2020) Pushing on a string? An evaluation of regional economic cooperation in the Western Balkans. Bertelsmann Stiftung, Gütersloh Jones C (2021) Foreign Agents and Violence Against Migrants at the Greek-Macedonian Border. Statewatch.org (8 June). www.statewatch.org/analyses/2021/foreign-agents-and-violenceagainst-migrants-at-the-greek-macedonian-border/ Kamberi (2020) Tackling the Migrant Crisis in the Republic of North Macedonia, overview of the country’s efforts and of the cooperation with Frontex and EU Member States in countering illegal migration. European Policy Institute, Skopje Koteski G (2017) Impact of the migrant-refugee crisis on the situation in the Republic of Macedonia, Proceedings of the conference geopolitical and geostrategic position of the Republic of Macedonia Amidst the Migrants and Refugee Crisis. Macedonian Academy of Science and Arts Center for Strategic Research, Skopje Marin L, Penasa S, Romeo G (2020) Migration crises and the principle of solidarity in times of Sovereignism: challenges for EU law and polity. Eur J Migrat and Law 22(1):1–10 Miglio A (2018) Solidarity in EU asylum and migration law: a crisis management tool or a structural principle. Cambridge University Press, Cambridge Szpala M, Jaroszewicz M (2015) Macedonia and the Migrant Crisis. Ośrodek Studiów Wschodnich (26 August). www.osw.waw.pl/en/publikacje/analyses/2015-08-26/macedonia-and-migrantcrisis. Tsourdi E, De Bruycker P (2022) The evolving EU Asylum and Migration Law. In: Tsourdi E, De Bruycker P (eds) Research handbook on EU Migration and Asylum Law. Edward Elgar Veigel C, Koshevaliska O, Tushevska B, Nikodinovska Krstevska A (2017) The ‘Gazi Baba’ reception centre for foreigners in Macedonia: migrants caught at the crossroad between hypocrisy and complying with the rule of law. Int J Human Rights 21(2):103–119

Elena Maksimova is Assistant Professor in Criminal Law and Criminology, and also Vice-Dean for education at the Faculty of Law, University Goce Delcev-Stip. Maksimova has finished her Bachelor, LL.M and PhD Studies at the Faculty of Law ‘Iustiniaus Primus’, St. Cyril and Methodius University in Skopje. In 2018 she defended her doctoral thesis entitled ‘Criminality of women in the period 2005–2015, with emphasis on the victimological aspects’ at the same faculty. From 2012 is working as teaching assistant at the Faculty of Law, Goce Delcev University in Stip, Republic of Macedonia, in a criminal law and criminology field. From February 2019 she was elected as Assistant Professor at the same faculty. From September 2019, she was appointed as a ViceDean for education. She is also a trainer of students for moot court competition in practical ECHR knowledge and European Convention of Human Rights. Her narrower field of interest is crime committed by women and domestic violence, and for the last 7 years she has been permanently following the migrant crisis and its criminological aspects, participating in a series of international projects with a group of researchers, analyzing the

The Impact of the EU Principle of Solidarity and the Rule of Law. . .

127

criminological consequences of the crisis. She has several publications in the area of migrant smuggling and human trafficking, holds lectures and participates in round tables. Elena Maksimova has attended plenty of conferences, seminars and training. She has also been included in some projects, and has many publications, as an author or coauthor in national and international journals. Angelina Stanojoska is PhD and Associate Professor at the Faculty of Law, ‘St. Kliment Ohridski’ University – Bitola, Republic of North Macedonia. She graduated at the Police Academy - Skopje (2008), obtained her MSc in Criminology and Criminalistics at the Faculty of Security Skopje (2011) and her PhD in Security Sciences also at the Faculty of Security - Skopje (2014). During 2016 she received a staff mobility grant from the Erasmus Mundus Basileus V Program and used the grant at the Faculty of Law, Lund University. From May 2018 she continued her postdoctoral research in the area of female criminality at the Max Planck Institute for Crime, Security and Law, Department of Criminology. Professor Stanojoska is a Fulbright Alumni and in 2021 has been a Fulbright Visiting Scholar at the Department of Criminology and Criminal Justice at UMSL, USA, where she was working on her postdoctoral research about GST and substance abuse. Her expertise is in the area of criminology, especially female criminality, violent crimes and human trafficking. The latest researches she has conducted are directed towards the analysis of the Agnew’s General Strain Theory and female criminals and inmates which has won the Young Criminologists Award from UNODC and ISC in 2019; strain and negative emotions in connection to homicides committed by women; and feminist pathways and homicides committed by women for Springer.

Solidarity and the Externalization of EU Migration and Asylum Security: A Dual Concept? Ana Nikodinovska Krstevska

Abstract The chapter examines the European Union principle of solidarity in the context of the externalization of EU security in the areas of asylum and migration. In particular, it explores whether EU solidarity could be perceived as a new concept of the externalization of EU security beyond its borders, namely a dual concept. Considering EU solidarity against the backdrop of Member States’ practices that emerged during the 2015 migrant influx and created a solidarity crisis within the EU, we define the concept of the externalization of security in EU policy and the nexus between security, asylum, and migration. Finally, we develop a common framework of EU solidarity and security externalization in the field of migration and asylum to illustrate the congruence of these two concepts in the case of North Macedonia.

1 Introduction In 2015 alone, EU borders registered 1,046,599 migrants and refugees,1 significantly affecting EU frontal countries and literally overstretching their capacity to cope with the great number of asylum applications submitted to their systems. This refugee crisis has had deep repercussions on the EU, creating a near-collapse of the asylum and migration system, as well as a great divide among EU Member States, especially those that opposed the system (such as the Visegrád Group,2 the Baltic States, and 1

Statistical data reported from the Annual Report 2015 of the International Organization of Migration, see International Organization of Migration (2015). 2 The Visegrád Group is a grouping of four states from Central Europe (Hungary, Poland, Czech Republic, and Slovakia) called also V4 countries, formed in 1991 with the purpose to get closer to Europe and to enter the European Union and NATO. They have common interest that stem from their geographical location and cultural proximity, and after their entry into the EU, they continued to promote their interest on an EU level. In the context of the migration crisis and in reference to the sharing of responsibility and solidarity between Member States of the EU, the V4 countries A. Nikodinovska Krstevska (✉) Department of International Relations and EU Law, Faculty of Law, University ‘Goce Delčev’ in Štip, Shtip, North Macedonia e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 T. Russo et al. (eds.), Solidarity and Rule of Law, European Union and its Neighbours in a Globalized World 9, https://doi.org/10.1007/978-3-031-29227-9_8

129

130

A. Nikodinovska Krstevska

Spain) and the most exposed Western European frontline countries, such as Greece and Italy.3 According to Art. 13 para. 1 of Regulation (EU) N. 604/2013 related to the criteria and mechanisms for determining the Member State responsible for examining claims for international protection, the countries of first arrival of irregular migrants from a third country are responsible for examining their asylum claims. As a result, the structural problems of the Common European Asylum System were brought to the fore, highlighting its shortcomings, calling solidarity and the delegation of responsibility among EU Member States into question.4 Initially, Germany suspended the Dublin transfers of Syrian asylum seekers registered in Greece in order to channel new asylum claims from Syrians registered there.5 This policy gave rise to massive secondary movements of irregular migrants and refugees, putting in place a long human corridor of people headed from Greece through the Western Balkans to Germany. Shortly after the enthusiastic German open-door policy, Europe evidenced a domino effect of border closures for irregular migrants along the Balkan Route, accompanied by the introduction of firmer border controls, restrictive admission rules, and daily ceilings of entries for asylum seekers. This chain reaction not only put at stake humanitarian responses to migrants and refugees along the Balkan Route, but also challenged the entire Schengen system and freedom of movement within the EU. Various attempts were made to assure solidarity and equal sharing of responsibility for asylum seekers among EU Member States. In line with Council Decisions 2015/1523 and 2015/1601 for the resettlement of asylum seekers from Greece and Italy,6 the EU attempted to alleviate the burden

criticized EU’s migration policy as insufficient and did not agree with the system of mandatory redistribution of asylum seekers according to set quotas. They openly refused the quota system imposed by the Council (see Council decisions 2015/1523 and 2015/1601 for resettlement of asylum seekers from Greece and Italy, infra footnote n.6) but, agreed with the establishment of the European Border and Coast Guards and the implementation of the joint EU – Turkey Action Plan, Baureová (2018), pp. 99–120. 3 Ibid., pp. 102–103. These are the two states that were majorly exposed to the pressure of the migrant crisis in 2015–2016. Precisely, in 2015 Greece registered the arrival of 856,726 migrants, while in 2016 the number was 173,723 migrants. See Operational Data Portal for Greece – UNCHR. Concerning Italy, the numbers for 2015 point out 153,842 migrants arrived on the Italian coast, and in 2016 the number of arrived irregular migrants by sea was 181,436. See Operational Data Portal for Italy – UNCHR Operational data portal – UNCHR. 4 See Russo (2021), Morgese (2020), Morano-Foadi (2017) and Garcés-Mascareñas (2015). 5 The suspension of the Dublin transfers was initiated by Germany in relation to Syrian asylum seekers, so that Germany could become the Member State responsible for processing their asylum claims. This permitted to revoke the already enforceable return orders for Dublin transfers towards other countries, and to permit to Syrian asylum seekers to bypass the Dublin procedures and to directly examine their asylum claim, see Dernbach (16 August 2015). 6 On the grounds of the European Council meeting on the 25 and 26 June 2015, where Member States committed themselves to reinforce solidarity and responsibility in the EU, among other needs was advanced the necessity to relocate and resettle applicants in clear need of international protection from frontline countries, Greece, and Italy to other EU Member States. Consequently, the Council adopted Decision (EU) 2015/1523 of 14 September 2015 establishing provisional measures in the area of international protection for the benefit of Italy and of Greece (Official

Solidarity and the Externalization of EU Migration and Asylum Security:. . .

131

of the high number of asylum seekers and redistribute them among Member States according to fair quotas. However, despite initial agreement, certain Member States, particularly countries from the Visegrád Group, refused to accept any relocation quota of asylum seekers on their territory7 and challenged the Council’s decision in the European Court of Justice (ECJ).8 However, EU efforts to tackle the migration crisis did not produce concrete results. On the contrary, the failure to assure solidarity among Member States,9 together with the restrictive border measures implemented by countries towards migrants and refugees at borders, bilateral police cooperation in border management with countries along the Balkan Route, and the enhancement of the Frontex mandate and other activities,10 showed that instead of converging towards the root causes to tackle migration and improve solidarity, the EU and Members States changed focus to increase the securitization of migration and asylum issues, externalizing asylum and migration policies essentially through cooperation with third countries.11 Furthermore, immediately after the end of the migration crisis, the EU was hit by a series of terrorist attacks in different cities, killing hundreds of people throughout the EU. The authors of the attacks were identified as irregular migrants that entered Europe with the migrant influx in 2015.12 This situation marked a turning point and was used as a further pretext to raise security concerns in the EU asylum and migration policy. In practice, the fight against terrorism was no longer seen as purely a security and defense issue, but a variety of issues falling within the scope of asylum and migration policy. As a result, asylum and migration have come to be seen as strongly linked to the EU’s internal and external security. 13

Journal of the European Union L 239/146 from 15.9.2015), by which it established the quota of 40,000 applicants in need of international protection to be relocated to other Member states in favor of Greece and Italy. In the same manner, the Council adopted Decision (EU) 2015/1601 of 22 September 2015 establishing provisional measures in the area of international protection for the benefit of Italy and Greece (Official Journal of the European Union L 248, 24.9.2015), establishing a further quota of 120,000 applicants in need of international protection to be relocated to other Member states. 7 See Russo (2021), pp. 285–292. 8 Recalling for annulment of the Council Decision 2015/1601/1, Slovakia and Hungary filed a complaint in front of the Court of Justice of the European Union, to which also Poland adhered, supporting the position that the legal base for the Council’s Decision was inappropriate and contrary to the Union procedures. Idem, pp. 286–287. 9 See infra, Sect. 2. 10 See infra, Sect. 4. 11 See infra, Sect. 3. 12 For example, the Syrian refugee Ahmad al Muhammad who was one of the three terrorists who blew themselves at the Stade de France, Paris in November 2015, according to one statement of the French Ministry of Interior was allowed to enter Greece on 3 October 2015 holding an emergency passport. He moved to North Macedonia, Serbia, Croatia and then eventually arrived in France. The other two terrorist held a false Turkish passport, see Amanpour and Patterson (15 November 2015). 13 See Mogherini (2017).

132

A. Nikodinovska Krstevska

Drawing on scholarly research on asylum, migration, and solidarity, EU normative theories, and the externalization of security, this chapter aims to examine the principle of EU solidarity and its relationship with the externalization of security in EU asylum and migration policy. Specifically, we examine whether solidarity could foster a new concept of the externalization of EU security beyond EU borders, and consequently, its dual nature. To this end, in the next section, we consider the principle of solidarity, defining its contractual foundations within the EU against the background of the practices of Member States during the migrant influx that created a solidarity crisis in the EU and dismantled the equitable sharing of responsibility. Thereafter, we define the concept of security externalization in EU policy, establishing the nexus between security, asylum, and migration in the theoretical perspective of different conceptions of asylum and migration externalization according to European integration, foreign policy, and security studies. We then outline the EU instruments aimed at externalizing asylum and migration policies toward third countries, developing a common framework of the concepts of EU solidarity and security externalization in the area of migration and asylum to identify their convergence in the case of North Macedonia. Finally, we explore the externalization activities toward North Macedonia through three forms of agency: the European integration process, bilateral cooperation between North Macedonia and EU Member States, and cooperation with Frontex.

2 Drawing the Line on Solidarity in the European Union: What Are the Odds? EU solidarity has different connotations according to the objectives pursued.14 In particular, according to Art. 2 TEU relative to the fundamental values of the EU, ‘The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities’. These values are common to Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity, and equality between women and men prevail. Art. 3 para. 3 TEU promotes ‘[. . .] solidarity between generations and protection of the rights of the child’, but also ‘[. . .] promote(s) economic, social and territorial cohesion, and solidarity among Member States’. Similarly, Art. 24 para. 3 TEU foresees that, ‘The Member States shall support the Union’s external and security policy [. . .] in a spirit of loyalty and mutual solidarity [. . .] The Member States shall work together to enhance and develop their mutual political solidarity’, in other words, external action guided by the principles of equality and solidarity (Art. 21 para. 1 TEU). Furthermore, Art. 4 para. 3 states, ‘Pursuant to the principle of sincere cooperation, the Union and the Member States shall, in full mutual respect, assist each other in carrying out tasks 14

See more in Morando-Foadi (2017), pp. 1–27; and McDonough and Tsourdi (2012), pp. 1–45.

Solidarity and the Externalization of EU Migration and Asylum Security:. . .

133

which flow from the Treaties’ and ‘refrain from any measures that could jeopardize the attainment of the Union’s objectives’. Title VII, Art. 222 TFEU prescribes that in case of a terrorist attack or a natural man-made disaster, the Union and its Member States shall act jointly and in the spirit of solidarity, mobilizing instruments including military resources made available by Member States. Finally, in the Charter of Fundamental Rights of the EU (CFREU) in Chapter IV (Art. 27 – Art. 38), solidarity acts in support of different rights prescribed within the Charter.15 Concerning asylum and migration, solidarity is foreseen in three Treaty foundations. The first is in the area of freedom, security, and justice, whereby Art. 67 para. 2 TFEU prescribes that the common policy on asylum, immigration, and external border control should be based on solidarity between Member States. The second contained in Art. 80 TFEU in relation to asylum, migration, and border control, establishes that, ‘The policies of the Union [. . .] and their implementation shall be governed by the principle of solidarity and fair sharing of responsibility, including its financial implications, between the Member States. Whenever necessary, the Union acts adopted. . . shall contain appropriate measures to give effect to this principle’. This formulation, albeit qualifying solidarity and the equal sharing of responsibility as a principle, does not represent an autonomous legal basis for the adoption of secondary acts of the Union, nor does it impose precise obligations on EU institutions and Member States.16 In a further reading of TFEU, we find the third foundation of solidarity in asylum and migration, whereby Art. 78 para. 3, states, ‘In the event of one or more Member States being confronted by an emergency situation characterised by a sudden inflow of nationals of third countries, the Council, on a proposal from the Commission, may adopt provisional measures for the benefit of the Member State(s) concerned. It shall act after consulting the European Parliament’. Based on these clauses, and following the Refugee crisis in 2015, the Council adopted Decisions 2015/1523 and 2015/1601 establishing provisional measures in the area of international protection for the benefit of Italy and Greece, temporary measures that foresaw the commitment of Member States to relocate applicants in need of international protection from Greece and Italy.17 Indeed, Member States were committed to relocating 160,000 applicants in 24 months from these frontline countries overburdened by the unprecedented flow of migrants and applicants in search of international protection. These decisions were intended to achieve fair burden-sharing between Italy, Greece, and the other Member States.18 Nevertheless, Poland, Hungary, and the Czech Republic refused to implement the Council decisions, filing a complaint before the ECJ, contending that the decisions were adopted on an inappropriate legal basis, misinterpreting the procedures, and violating the

15 See Charter of Fundamental Rights of the European Union, Official Journal of the European Communities C364/1 from 18.12.2000. 16 See Morgese (2020), pp. 16–47. 17 Supra footnote 6. 18 See Russo (2021), pp. 281–304.

134

A. Nikodinovska Krstevska

principle of proportionality (Art. 5 para. 4 of the Treaty of the European Union— TEU).19 Following their opposition, the Commission filed an infringement procedure before the ECJ, and the Court in the Joined Cases C715/17, C718/17, and C719/17 Commission v Poland, Hungary and the Czech Republic on 2 April 2020 ruled against these countries, finding them non-compliant with the temporary mechanism for the relocation of applicants for international protection, and thus in violation of their obligations under EU law.20 With regard to secondary legislation and its relationship with the principle of solidarity, the biggest departure from solidarity in the area of asylum and migration is the Dublin System, which has been criticized many times by Member States on the front line.21 In particular, Art. 13 para. 1 of Regulation (EU) N. 604/2013 related to the criteria and mechanisms determining the Member State responsible for examining a claim for international protection (Dublin III Regulation), prescribes that ‘[. . .] on the basis of proof or circumstantial evidence as described in [. . .] Article 22(3) of this Regulation, including the data referred to in Regulation (EU) No 603/2013, that an applicant has irregularly crossed the border into a Member State by land, sea or air having come from a third country, the Member State thus entered shall be responsible for examining the application for international protection’. Therefore, the burden for assessing applications for international protection falls within the competence of the Member State where the applicant irregularly entered the territory of the European Union, most often frontline States. This legal formulation is a key pillar of the EU asylum and migration system, which over the years has caused significant problems for EU frontline countries, such as Italy, Greece, Spain, Malta, and Cyprus, but also Hungary and Croatia. Aside from Greece and Italy, among the countries most affected by the migrant influx in 2015/2016 was Hungary,22 a frontline country bordering Serbia (outside the EU) that received around 174,000 asylum applications in 2015 alone.23 Instead, the United Kingdom, which at the time was still in the EU, received only 39,000, and France 71,000.24 This difference in numbers burdening Hungary was probably one of the reasons it opposed executing the two Council decisions for the relocation of applicants for international protection. Indeed, the Council imposed that Hungary would also have to receive asylum applications from Greece and Italy. In reality, Hungary in 2015 already had the highest number of asylum applications, namely 1700 per 100,000 population compared to the UK with 60 and France with 110 applications per 100,000 population. These disparities were the reason that frontline countries sought a fairer sharing of responsibilities among Member States in the first place, supporting the idea of new regulations that would reflect an equal 19

Ibid., pp. 286–287. Ibid. 21 See Carta (2018), pp. 1–24. 22 See more in Garcés-Mascereñas (2015). 23 Pew Research Center (2016). 24 Ibid. 20

Solidarity and the Externalization of EU Migration and Asylum Security:. . .

135

division of competences for examining applications for international protection to be redistributed throughout the whole EU territory.25 Nevertheless, the high number of asylum applicants and daily influx of migrants pushed countries to closing their borders, suspending the Schengen Borders Code, and imposing different restrictive measures for irregular migrants and refugees, calling respect of the principle of non-refoulement into question.26 The introduction of a restrictive admission policy for migrants and asylum seekers at the borders of individual EU countries,27 which limited entry to migrants from Syria, Iraq, and Afghanistan,28 considerably undermined solidarity. Additional restrictive measures followed. To cite but a few, Austria imposed a ceiling of daily entries to 2500 migrants,29 Hungary limited the daily examination of asylum claims to 100 applications,30 hard borders and electric fences were erected on the borders between Hungary, Serbia, and Croatia,31 new bilateral forms of migration and asylum cooperation were put in place along the Balkan Route,32 illegal pushbacks became a common practice.33 In sum, a series of practices were implemented by Member States that significantly distanced the EU’s asylum and migration policy from solidarity enshrined in the Union treaties. However, the Commission made efforts to alleviate the crisis and overcome the shortcomings of the system. For example, on 17 November 2015, the European Commission convened the leaders of countries concerned and affected by the migration influx along the route (Albania, Bulgaria, Croatia, North Macedonia, Germany, Greece, Hungary, Romania, Serbia, and Slovenia)34 with the aim of improving cooperation and consultation, but also to ensure the humane treatment of migrants and avoiding a humanitarian tragedy along the Balkan Route. The countries agreed to adopt pragmatic operational measures that would tackle the refugee crisis in the region, and in a 17-point Action Plan agreed to address the emergency by implementing operational measures concerning the permanent exchange of information between the countries, limiting secondary movements, supporting refugees, providing shelter and rest, jointly managing the migration flow and borders, preventing and combat smuggling and trafficking, providing information on the rights of refugees and migrants, and monitoring.35 However, the meeting in Brussels seemed to produce quite the opposite effect concerning the

25

See more in Carta (2018), pp. 2–9. See Nikodinovska Krstevska (2022), pp. 120–126. 27 UN News (23 February 2016a). 28 BBC (16 September 2015a); BBC (22 February 2016b); NY Times (23 February 2016). 29 BBC (17 February 2016a). 30 UNHCR (May 2016). 31 BBC (6 August 2015b). 32 See Drangovski (2019). 33 Macedonian Young Lawyers Association (April 2017). 34 European Commission (25 October 2015). 35 Ibid. 26

136

A. Nikodinovska Krstevska

humanitarian issue of migration, whereby immediately after the meeting, States along the Balkan Route started implementing restrictive measures for migrants and refugees. In 2016, the Commission came up with a legislative proposal, the so-called Dublin IV Regulation, which contained amendments to the Dublin III Regulation. Although the proposal acknowledged that the current Dublin System had flaws concerning the fair share of responsibility, it did not foresee any significant changes to the ‘first country of arrival clause’ or the ‘sustainable sharing of responsibility’ for asylum seekers across the EU.36 Instead, the Commission attempted to introduce a corrective mechanism for the allocation of asylum seekers that would somehow alleviate pressure on frontline States.37 The proposal did not see the light of the day, because it was not approved by EU institutions due to lack of consent. Consequently, the Commission withdrew it and instead proposed a new reform package in September 2020, the New Pact on Asylum and Migration,38 foreseeing some novelties in the EU migration and asylum system, but not revolutionary changes in terms of the existing Dublin Regulation.39

3 The Concept of ‘Externalization’ of EU Security in Migration and Asylum and the EU’s External Dimension in Migration and Asylum ‘Externalization’ has different meanings depending on the field in question. The Merriam-Webster online dictionary defines it as: (1) the action or process of externalizing, or b) the quality or state of being; and (2) something externalized: embodiment.40 In the field of psychology, externalization refers to a defense mechanism in which aspects of the unconscious are attributed to the outer world.41 In the field of economics, it is the transfer of a business function to an external entity, requiring a degree of coordination and trust between the outsourcer and the external entity.42 In the field of European integration theories, EU foreign policy analysis, and security 36

Amnesty International (25 November 2016). The mechanism was supposed to be operative whenever a Member State would find itself in front of a big number of applications for international protection for which it is responsible, so that in case this number exceed 150% of the threshold identified in the reference key, which is calculated in base of the size of the population and the economy of a Member State. See more in Morgese (2020), pp. 21–22. 38 See more in Pasquale (2020) or consult the package documents of the New Pact on Asylum and Migration directly on: https://ec.europa.eu/info/publications/migration-and-asylum-package-newpact-migration-and-asylum-documents-adopted-23-september-2020_en. 39 For more info see Gazi (2021), Pasquale (2020), Morgese (2020) and Russo (2021), pp. 29–303. 40 See Merriam-Webster Online Dictionary (2021). 41 Matsumoto (2009), p. 199. 42 See Rijpma and Cremona (2007), p. 12. 37

Solidarity and the Externalization of EU Migration and Asylum Security:. . .

137

studies, externalization refers to security in asylum and migration. In the literature on European integration theories and foreign policy analysis, based on EU normative theories, externalization is defined as the ‘capability of the European Union to shape concepts and perceptions of what is thought to be ‘normal’ in international relations’,43 and the capability for setting and shaping the rules of the game in EU’s international relations with third countries.44 These definitions broadly outline the concept of Europeanization and the different processes through which the Union spreads its values, principles, and policies toward third states and shapes their international and/or domestic behavior. Instead, when looking at the concept of externalization of security in asylum and migration through the prism of EU security studies, it assumes a different meaning from external governance in soft security issues,45 bridging internal and external security,46 externalization of security threats,47 European security vs. securities,48 internal-external security nexus,49 externalization of borders in migration crises,50 extra-territorialization or policing borders at distance in the migration context,51 managing migration abroad,52 among others. Eriksson and Rhinard, for example, sustain that the relationship between external and internal security lies in the changing nature of threats that range from crime, civil protection, law and order inside the state associated with ‘internal security’, and defense as deterrent among States linked to ‘external security’, becoming more complex in the modern society, and including real dangers with a transboundary dimension traditionally excluded from public agendas.53 These security domains, in their view, should be understood and problematized as a precursor of studying their effects on policies, politics, perceptions, and polities. While Eriksson and Rhinard focus on the internal repercussions that these transboundary threats have on the EU, Lavanex and Wichmann54 consider the external projection of internal EU policies in a new type of foreign policy, usually referred to as the ‘external dimension’ of a policy field, as in Justice and Home Affairs (JHA), where cooperation within the EU has involved third countries.55 In concrete, the concept of ‘external governance’ is used to analyze the (selective) extension of EU norms, rules, and policies in general,

43

See Manners (2002). See Keukeleire (2002). 45 See Lavanex (2004). 46 See Duke and Ojanen (2007). 47 See Mounier (2007). 48 See Burgess (2009). 49 See Eriksson and Rhinard (2009) and Brandão (2015). 50 See Ruhrmann and FitzGerald (2016). 51 See Rijpma and Cremona (2007). 52 See Parkes (2016a, b). 53 See Eriksson and Rhinard (2009), p. 245. 54 See Lavanex and Wichmann (2008), p. 84. 55 See Lavanex (2006). 44

138

A. Nikodinovska Krstevska

expanding the scope of EU rules beyond its borders,56 and shifting the institutional legal boundary beyond Member States.57 Mounier defines externalization as externalizing relevant internal policies to tackle threats before they reach the EU territory,58 and in the same direction, Gammeltoft-Hansen and Hatheway depict the externalization of migration as ‘contactless controls’ that foresee a new toolbox of ‘consensual containment’ practiced by third countries on behalf of or for the benefit of European States to reduce the number of arrivals in Europe, fomenting migration pre-emption logics far beyond physical borders. For these authors, this is a policy of controlling migratory movements through ‘cooperative deterrence’, whereby countries at different points of the displacement line align their policies, more or less formally and directly, to repel and dissuade unwanted flows even before they occur.59 Last but not least, an interesting and emerging definition of externalization derives from the Italian non-governmental sector and used in journalistic jargon to refer to subcontracting the management of EU borders to thirds states. 60 Here, the NGO sector criticizes the EU in the migration context, stating that the EU is misusing cooperation and aid policy funds to ‘help people at their home’ and force African states to collaborate in closing their frontiers and readmitting expatriates unwanted in the EU. Turning to the EU asylum and migration policy and its external dimension, cooperation in asylum and migration originated outside the European Union framework. Drawing on the premises of the Schengen Agreement (1985) and the Dublin Convention (1990) signed by EU Member States based on abolishing checks at internal borders and freedom of movement therein, cooperation in asylum and migration followed naturally to assure the foundations of the unique European space. Following the Treaty of Maastricht, asylum and migration entered the third pillar of the Union, but still with intergovernmental decision-making elements. Consequently, the Amsterdam Treaty communitarized migration and asylum with the purpose of facilitating the free movement of people and create an ‘Area of Freedom, Security and Justice (AFSJ)’ (Title IV EC related to visas, asylum, immigration, and other policies related to the free movement of people), transferring issues of asylum and migrations from the third to the first EU pillar.61 Under the Lisbon Treaty, asylum, immigration, border control, judicial cooperation in civil and criminal matters, and police cooperation were fully integrated into the TFEU (Arts. 78, 81, 82 and 87 TFEU), setting the AFSJ objective without internal frontiers where the free movement of people would be ensured in conjunction with appropriate measures with respect to external border control, asylum, immigration, and the

56

See Lavenex and Schimmelfenning (2009). See Lavanex (2004), p. 683. 58 See Mounier (2007). 59 Gammeltoft-Hansen and Hathaway (2015), Moreno-Lax and Giuffré (2019), p. 83, Papastavridis (2020), pp. 8–9. 60 ARCI (2016). 61 Keukeleire and Delreux (2014), pp. 232–233. 57

Solidarity and the Externalization of EU Migration and Asylum Security:. . .

139

prevention and combating of crime (Art. 3 para. 2 TEU).62 The first acknowledgment of the need to create stronger external relations in the field of JHA was foreseen in the 1999 Tampere Council, while the possibility of cooperation with third countries was introduced with the Amsterdam Treaty (1999) in parallel with incorporating the Schengen acquis under EU Law. Indeed, the existence of the Schengen area has heightened the need to control migration and fight organized crime at the external borders of the Schengen area, and therefore develop further instruments in relation to ASFJ.63 However, given the shortcomings of traditional migration control policies, according to Boswell, the EU has increasingly sought to develop the external dimension of asylum and migrations, addressing migration management through cooperation with migrant-sending countries and the transit countries through which migrants and refugees travel.64 This externalization of the migration and asylum policy consists of two distinct approaches jointly adopted by the EU in its foreign policy.65 The first involves forms of cooperation that essentially externalize traditional domestic or EU migration control tools, engaging the sending and transit countries in strengthening border control, combating illegal entry, migrant smuggling and trafficking, or readmitting migrants who illegally crossed into the EU. The second approach entails preventive policies and measures to change the factors influencing people’s decision to move or their destination. These measures address the root causes of migration and refugee flows and foresee a different range of tools such as development assistance, trade and foreign direct investment, or foreign policy tools. While the latter measures can be considered as covering purely ‘milieu’66 or normative goals67 of EU foreign policy concerning the wider environment and promoting universal values, such as peace, democracy, human rights, the rule of law, international law, and sustainable development,68 the former can be perceived more as ‘possession goals’ that advance national interests and aim to enhance or preserve those things that States attach value to.69

62

Ibid. Ibid. 64 Boswell (2003), p. 619. 65 Ibid. 66 Wolfers (1962), pp. 73–77. 67 Tocci (2007). 68 Nikodinovska Krstevska (2015), pp. 109–140. 69 Wolfers (1962), p. 73. 63

140

A. Nikodinovska Krstevska

4 Building Up the Bricks of a Potential Dual Concept: The Case of North Macedonia As mentioned, the difficulty of overcoming the shortcomings of the asylum and migration system, especially those concerning the principle of solidarity and fair share of responsibility, redirected EU policy goals towards strengthening the EU’s external dimension of asylum and migration. Moreover, ensuring EU internal security due to threats related to the migration influx changed the EU’s focus toward enhancing the external dimension of the asylum and migration policy. Based on these premises, the EU established a nexus between solidarity and securing its own security. For that purpose, in addition to signing the EU-Turkey deal in March 2016,70 one of the most important instruments through which the EU regulates the migration flow from outside the EU, it also enhanced the European Border and Coast Guard Agency’s (Frontex) mandate,71 reinforcing its role in controlling the Union’s external borders.72 In addition to these two key actions, it also strengthened other instruments to tackle asylum and migration, particularly through cooperation with third countries, with measures including establishing cooperation for border control and management to prevent illegal migration and fight the smuggling of migrants, reinvigorate the implementation of readmission agreements and visa requirements, border management support, establishing operations at high seas, introducing containment measures (or non-entrée measures) aimed at controlling or containing future migrants at the State of origin or transit prior to arriving in Europe, concluding partnership agreements with third countries, such as the EU-Turkey deal, introducing safe third country clauses in international agreements or informal arrangements, ensuring returns, financial contributions, accelerating removal processing, impeding legal arrivals, among others.73 These measures indicate the advancement of strategic interests rather than altruistic or milieu goals. When considering North Macedonia and its position in the context of EU asylum and migration policy, the externalization activities were accomplished through three forms of agency: (1) the European integration process; (2) bilateral cooperation with EU Member States; and (3) cooperation with Frontex. Through the integration process, the EU’s most powerful and influential normative instrument in terms of spreading norms and shaping realities, the EU essentially imposed EU norms on North Macedonia through the harmonization of national law

70

See more in Lehner (2018). Regulation (EU) 2016/1624 of the European Parliament and of the Council (14 September 2016) on the European Border and Coast Guard and amending Regulation (EU) 2016/399 of the European Parliament and of the Council and repealing Regulation (EC) No 863/2007 of the European Parliament and of the Council, Council Regulation (EC) No 2007/2004 and Council Decision 2005/267/EC, O.J. L 251. 72 Léonard and Kaunert (2020). 73 Papastavridis (2021). 71

Solidarity and the Externalization of EU Migration and Asylum Security:. . .

141

with EU law.74 Therefore, the national authorities transposed EU law into national law and implemented the EU rules, standards, and procedures. To this end, North Macedonia undergoes thorough examinations and visits by EU officials at least once a year, reproduced in the European Commission country progress reports to determine the level of alignment with, and implementation of, EU acquis. This is regulated in Chapter 24 on justice, freedom, and security, covering legal and irregular migration, asylum, visa policy, external borders, and Schengen. In fact, as to the refugee crisis, the Commission’s reporting highlighted the level of acquisition of EU acquis, in particular, the external dimension instruments of asylum and migration policy. Specifically, it emphasizes the implementation of the readmission agreement between the EU and North Macedonia in the part covering the readmission of third country nationals,75 also identified as a priority in the New Pact on Asylum and Migration.76 The Commission reports that the agreement is being implemented in its totality as regards the readmission of national citizens, while in relation to third country nationals the statistics show the scarce or inexistent practice of readmitting third country nationals.77 This is the case not only for North Macedonia, but also other countries from the Western Balkans where the EU has difficulties in implementing its return policy.78 In addition, attention is paid to North Macedonia’s border management, calling for the establishment of a biometric registration system that follows the Eurodac model to introduce a proper system to manage irregular movements and stop the practice of returning migrants outside the country’s legal and procedural framework.79 And of course the alignment with EU visa policy for short stays in the EU has been another important benchmark in European integration, since divergent visa policies could endanger the EU Common Asylum System. Judging from the Commission’s 2021 Progress Report for North Macedonia, the country is only moderately aligned with Chapter 24 (on justice, freedom and security),80 but largely aligned with the Schengen rules and external borders, having fully implemented the integrated border strategy with the 2006 EU

74

North Macedonia initiated its European integration process in 2001 with the singing of the Stabilization and Association Agreement with the EU, and in 2005 it received the status of a candidate state for EU membership. More on the European integration process of the country see in www.sep.gov.mk (website of the Secretariat for European affairs of North Macedonia). 75 The Readmission agreement as one of EU’s basic foreign policy instruments in the field of migration and asylum, was signed between the EU and North Macedonia in 2008 (See Agreement between the European Community and the Former Yugoslav Republic of Macedonia on the readmission of persons residing without authorization, Official Journal of the European Union L 334/7 from 9.12.2007). The agreement regulates the mutual readmission of foreigners, whether they are national citizens or third country nationals who do not fulfil the conditions for legal stay. 76 Supra footnote 38. 77 See Nikodinovska Krstevska (2020). 78 See Nikodinovska Krstevska (2022). 79 European Commission (19.10.2021). 80 Op.cit. European Commission (19.10.2021), p. 44.

142

A. Nikodinovska Krstevska

integrated border management concept.81 North Macedonia also changed its law on asylum and temporary protection in 2018, aligning it with EU law and introducing the safe third country clause as one of the prerequisites of the legal acquis.82 Aside from the purely normative approach to externalizing EU migration and asylum policies, externalization has been enacted through bilateral cooperation that proved the most efficient tool for remotely controlling migrant influx, preventing migration, and combatting the smuggling of migrants. Owing to the EU solidarity crisis, Member States that were majorly exposed to the migrant influx strengthened their cooperation on a bilateral level with the Balkan Route countries so they could be directly involved in controlling the southern border between North Macedonia and Greece. Indeed, during the crisis, North Macedonia established cooperation with eight regional and EU countries (Serbia, Croatia, Slovenia, Hungary, Austria, Czech Republic, Slovakia, and Poland)83 that provided technical assistance and donations, such as field vehicles, thermal cameras, wired fences, equipment and computers to register migrants, for the purpose of controlling the border with Greece,84 but also training police officials for border management and sharing good practices. Furthermore, it permitted the deployment of ‘guest police officers’ on the GreekMacedonian border85 that jointly with the police and army engage in patrolling and surveilling the border in tight coordination with Frontex officials as well as in the joint identification, profiling, and registration of migrants and refugees.86 This has

81

Ibid., pp. 44–45. Following the Refugee crisis in 2015, North Macedonia has amended three times the Law on Asylum and Temporary protection (Official Gazette of the Republic of Macedonia No. 49/2003 and following amendments No.66/2007, 142/2008, 146/2009, 166/2012 and 27/2013). The first amendment came as a response to the migrant influx, whereby the country introduced the ’72-hour travel permit’ to allow irregular migrant to transit its territory without necessarily applying for asylum (Amendments to the Law on Asylum and Temporary Protection, Official Gazette of the Republic of Macedonia No.101/2015). This was made as a response to Germany’s open-door policy during the first period of the migrant influx in 2015. The second amendment occurred consequent to the signing of the EU-Turkey Deal and the closure of the Balkan route, whereby the country introduced the ‘safe third country’ clause, declaring that all countries from the European Union, EFTA (European Free Trade Agreement) and NATO (North Atlantic Treaty Organization), were considered as countries of safe origin. Moreover, it introduced a new clause on family reunification, prescribing a prolongation of the period for family reunification (Amendments to the Law on Asylum and Temporary Protection, Official Gazette of the Republic of Macedonia, N. 71/2016). Finally, in 2018 the country adopted a new Law on International and Temporary Protection that substituted the previous law, being now fully aligned with EU law (Official Gazette of the Republic of Macedonia, No. 64 from 11.04.2018). 83 See Ministry of Internal Affairs (21 September 2016). 84 In November 2015, North Macedonia started erecting a 100 km razor wire fence along the border with Greece [See Deutsche Welle (8 February 2016)], which was a donation of the Hungarian Government, and together with other instruments such as fingerprint readers, computers, and cameras it was an in-kind assistance to North Macedonia to deal with the influx of migrants, Euobserver (23 November 2015). 85 See Ministry of Internal Affairs (29 December 2015). 86 UN news (23 February 2016b). 82

Solidarity and the Externalization of EU Migration and Asylum Security:. . .

143

proven to be the most effective tool for border management from which both North Macedonia and the partner countries benefitted, preventing a significant number of illegal entries at the borders.87 The fact that this cooperation is still ongoing shows that it has been a successful management tool.88 Likewise, after the initial financing of guest police officers by the sending States, financing police cooperation was replaced by the EU in March 2016 with the Instrument for Pre-Accession Assistance (IPA funds) under the auspices of the International Organization for Migration (IOM).89 Last, cooperation with Frontex has been another important initiative mirroring the Union’s efforts to enhance the external dimension of asylum and migration, particularly ahead of the new operative mandate of Frontex and the central role it has been given in the EU border management and return policy. Within the framework of the working arrangement with Frontex, North Macedonia has been cooperating through information exchange and risk analyses, training, research and development projects, as well as joint operations conducted at the Greek-Macedonian border for the purpose of countering illegal migration and cross-border crimes.90 Following the Frontex developments under the new operative mandate, the EU initiated a new type of integrated European border management based on an international status agreement between Frontex and a third country with the purpose of supporting border control, managing irregular migration, fighting cross-border crime, combating and preventing human trafficking, migrants, and terrorism, and identifying possible risks and dangers related to security.91 The status agreement will provide Frontex border guards with executive power to conduct different operations, including joint operations, rapid border interventions, and return operations,92 in essence allowing Frontex to duplicate what it is doing inside the EU outside the EU, namely in the Western Balkan region. This is seen as a very powerful tool of the EU asylum and

87

This type of cooperation has been highly appreciated by countries along the Balkan Route and EU Member States. According to them almost 90% of border controls were efficiently effectuated on the Greek-Macedonian border. These border controls have represented a filter of the migratory flows. This information has been collected from an Anonymous informant from the Macedonian Border Police Unit on the Southern border with Greece, conducted on June 6, 2020, through the ZOOM platform. 88 Op.cit. European Commission (19.10.2021), pp. 41–42. 89 See more in Instrument for Pre-Accession Assistance (IPA II) 2014–2020. 90 The Working Arrangement establishing operational cooperation between the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (Frontex) and the Ministry of Internal Affairs of the former Yugoslav Republic of Macedonia, has been signed in 2008 and entered in force on 20 January 2009. The agreement can be consulted on the following link: https://frontex.europa.eu/assets/Key_Documents/Working_ Arrangements/WA_with_former_Yugoslav_Republic_of_Macedonia.pdf. Accessed 10 December 2021. 91 For more details see Ranaldi (2020), pp. 295–312. 92 As an example, see Status Agreement between the European Union and the Republic of Albania on actions carried out by the European Border and Coast Guard Agency in the Republic of Albania, Official Journal of the European Union L 46/3 from 18.2.2019.

144

A. Nikodinovska Krstevska

migration policy given that the EU has awarded Frontex a central position in its return policy as foreseen in the New Pact on Asylum and Migration and in the implementation of the readmission agreements with partner countries. The EU has already signed such status agreements with Albania, Serbia, and Montenegro,93 now fully operational in Albania, and in May 2019, the EU launched its first Frontex mission outside EU borders,94 also initiated with North Macedonia in 2018, but blocked by Bulgaria in September 202095 due to language issues.96 However, while awaiting the signing of the Status agreement, Frontex and North Macedonia have been cooperating to develop an operational plan that would allow the rapid deployment of teams in the country.97 Despite the EU’s efforts to enhance Frontex’s role in the border management and return policy, Frontex’s purpose has been questioned by NGOs on matters of human rights violations at borders98 and subjected to assessments by the EU Court of Auditors.99 Specifically, Frontex’s role in migration management and border control has been called into question for issues related to respecting the fundamental rights of migrants in an episode of border violence reported by Amnesty International that occurred at the border between Croatia and Bosnia and Herzegovina, where the Croatian border authorities under the guidance of Frontex performed acts of violence against illegal migrants.100 Upon these allegations, the EU Ombudsman opened an inquiry into the European Commission’s alleged failure to guarantee respect of the fundamental rights of migrants and refugees of Croatian authorities engaged in controlling the borders under the guidance of Frontex.101 A similar act of violence was denounced by the non-governmental organization ‘No Name Kitchen’ in a report submitted by the Border Violence Monitoring Network stating that Frontex officials were involved in violent border pushbacks of migrants,102 identifying the police as Frontex officials from the blue band they wore on their arm, the emblem of the European Agency.103

93

European Council (2020). Statewatch (2019). 95 Gotev (2020). 96 See more in Stojkov (2021). 97 Op.cit., European Commission (19.10.2021), p. 45. 98 See Human Rights Watch (2020). 99 See European Court of Auditors (2021). 100 Amnesty International (2020). 101 European Ombudsman (2020). 102 Barker and Zajovič (2020a, b). 103 Ibid. 94

Solidarity and the Externalization of EU Migration and Asylum Security:. . .

145

5 Conclusion In conclusion, although solidarity was enshrined as a principle in the EU’s founding treaties, it has still not been fulfilled among Member States. It has not been achieved on the grounds of the Treaties or the Dublin IV proposal, and as such, remains one of the main causes of inconsistency among EU Member States with regard to migration and asylum management. It is precisely Art. 13 para. 1 of Regulation (EU) N. 604/2013 related to the criteria and mechanisms for determining the Member State responsible for examining a claim for international protection that is the principal point of disagreement in the Common European Asylum System and the fair sharing of responsibility among Member States, especially in the wake of the terrorist attacks in 2015. Against the backdrop of the solidarity crisis and the difficulties of finding a permanent solution to the challenges of the migration influx in the short term, the EU and Member States triggered a defense mechanism that restored order at EU external borders and alleviated migration pressure from Member States. In other words, the external dimension of asylum and migration has been enhanced through intensifying cooperation with third countries in the migration management, border control, and return policy, and strengthening the role of Frontex at external EU borders. These actions permitted the EU to bridge the gap created by the EU solidarity crisis and externalize internal security policies by creating a toolbox of ‘contactless control’ instruments practiced by third countries on behalf and for the benefit of the EU and Member States. As in the case of North Macedonia, this has been brought forward through three EU agencies: European integration, bilateral police cooperation, and cooperation with Frontex. The measures thereby enacted brought different benefits to the EU. Through European integration, the EU imposed normative rules that were harmonized by North Macedonia in order to comply with EU acquis in the asylum, migration, and readmission policy. This was used to extend EU norms, rules, and policies beyond EU borders and shift institutional legal boundaries beyond Member States. Through bilateral cooperation, the EU and Member States enhanced the Macedonian border police’s capabilities to better manage migration, deploying guest police officers remotely controlling the Greek-Macedonian border by fomenting the migration pre-emption logics before reaching the EU territory. Finally, cooperation with Frontex and signing the Status Agreements, yet to be signed with North Macedonia, replicates the EU’s return policy consecrated in the New Pact of Asylum and Migration, whereby the EU subcontracts the management of its borders to third countries, specifically those along the Balkan Route. We can therefore conclude that in view of the difficulties of ensuring solidarity between EU Member States, the EU has focused on strengthening the external dimension of asylum and migration in order to overcome the solidarity crisis among Member States and ensure its own security against internal and external threats. The concept of EU solidarity, or better still, closing the gaps in EU solidarity, has been surpassed by the external dimension of asylum and migration policies and measures, which in the wake of multiple threats to the Union, act as instruments

146

A. Nikodinovska Krstevska

ensuring the Union’s security. We can thus further conclude the dual nature of the EU solidarity and EU security concept, since the instruments used to achieve both are practically the same.

References Amanpour C, Patterson T (15 November 2015) Passport linked to terrorist complicates Syrian refugee crisis. http://edition.cnn.com/2015/11/15/europe/paris-attacks-passports/index.html. Accessed Mar 2021 Amnesty International (25 November 2016) The proposed Dublin reform, Position paper. https:// www.amnesty.eu/wp-content/uploads/2018/10/AI_position_paper_on_Dublin_IV_proposal. pdf. Accessed 5 June 2020 Amnesty International (11 June 2020) Croatia: Fresh evidence of police abuse and torture of migrants and asylum-seekers. https://www.amnesty.org/en/latest/news/2020/06/croatia-freshevidence-of-police-abuse-and-torture-of-migrants-and-asylumseekers/. Accessed 10 Nov 2021 ARCI (2016) Le tappe del processo di esternalizzazione del controllo alle frontiere in Africa, dal Summit della Valletta ad oggi, Documento di analisi. http://www.integrationarci.it/wp-content/ uploads/2016/06/esternalizzazione_docanalisiARCI_IT.pdf. Accessed 15 Sept 2021 Barker H, Zajovič M (2020a) ‘The Black book of pushbacks’ I, Border Violence Monitoring Network. https://documentcloud.adobe.com/link/track?uri=urn:aaid:scds:US:3f809f15-bada-4 d3f-adab-f14d9489275a. Accessed 1 Feb 2021 Barker H, Zajovič M (2020b) The Black book of pushbacks II, Border Violence Monitoring Network. https://documentcloud.adobe.com/link/track?uri=urn:aaid:scds:US:b10a04a4-25dd45f1-8b2d-e9c25946cb44#pageNum=5. Accessed 1 Feb 2021 Baureová H (2018) Migration policy of the V4 in the context of migration crisis. Polit Central Eur 14(2): https://doi.org/10.2478/pce-2018-0011 BBC (16 September 2015a) Migrant crisis: Clashes at Hungary-Serbia border. https://www.bbc. com/news/world-europe-34272765. Accessed 15 Aug 2021 BBC (6 August 2015b) Hungary build border fence to control migrant numbers. https://www.bbc. com/news/av/world-europe-33799208. Accessed 17 June 2021 BBC (17 February 2016a) Migrant crisis: Austria sets asylum claims cap and transit limit. https:// www.bbc.com/news/world-europe-35600220. Accessed 10 June 2021 BBC (22 February 2016b) Migrant crisis: Macedonia border closure strands thousands in Greece. https://www.bbc.com/news/world-europe-35629921. Accessed 10 June 2021 Boswell C (2003) The ‘External Dimension’ of EU immigration and asylum policy. Int Aff 79(3), Oxford University Press, pp 619–638 Brandão AP (May – October 2015) The Internal-External nexus in the security narrative of the European Union. Observare Universidade Autónoma de Lisboa 6(1). https://repositorio.ual.pt/ bitstream/11144/4663/1/en_vol6_n1.pdf. Accessed 10 Nov 2021 Burgess JP (2009) There is no European security, only European securities. Cooperation Confl J Nordic Int Stud Assoc 44(3):309–328 Carta M (26 December 2018) Il criterio dello Stato di primo ingresso, secondo il regolamento Dublino III, in occasione degli interventi Search and Rescue (SAR). Focus Human Rights n. 3, Federalismi.it, pp 1–24 Dernbach A (16 August 2015) Germany suspends Dublin agreement for Syrian refugees. EurActiv. https://www.euractiv.com/section/economy-jobs/news/germany-suspends-dublin-agreementfor-syrian-refugees/. Accessed 14 July 2021 Deutsche Welle (8 February 2016) Macedonia fortifies barrier alongside Greek border. https:// www.dw.com/en/macedonia-fortifies-barrier-alongside-greek-border/a-19034110. Accessed 10 Dec 2021

Solidarity and the Externalization of EU Migration and Asylum Security:. . .

147

Drangovski Z (2019) Analytical Report. Lessons learned from the 2015-2016 migration situation in the Western Balkan region, Prague Process Secretariat International Centre for Migration Policy Development, Vienna Duke S, Ojanen H (2007) Bridging internal and external security: lessons from the European security and defense policy. J Eur Integr 28(5):477–494 Eriksson J, Rhinard M (2009) The internal-external security nexus, notes on an emerging research Agenda. Coop Confl J Nordic Int Stud Assoc 44(3):243–267 Euobserver (23 November 2015) Hungary providing Macedonia with razor wire. https:// euobserver.com/tickers/131211. Accessed 10 Nov 2021 European Commission (25 October 2015) Meeting on the Western Balkans migration route: leaders agree on 17-point plan of action, Brussels. https://ec.europa.eu/commission/presscorner/api/ files/document/print/en/ip_15_5904/IP_15_5904_EN.pdf. Accessed 10 Jun 2021 European Commission (19.10.2021) North Macedonia 2021 Report, SWD (2021) 294 final, Strasbourg, p. 42. https://ec.europa.eu/neighbourhood-enlargement/document/download/724722a9240b-4001-abce-648e0c96f88b_en. Accessed 10 Jan 2022 European Council (26 May 2020) Border management: EU concludes agreements with Montenegro and Serbia on Frontex cooperation. https://www.consilium.europa.eu/it/press/pressreleases/2020/05/26/border-management-eu-concludes-agreements-with-montenegro-and-ser bia-on-frontex-cooperation/. Accessed 29 Jan 2021 European Court of Auditors (2021) Special Report Frontex’s support to external border management: not sufficiently effective to date. https://www.eca.europa.eu/Lists/ECADocuments/ SR21_08/SR_Frontex_EN.pdf. Accessed 10 Dec 2021 European Ombudsman (12 November 2020) Ombudsman opens inquiry to assess European and Coast Guard Agency (Frontex) ‘Complaint Mechanism’. https://www.ombudsman.europa.eu/ en/news-document/en/134739 Gammeltoft-Hansen T, Hathaway JC (2015) Non-refoulement in a world of cooperative deterrence. Colum J Transnatl 53(2):235–84. https://repository.law.umich.edu/cgi/viewcontent.cgi?arti cle=2484&context=articles. Accessed 18 Aug 2021 Garcés-Mascareñas B (November 2015) Why Dublin ‘doesn’t work’. Notes Internacionals 135 CIDOB. https://www.cidob.org/en/content/download/62452/1950208/version/15/file/ NOTES%20135_GARCES_ANG.pdf. Accessed 9 Sept 2020 Gazi T (2021) The new pact on migration and asylum: supporting or constraining rights of vulnerable groups? Eur Pap 6(1), European Forum, Insight, pp 167–175. https://www. europeanpapers.eu/en/system/files/pdf_version/EP_EF_2021_I_017_Theodora_Gazi_00460. pdf. Accessed 17 Oct 2021 Gotev G (22 October 2020) Bulgaria blocks North Macedonian Frontex agreement. Euractiv. https://www.euractiv.com/section/politics/short_news/bulgaria-blocks-north-macedoniafrontex-agreement/. Accessed 18 Nov 2021 Human Rights Watch (9 November 2020) EU: Probe Frontex Complicity in Border Abuses. https:// www.hrw.org/news/2020/11/09/eu-probe-frontex-complicity-border-abuses#. Accessed 28 Jan 2021 Instrument for Pre-Accession Assistance (IPA II) 2014-2020, Beneficiary Republic of North Macedonia: Eu for improved border and migration management capabilities in North Macedonia. https://www.sep.gov.mk/data/file/IPA-2014-2020/2020/2020_ad2_eu_for_improved_bor der_and_migration_management-converted.pdf. Accessed 10 Dec 2021 International Organization of Migration (2015) Annual Report 2015, Mixed Migration Flows in the Mediterranean and Beyond, Compilation of available data and information (reporting period 2015). https://www.iom.int/sites/g/files/tmzbdl486/files/situation_reports/file/Mixed-FlowsMediterranean-and-Beyond-Compilation-Overview-2015.pdf. Accessed 5 Sept 2021 Keukeleire S (2002) Structural Foreign Policy. ECPR Pan-European conference on European Union politics, 26-28.2002, Bordeaux, France Keukeleire S, Delreux T (2014) The foreign policy of the European Union, 2nd edn. Palgrave Macmillan, Basingstoke

148

A. Nikodinovska Krstevska

Lavanex S (2004) EU external governance in ‘wider Europe’. J Eur Public Policy 11(4):680–700 Lavanex S (2006) Shifting up and out: the foreign policy of European immigration control. J Eur Integr 29(2):329–350. https://doi.org/10.1080/01402380500512684 Lavanex S, Wichmann N (2008) The external governance of EU internal security. J Eur Integr 31(1):83–102. https://doi.org/10.1080/07036330802503932 Lavenex S, Schimmelfennig F (2009) EU rules beyond EU borders: theorizing external Governance in European Politics. J Eur Public Policy 16(6):791–812 Lehner R (2018) The EU-Turkey-‘deal’: legal challenges and pitfalls. Int Migr. https://doi.org/10. 1111/imig.12462 Léonard S, Kaunert C (2020) The securitisation of migration in the European Union: frontex and its evolving security practices. J Ethnic Migr Stud. https://doi.org/10.1080/1369183X.2020. 1851469 Macedonian Young Lawyers Association (April 2017) A Dangerous ‘game’ The pushback of migrants, including refugees, at Europe’s borders, Joint Agency Briefing Paper, Belgrade Center for Human Rights and Oxfam. https://www-cdn.oxfam.org/s3fs-public/file_attachments/bpdangerous-game-pushback-migrants-refugees-060417-en_0.pdf. Accessed 10 May 2021 Manners I (2002) Normative power Europe: a contradiction in terms? J Common Mark Stud 40(2): 235–258 Matsumoto D (2009) The Cambridge dictionary of psychology. Cambridge University Press, Cambridge McDonough P, Tsourdi EL (January 2012) Putting solidarity to the test: Assessing Europe’s response to the asylum crisis in Greece. Research Paper No. 231, New Issues in Refugee Research, UNCHR, Policy Development and Evaluation Service, Geneva Merriam-Webster Online Dictionary (2021). https://www.merriam-webster.com/dictionary/exter nalization. Accessed 9 June 2021 Ministry of Internal Affairs (29 December 2015) Police officers from Croatia, Serbia and soon from Hungary, Slovenia and Czech Republic together with Macedonian police officers on the Southern Border. [Policiski službenici od Hrvatska, Srbija, a naskoro i od Ungarija, Slovenija i Ceška na južnata granica]. https://mvr.gov.mk/vest/1176. Accessed 10 Dec 2021 Ministry of Internal Affairs (21 September 2016) Minister Spasovski at the Conference ‘Irregular Migration as one of the challenges of Macedonia today’ [Ministerot Spasovski na Konferencija ‘Neregularnata migracija kako eden od predizvicite na Makedonija denes’]. https://mvr.gov.mk/ vest/2607 Accessed 12 Dec 2021 Mogherini F (2017) Redefining EU’s Security Agenda. World Economic Forum, Davos. https:// www.youtube.com/watch?v=Xl1Xj-stH6E. Accessed 10 May 2021 Morano-Foadi S (2017) Solidarity and responsibility: advancing humanitarian responses to EU migratory pressures. Eur J Migr Law 19:223–254 Moreno-Lax V, Giuffré M (2019) The raise of consensual containment: from ‘Contactless Control’ to ‘Contactless Responsibility’ for forced migration flows. In: Juss SS (ed) Handbook on international refugee law. Edward Elgar, Cheltenham, pp 82–108 Morgese G (2020) La ‘nuova’ solidarietà europea in materia di asilo e immigrazione: molto rumore per poco?. Federalismi.it, n. 35/2020 Mounier G (2007) European police missions: from security sector reform to externalization of internal security. HUMSEC J 1:47–64. https://www.files.ethz.ch/isn/110394/HUMSEC_ Journal_Issue_1.pdf. Accessed 10 May 2021 Nikodinovska Krstevska A (2015) The relationship between values and policies of the European Union through the prism of its foreign policy [Odnosot megu vrednostite i politikite na Evropskata unija niz prizmata na nejzinata nadvorešna politika], 2ri Avgust – Štip, Štip Nikodinovska Krstevska A (2020) Illegal migration, Republic of Macedonia and the European union: some observations on the readmission agreement. Proceedings of the seventh international scientific conference ‘social changes in the global world’. pp 605–618 Nikodinovska Krstevska A (2022) Promoting human security of migrants in maritime space: the role of non-state actors in North Macedonia. In: Bevilacqua G (ed) Non-state actors and human

Solidarity and the Externalization of EU Migration and Asylum Security:. . .

149

security in navigable spaces, Federalismi.it, Rivista di diritto pubblico italiano, comparato ed europeo, Rome, pp 116–127 NY Times (23 February 2016) Policy shift on refugees lead to clashes between migrants and police. https://www.nytimes.com/2016/02/24/world/europe/macedonia-afghan-migrant-crisis.html. Accessed 10 June 2021 Operational Data Portal for Greece – UNCHR. https://data2.unhcr.org/en/situations/mediterranean/ location/5179. Accessed 20 Mar 2021 Operational Data Portal for Italy – UNCHR Operational data portal – UNCHR. https://data2.unhcr. org/en/situations/mediterranean/location/5205. Accessed 20 Mar 2021 Papastavridis E (2020) Policy brief on migration controlling immigration beyond the external borders of the EU, Deliverable D.1.3.b, borderless challenges, Redefining sovereignty project. Kapodistrian University of Athens. https://borderless.law.uoa.gr/fileadmin/depts/law.uoa.gr/ borderless/uploads/Deliverables/WP1/D.1.3.b.pdf. Accessed 15 Dec 2021 Parkes R (November 2016a) Managing migration abroad - why, where, what and how?. European Union Institute for Security Studies (EUISS). https://www.iss.europa.eu/content/managingmigration-abroad-%E2%80%93-why-where-what-and-how. Accessed 12 Jan 2022 Parkes R (October 2016b) The internal-external nexus: re-bordering Europe. European Union Institute for Security Studies (EUISS). https://www.iss.europa.eu/content/internal-externalnexus-re-bordering-europe. Accessed 12 Jan 2022 Pasquale P (2020) Il Patto per la migrazione e l’asilo: più ombre che luci. In: La proposta di Patto su immigrazione e asilo, I Post di AISDUE, II (2020), aisdue.eu, Focus ‘La proposta di Patto su immigrazione e asilo’, No. 1, 5 ottobre Pew Research Center (2 August 2016) Number of Refugees to Europe Surges to Record 1.3 million in 2015. https://www.pewresearch.org/global/2016/08/02/number-of-refugees-to-europesurges-to-record-1-3-million-in-2015/. Accessed 10 Oct 2021 Ranaldi V (2020) Il ruolo dell’Agenzia europea della guardia di frontiera e costiera (FRONTEX) nella gestione delle frontiere esterne dell’Unione europea: gli accordi di cooperazione con i Paesi dei Balcani Occidentali. In: Special Edition ‘EU-Western Balkans Cooperation on Justice and Home Affairs’ Essays. ILLYRIUS International Scientific Review, No. 14/I (2020), pp 295–312 Rijpma J, Cremona M (2007) The Extrateritorialization fo EU Migration Policies and the Rule of Law. EUI Working Paper Law 2007/1. European University Institute, San Domenico di Fiesole Ruhrmann H, FitzGerald D (September 2016) The Externalization of Europe’s Borders in the Refugee Crisis, 2015-2016. Working Paper No. 194, Center for Comparative Immigration Studies, University of California – San Diego Russo T (2021) Quote di ricollocazione e meccanismi di solidarietà: le soluzioni troppo ‘flessibili’ del Patto dell’Unione Europea su migrazione e asilo. Freedom Secur Just Eur Legal Stud 2:281– 304. https://doi.org/10.26321/T.RUSSO.02.2021.13 Statewatch (22 May 2019) EU: Externalisation: Frontex launches first formal operation outside of the EU and deploys to Albania. https://www.statewatch.org/news/2019/may/eu-externalisationfrontex-launches-first-formal-operation-outside-of-the-eu-and-deploys-to-albania/. Accessed 10 Sept 2021 Stojkov S (2021) The continuation of communist-era totalitarian policies in the European Union: the case of Bulgaria, the Macedonian minority and Macedonia’s EU integration. Security Dialogues. Faculty of Philosophy – UKIM 12(1) Tocci N (2007) Profiling Normative Foreign Policy: The European Union and its Global Partners. CEPS Working Document, No. 279

150

A. Nikodinovska Krstevska

UN News (23 February 2016a) Europe’s restrictive measures place added hardships on refugees and asylum-seekers. https://news.un.org/en/story/2016/02/522852-europes-restrictive-mea sures-place-added-hardships-refugees-and-asylum-seekers. Accessed 18 July 2021 UN News (23 February 2016b) Europe’s restrictive measures place added hardships on refugees and asylum-seekers. https://news.un.org/en/story/2016/02/522852-europes-restrictive-mea sures-place-added-hardships-refugees-and-asylum-seekers. Accessed 11 Nov 2020 UNHCR (May 2016) Hungary As a Country of Asylum Observations on restrictive legal measures and subsequent practice implemented between July 2015 and March 2016 (p. 6). https://www. refworld.org/pdfid/57319d514.pdf. Accessed 13 Sept 2021 Wolfers A (1962) The goals of foreign policy. In: Wolfers (ed) A discord and collaboration: essays on international politics, The Johns Hopkins Press, Baltimore, pp 67–80

Ana Nikodinovska Krstevska is Associate Professor of EU Law and of EU Foreign Policy at the Faculty of Law, Goce Delcev University, Stip, North Macedonia. She has finished BA and MA studies in Italy (Orientale – Napoli and Alma Mater – Bologna), and she has attained her PhD in Studies for European integrations at the University Ss. Cyril and Methodius in Skopje. Prof. Nikodinovska Krstevska is the coordinator of the Center for Analysis of Law and Policies at the University Goce Delcev. She is a coordinator for the University Goce Delcev in two Jean Monnet projects in matter of asylum and migration and EU Foreign policy (MAPS and BORDEURS), and she is also the coordinator of the activities for the Goce Delčev University in the Module Jean Monnet EU–Western Balkans Cooperation on Justice and Home Affairs (EUWEB). Her research is focused on EU migration and asylum policies with specific emphasis on cooperation in migration, prevention, and combat of illegal migration, outsourcing, and externalization of asylum and migration policies in relation to the Western Balkan countries.

Part III

Solidarity and Rule of Law in Criminal Justice and Human Rights

Breaches of the Rule of Law in the EU: What Implications for the Principle of Mutual Trust in the Area of Freedom, Security and Justice? Angela Di Stasi and Angela Festa

Abstract Reflecting some recent tendencies, including the emergence of nationalist and illiberal forces, and the ‘states of emergency’ linked to the Covid-19 pandemic, respect for the rule of law in the EU has been challenged. While Poland and Hungary have become emblematic of this phenomenon, signals of the so-called backsliding of the rule of law are also evident in other Member States. Such breaches of the rule of law in the EU inevitably call into question the existence of mutual trust among Member States and the overall functioning of the judicial area without internal borders. This chapter intends to highlight the relationship between mutual trust and rule of law violations in the EU in light of the evolutionary jurisprudence of the Court of Justice, taking the Court’s judgement in Case C-896/19 Repubblika as a provisional closure point. The aim is to verify whether mutual trust as a structural principle of EU law emerges strengthened or completely compromised under this ‘stress test’.

1 Introduction It is no secret that respect for the rule of law in the European Union is experiencing a moment of severe crisis. Hungary and Poland have now become emblematic of the phenomenon of constitutional backsliding, recognizable albeit in a less conspicuous

While this chapter is the product of discussions between the co-authors, Sects. 1 and 5 are attributable to both authors, Sect. 2 to Angela Di Stasi, Sects. 3 and 4 to Angela Festa. A. Di Stasi (✉) Department of Legal Sciences, University of Salerno, Fisciano, Italy e-mail: [email protected] A. Festa Department of Law, University of Campania ‘Luigi Vanvitelli’, Santa Maria Capua Vetere, Italy e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 T. Russo et al. (eds.), Solidarity and Rule of Law, European Union and its Neighbours in a Globalized World 9, https://doi.org/10.1007/978-3-031-29227-9_9

153

154

A. Di Stasi and A. Festa

form, also in other Member States, such as Romania, Bulgaria, Slovenia, Slovakia, Croatia.1 The main target of constitutional deviations would seem to be the Courts, dismantled by parliamentary majorities through the ‘court packing method’2 in order to undermine their autonomy and independence. Although the organization of the judicial systems is closely linked to the exercise of sovereign powers, the EU’s interest in safeguarding the independence of the judiciary is apparent, also because it is part and parcel of the rule of law, a common value on which the EU was founded pursuant to Article 2 TEU. Moreover, respect for the rule of law is instrumental and essential to building mutual trust among Member States and ensuring the proper functioning of the Area of Freedom, Security, and Justice (Article 3, para 2, TEU). Threats to the independence of judges also concern the EU because national judges are the main actors of European law, and if their autonomy is threatened, the correct application of EU law tout court risks being compromised. As Advocate General Bobek recently observed: ‘In a system such as that of the European Union, where the law is the main vehicle for achieving integration, the existence of an independent judicial system (both centrally and nationally), capable of ensuring the correct application of that law, is of paramount importance. Quite simply, without an independent judiciary, there would no longer be a genuine legal system. If there is no ‘law’, there can hardly be more integration. The aspiration of creating ‘an ever-closer union among the peoples of Europe’ is destined to collapse if legal black holes begin to appear on the judicial map of Europe’.3 The growing concern for this type of involution has resulted in, on the one hand, the introduction in the EU of an ample and varied toolbox aimed at protecting the rule of law,4 whose respect and promotion is a prerequisite for joining the EU at least since the 5th Enlargement process, and on the other hand, the Court of Justice’s proactive role in the challenges to the rule of law.5 The intervention of the Court, also requested by national judges, has been particularly fruitful: consider the judgements rendered by the Grand Chamber pursuant to Article 258 TFEU against the Republic of Poland,6 and the various preliminary rulings in which the Court developed a new line of interpretation of the issue of the independence of the judiciary as the most important element of the rule of law.7 1

Elósegui et al. (2021). On the court packing method, see Drzemczewski (2017). 3 European Court of Justice, Joined Cases C-748/19 to C-754/19, Opinion of AG Bobek delivered on 20 May 2021, Prokuratura Rejonowa w Mińsku Mazowieckim et al., para. 138. 4 Consider the New EU Framework to Strengthen the Rule of Law introduced by the Commission in 2014, the Rule of Law Annual Report and the EU/Euratom Regulation No. 2020/2092, entered into force on 1 January 2021. For further details, see Festa (2021b), pp. 129–180. 5 Villani (2020) and Sawicki (2020). 6 Festa (2020). 7 European Court of Justice (Grand Chamber), Judgment (25 July 2018), C-216/18 PPU, LM; European Court of Justice (Grand Chamber), Judgment (24 June 2019), C-619/18, Commission 2

Breaches of the Rule of Law in the EU: What Implications for the. . .

155

Starting from the well-known ‘Portuguese Judges’ case, the Court proposed the unprecedented triangulation of Articles 19 and 2 TEU and Article 47 of the Charter of Fundamental Rights (CFR), recognizing the justiciability of the rule of law through the principle of the independence of the judiciary.8 In fact, according to the Court, Article 19 TEU concretizes the principle of the rule of law as enshrined in Article 2 TEU, and entrusts responsibility for its respect not only to the Court of Justice but also national courts.9 Beyond acknowledging a new ‘fundamental right to an independent court’, part of the essence of the right to a fair trial under Article 47(2) CFR, the Court’s work has also been aimed at preserving mutual trust among Member States, inevitably called into question by the substantial violations of the principles of the rule of law in the Area of Freedom, Security, and Justice (AFSJ). These deviations, indeed, when particularly serious, can be capable of undermining intra-EU democratic cohesion, trust, and solidarity, with the risk of catalysing further intra-EU polarization, mistrust, and paralysis.10 In this context, the present chapter focuses on the rule of law and mutual trust dimensions in the European legal order, and the actual implications of the violations of the rule of law on the mutual trust principle in light of the evolving jurisprudence of the Court of Justice, taking the Court’s judgement in the Repubblika11 case as a provisional closure point. To do so, we first consider mutual trust and the rule of law as structural elements of the European edifice, exploring the actual meaning of mutual trust to verify whether it emerges strengthened or completely compromised under the violations of the rule of law stress test. Indeed, as the Court assessed in the well-known Opinion 2/13 on the draft agreement on accession to the ECHR, mutual trust cannot work properly if not supported by adherence to the EU founding values, among which the rule of law is a primus inter pares.12 On the other hand, in strengthening mutual trust, national independent courts upholding the rule of law play a crucial role.13

v. Poland; European Court of Justice (Grand Chamber), Judgment (5 November 2019), C-192/18, Commission v. Poland; European Court of Justice (Grand Chamber), Judgment (19 November 2019), C-585/18, C-624/18 and C-625/18, A.K. and others; European Court of Justice (Grand Chamber), Judgment (2 March 2021), C-824/18, A.B. and others; European Court of Justice (Grand Chamber), Judgment (15 July 2021), C-791/19, Commission v. Poland. 8 European Court of Justice (Grand Chamber), Judgment (27 February 2018), C-64/16, Associação Sindical dos Juízes Portugueses, para 32. See, amongst others, Bonelli and Claes (2018), Miglio (2018), Pech and Platon (2018), and Pérez (2020). 9 On the role of Constitutional Courts as ‘institutions of pluralism’, see Sciarra (2018). 10 Efrat et al. (2021). 11 European Court of Justice, Judgment (20 April 2021), C-896/19, Repubblika v Il-Prim Ministru. 12 Von Bogdandy (2018b). 13 Ugartemendia Eceizabarrena (2021).

156

A. Di Stasi and A. Festa

2 Mutual Trust and the Rule of Law in the Area of Freedom, Security and Justice Before going into detail, worth noting is that differently from the rule of law that finds its place in Article 2 TEU, the Lisbon Treaty contains no reference to the principle of mutual trust. While not expressly mentioned in EU primary law, trust among Member States is at the very foundation of the EU legal system. Indeed, if trust is somehow implied in any form of treaty or contract,14 serving as a sort of social-empirical premise for the functioning of the law in general, within the EU, particularly over the last couple of decades, it has forcefully ascended to the status of general principle, becoming one of the most important constitutional elements shaping the legal structure of the EU as a ‘Union of values’.15 However, as an implicit concept, there is no commonly agreed definition of mutual trust.16 According to the prevailing interpretation, it rests primarily on the principle of sincere cooperation enshrined in Article 4(3) TEU,17 but can also be said to be rooted in the principle of equality between Member States (Article 4, para 2, TEU),18 coupled with solidarity,19 and intended to ensure the effectiveness of EU law. Differently from the principle of loyalty, it has a horizontal nature, being mainly a precondition of sincere collaboration between Member States.20 First used in parallel with positive harmonization to establish the common market and permit the free movement of goods, today mutual trust is applied in manifold ways in EU law, but seems to play the most prominent role in the Area of Freedom, Security and Justice as a conditio sine qua non for the proper functioning of asylum and migration policy, police and judicial cooperation in criminal matters, and cooperation in civil justice.21 In the AFSJ, mutual trust is seen as an essential prerequisite to mutual recognition that as the cornerstone of judicial cooperation since the 1999 Tampere European Council has been incorporated in Articles 67, 70, 81, 82 of the Treaty on the Functioning of European Union (TFEU).22 If mutual recognition requires Member States to give full and immediate application to judicial

14

Regan (2018). European Court of Justice, Opinion 2/13, para 168. The importance of the principle has been recognized also by the European Court of Human Rights: see above all, European Court of Human Rights, Judgment (23 May 2016), 17502/07, Avotiņš v Latvia. 16 On this concept, see above all, Maiani and Migliorini (2020), Lenaerts (2017), Prechal (2017), Mengozzi (2017), p. 1, and Pistoia (2017). For a conceptual framework of the principle of mutual trust in EU criminal law as a prerequisite for a successful application of the principle of mutual recognition, see Willems (2021). 17 On the relationship between mutual trust and the principle of loyalty see Fartunova (2016). 18 Lenaerts (2017), p. 808. 19 Lang (2020). 20 Rossi (2021). 21 Di Stasi and Rossi (2020). 22 Lenaerts (2015), p. 528. 15

Breaches of the Rule of Law in the EU: What Implications for the. . .

157

decisions from other jurisdictions across the EU with the aim of guaranteeing that exercising free movement does not undermine the effectiveness of the decisions adopted by the competent Member State, mutual trust acts as a sort of ‘legal glue’ that binds and facilitates the aforementioned recognition practices. In this respect, trust governs the relationship between Member States to the extent that it allows ‘an area without internal borders to be created and maintained’,23 as stressed by the Court of Justice in Opinion 2/13, which inter alia is the fullest theorization of the principle of mutual trust as it stands today. Underlining the close link between the principle of mutual trust and EU values, subsequently repeated above all in the well-known Achmea judgement,24 in the controversial Opinion, the Court provided justifying reasons for the assumed existence of mutual trust between Member States by invoking an axiological premise. In fact, mutual trust finds its raison d’être in the idea that ‘each Member State shares with all the other Member States, and recognizes that they share with it, a set of common values on which the EU is founded, as stated in Article 2 TEU. That premise implies and justifies the existence of mutual trust between the Member States that those values will be recognized and, therefore, that the law of the EU that implements them will be respected’.25 Put simply, the relations between EU Member States are based on the assumption that all are equally committed to upholding the common values on which the EU is founded, so that mutual trust encapsulates the idea that ‘while another State may not deal with a certain matter in the same or even a similar way as one’s own State, the outcome will be such that it is accepted. . .because it reflects the same principles and values’.26 Concerning the object of trust, the Court goes on to state that the ‘principle requires, particularly with regard to the Area of Freedom, Security and Justice, each of those States, save in exceptional circumstances, to consider all the other Member States to be complying with EU law and particularly with the fundamental rights recognized by EU law’. In this sense, the concept of trust translates into a legal requirement for Member States to generally presume adherence to EU fundamental rights, and this presumption applies because according to 49 TEU, Member State status entails adherence to the EU values listed in Article 2 TEU. As a consequence, mutual trust implies that Member States are not entitled to require a higher level of protection of fundamental rights from other Member States than that provided at the EU level, and in principle are precluded from assessing the compliance of other Member States, with fundamental rights guaranteed by the EU, as laid down in the Charter; all this—the Court stated—save in exceptional circumstances. In fact, as we will see, moving from the perspective of mutual trust as ‘blind trust’ simply assumed to exist, the Court has recognized that qualified evidence

23

Opinion 2/13, para. 191. European Court of Justice (Grand Chamber), Judgment (6 March 2018), C-284/16, Achmea. 25 Opinion 2/13, para. 168. 26 European Court of Justice, C-187 and 385/01, Opinion of AG Colomer delivered on 19 September 2002, Gözütok and Brügge, para. 124. 24

158

A. Di Stasi and A. Festa

suggesting ‘systemic or generalized’ failures in observing fundamental rights standards urges the trustor to set aside the presumption of trustworthiness, check for deficiencies in dialogue with the trustee, and as ultima ratio, abandon recognition if further assessments reveal a definite ‘real risk’ of fundamental rights violation. Beyond this, what is remarkable is that these peculiar negative obligations have been the main driver of integration at the EU level. In particular, as mentioned, the presumption of trust among Member States that their respective judicial systems ensure adequate protection of fundamental rights, justifying the enforceability and recognition of any decision adopted by another national authority, serves the purpose of enabling transnational cooperation for the creation of a common legal space without internal borders, namely AFSJ.27 This meaning of trust is crucial and helps illustrate the concept of European rule of law as laid down in Article 2 TEU, with one conditional on the other.28 In fact, if the presumptive adherence to the values, particularly the rule of law, is the basis on which mutual trust among Member States is founded, violations of this value— which become the normal state of affairs or are generalized or systemic—inevitably undermine the reliance of citizens on their rights, and diminish Member States’ trust in each other’s legal systems.29 On the other hand, respect for fundamental rights is itself part and parcel of the rule of law. Indeed, although the latter is a broad and interdisciplinary concept that can be difficult to encapsulate in a general or universally accepted academic definition—with the various designations of État de droit, Rechtsstaat, Stato di diritto reflecting different contents according to different legal traditions—the common denominator that can be inferred at the EU level from all the particular cases is that the ultimate purpose of the rule of law is to guarantee the protection of human rights.30 As an umbrella principle including, inter alia, the principles of legality, legal certainty, separation of powers, equality before the law, as well as the guarantee of fundamental rights ensured by an independent and impartial judiciary, the idea behind the European rule of law is that the members of a society must organize their relationships and plan their behaviours with respect for personal autonomy to the exclusion of any arbitrary use of governmental powers. In this sense, trust also adjusts an individual’s behaviour to the future behaviours of others, stabilizing normative expectations as the rule of law does.31 In this way, trust and the rule of law end up serving the same functions, not as alternative mechanisms for stabilizing 27

On this topic, see amongst others, Di Stasi (2019), particularly the Introductory Chapter and Chapter 1. See also Salazar (2007). 28 On the meaning of the rule of law in the European Union see Salerno (2020), Pech and Grogan (2020), Magen and Pech (2018), Weatherill (2016), Palombella (2014), Carpano (2005), von Bogdandy (2005), and Férnandez Esteban (1999). 29 Di Stasi (2012a). 30 Ruggeri (2020). 31 Von Bogdandy (2018a) Beyond the Rechtsgemeinschaft with Trust – reframing the Concept of European Rule of Law, p. 17.

Breaches of the Rule of Law in the EU: What Implications for the. . .

159

expectations, but as complementary and interrelated elements supporting each other. Supporting trust means supporting the rule of law, since trust itself legitimizes the decision-making processes in the EU. In this architecture, courts and their role in the protection of human rights cannot be ignored. In particular, irrespective of the narrow or broad approach taken with regard to the notion, the independence of justice represents a core pillar of the concept of rule of law, as well as the cornerstone and fundamental precondition of the mutual trust structure. The delicate relationship between mutual trust and the rule of law is apparent in the jurisprudence of the Court of Justice, which more than other EU institutions since delivery of Opinion 2/13 safeguarded the centrality of these principles in its judgements.32 In this respect, in the last few years of judicial activism, two branches of case-law have been remarkable. The first tends to limit the automatic application of mutual trust by relying on EU fundamental values going beyond the traditional approach built on presupposed trust between Member States, embracing a more attentive position to the protection of fundamental rights, even at the cost of endangering judicial cooperation between Member States. The second branch instead relies on mutual trust as a policy to bolster the application of the rule of law. These two main lines of interpretation will be analysed next.

3 Breaches of Fundamental Values as a Limit to Mutual Trust in the Application of the European Arrest Warrant To see how the principle of mutual trust actually works, controversies in the field of criminal matters—where fundamental rights are most at stake—provide ideal test cases.33 In this regard, it is no coincidence that as a backdrop to the aforementioned jurisprudence, there is almost always the European Arrest Warrant (EAW),34 introduced under Framework Decision 2002/584/JHA as the first and most concrete measure implementing the principle of mutual recognition within the system of judicial cooperation in criminal affairs. As known, this measure replaces the multilateral extradition procedure, and implies a system of automatic surrender under EU law that rests solely in the hands of judicial authorities. In fact, the EAW is defined in Article 1(1) of the FD as a judicial decision issued by a Member State with a view to the arrest and surrender by another Member State of a requested person for the purposes of conducting a criminal prosecution, executing a custodial sentence or detention order.

32

Grousot and Martinico (2020). Di Stasi (2012b). 34 Council Framework Decision 2002/584/JHA (2002) on the European arrest warrant and the surrender procedures between Member States O.J. L 190. 33

160

A. Di Stasi and A. Festa

He tool was also conceived as a means to keep the borderless Area of Freedom, Security and Justice sustainable while preventing potential offenders from exploiting free movement and the absence of internal frontiers for illicit purposes. Therefore, this same Framework Decision exhaustively prescribes a list of mandatory and optional grounds for the refusal of its execution. These grounds are mainly rooted in specific fundamental rights, but in any case, are very much concerned with occasional and not systemic or structural fundamental rights violations capable of undermining the EAW mechanism itself. In this sense, these exceptions are perfectly in line with, and reinforce, the presumptive nature of mutual trust. Nevertheless, it is in the field of identification and interpretation of the grounds for refusal that the Court of Justice has gradually opened the space for the rebuttal of mutual trust.35 If the formative years of the EAW were characterized by a strong emphasis on automaticity and the effectiveness of cooperation, with the Court taking the existence of trust between Member States as a fact,36 as time has gone by, the Court’s approach has become more balanced, and through the interpretation of Article 1, para 3, FD, and the list of mandatory and optional grounds for refusal, it admitted derogations to the trust-based scheme, tending to preserve the operation or effet utile of the mechanism at the same time. Through this path, the Court has developed the so-called ‘exceptional circumstances doctrine’, first and foremost with regard to the absolute prohibition of degrading treatment. A landmark case in this respect is the well-known Aranyosi and Căldăraru judgement,37 where the Court recalled what the German Constitutional Court qualifies as the ‘responsibility of protection’ of those sentenced to imprisonment. This famous ruling was triggered following the adoption of two EAWs issued by a Hungarian and a Romanian judge against people living in Germany whose execution was called into question by the German judicial authority, since the prison conditions in the requesting States had already been deemed as inhumane and degrading treatment by the European Court of Human Rights settled case-law. The national judge then asked the Court of Justice whether Article 1, para 3, FD, which states that the Framework Decision does not modify the obligation in Art. 6 TEU to respect fundamental rights, could be interpreted as a reason for the refusal of surrender when the detention conditions in the issuing Member State violate the fundamental rights of the surrendered person. By virtue of the high level of mutual trust between Member States, the Court excluded any form of automatism, but

35

Lombardi (2021), p. 31, Carlino and Milani (2019), Mavrouli (2019), Gonçalves (2018), Panella (2017), and Düsterhaus (2017). 36 We recall the Melloni judgement in which the ECJ famously found that allowing an exception to execution not provided in the FD would cast doubt ‘on the uniformity of the standard of protection of fundamental rights as defined in [the FD], would undermine the principles of mutual trust. . .and would, therefore, compromise the efficacy of [the FD]’. European Court of Justice (Grand Chamber), Judgment (26 February 2013), C-399/11, Stefano Melloni v Ministerio Fiscal, para. 63. 37 European Court of Justice (Grand Chamber), Judgment (5 April 2016), C-404/15 and C-659/15 PPU, Aranyosi and Căldăraru. See Lazzerini (2016).

Breaches of the Rule of Law in the EU: What Implications for the. . .

161

recognized that the absolute nature of the prohibition of inhumane or degrading treatment required an assessment to be made. Going beyond the express exceptions of the Framework Decision, the Court established a two-pronged test to be carried out by the executing authority in these circumstances. First, the Court stated that it should make a finding of general or systemic deficiencies in the protections provided in the issuing Member State. Second, it must specifically and precisely ascertain whether there are substantial grounds to believe that the individual concerned will be exposed to a real risk of being subjected in that Member State to inhumane or degrading treatment due to those general or systemic deficiencies. The executing court, pursuant to Article 15(2) EAW FD, must seek from the issuing Member State’s judicial authority all supplementary information that it considers necessary to assess whether there is such a risk. If, on examination of the available information, a real risk cannot be discounted, the judicial authority must refrain from executing the EAW. In this case, mutual trust is destined to perish, since the inviolability of human dignity and the prohibition of torture and inhumane or degrading treatment and punishment are ‘one of the fundamental values of the EU and its member States’.38 This logic is now confirmed not only with regard to the EAW (see, for instance, the Dorobantu case39), but also in other spheres of the AFSJ, such as asylum policy. Rather, it is in the interpretation of the Dublin Regulation that the ECJ first allowed an exception to the mutual trust-based mechanism of the inter-State transfer of persons. The first judgement acknowledging the existence of ‘unwritten’ Charterderived limits to mutual trust is the famous N.S. case,40 where the ECJ found that the existence of systemic deficiencies in the asylum procedure and in the reception conditions amounted to substantial grounds to believe that the asylum seeker would face the real risk of being subjected to inhumane or degrading treatment. If an absolute presumption of mutual trust is incompatible with EU law, surprisingly in the N.S. case, the automatism of mutual trust is sacrificed without any individual assessment. In this, the distance from the Aranyosi test is evident: differently from the asylum law, in EU criminal matters, the standards of proof are much more complicated to achieve, since they require the subjective test to be accomplished. In criminal justice matters, the Court evidently placed more emphasis on the need to assure transnational cooperation, with considerations of effectiveness and security prevailing upon concerns about compliance with fundamental rights.

38 European Court of Justice (Grand Chamber), Judgment (5 April 2016), C-404/15 and C-659/15 PPU, Aranyosi and Căldăraru, para. 87. 39 European Court of Justice (Grand Chamber), Judgment (15 October 2019), C-128/18, DumitruTudor Dorobantu. 40 European Court of Justice (Grand Chamber), Judgment (21 December 2011), C-411/10 and C-493/10, N.S.

162

A. Di Stasi and A. Festa

4 Mutual Trust as a Policy to Bolster the Application of the Rule of Law? Notwithstanding the different standards required in EU asylum law and EU criminal law, the picture described above makes it crystal clear that the Court of Justice’s approach to mutual trust has evolved over time, with the presumptive element much more carefully balanced against the credibility of such presumption, and the judicial authorities playing a major role in preserving trustworthiness. Indeed, if automaticity and recognition are the rule in a system of judicial cooperation, the two-pronged test already establishes a fracturing in the mutual trust scheme, taking on new hues in the ongoing rule of law challenge. Once again, surrender cases are the litmus test for the EU’s approach to mutual trust. In particular, since the EAW constitutes a form of judicial cooperation in which judicial independence is right at the centre as an essential precondition of the healthy functioning of this tool, the crucial issue arising in the rule of law crisis is whether or not a lack of independence of the issuing judicial authority is able to determine the suspension of cooperation.41 The Court of Justice dealt with a similar issue in the famous LM case.42 More precisely, the question pending before the Luxemburg judges can be summarized as: if the authority of the issuing EAW is located in a country where judicial independence has been structurally compromised, can the EAW be refused?43 Recalling the ‘Portuguese Judges’ case-law, the Court extensive recapitulated Member States’ obligation to guarantee the independence of the national judiciary as a basic precondition of the proper functioning of the European legal community and, starting from this premise, ruled that the transfer of individuals from one EU Member State to another is prohibited if a lack of judicial independence threatens the essence of the right to a fair trial. Indeed, according to the Court, the national judge must assess whether there is both a general and a specific risk linked to the lack of judicial independence of the authorities issuing the EAW potentially leading to a breach of effective judicial protection as enshrined in Article 47 of the Charter. As in Aranyosi, the assessment must first consider systemic or generalized deficiencies surrounding the justice system’s operation in the issuing State. Subsequently, there must be precise and specific elements showing that such systemic deficiencies are likely to have an impact at the level of the State’s courts with jurisdiction over the proceedings. This ruling is remarkable, since the Court recognizes that limits to the principle of mutual trust can also be set by the need to ensure the rule of law value and to guarantee fundamental rights not protected in absolute terms if there is a real risk to 41

Mancano (2021), Rosanò (2020), Caianiello and Manes (2020), Konstadinides (2019), Marino (2018), and Michel (2018). 42 European Court of Justice (Grand Chamber), Judgment (25 July 2018), C-216/18 PPU, LM. See Scheppele (2018). 43 Carrera and Mitsilegas (2018).

Breaches of the Rule of Law in the EU: What Implications for the. . .

163

their essence: in this case, exceptions to the principle of mutual trust derive from the fundamental rights under Article 47(2) CFR, but this novel approach could also open the way for other relative rights-based derogations deeply affecting the structure of the Area of Freedom, Security and Justice.44 In this way, in LM, the rule of law is used as an apparent limitation to mutual trust, but the ECJ seems to have gone even further, using mutual trust as a policy to foster the application of the rule of law in Member States. In fact, the Court underlines that limitations on mutual trust must operate with a view to restoring trust instead of completely compromising it. In the Court’s reading, the underlying goal of the two-pronged test is to reinforce the level of trust among national legal systems and their ability to provide equivalent and effective protection of the fundamental rights recognized at the EU level through judicial dialogue between the issuing and executing judicial authority: such dialogue would foster mutual trust, since it would imbue it with content, that is, respect for the rule of law. Moreover, if considering that surrender would be possible in case the rule of law violation ends, then the persistence of the obligation on the Member State to make the transfer possible would translate into a form of pressure for the State involved that should make every effort to implement it. At best, this pressure could lead to overall improvements in the Member State concerned, reversing the prerequisites of mutual trust.45 Nevertheless, the practical hurdles imposed by the Court on judicial authorities in the burden of proof of such violations in individual cases make the goal much more complicated to achieve in concrete terms. These difficulties, coupled with the worsened systemic deficiencies concerning the independence of the judiciary in Poland, led the District Court of Amsterdam to question the tenability of the ECJ’s LM ruling, asking the Luxemburg judges whether or not the national court as executing authority must still perform the aforementioned two-pronged test. In the L and P judgement of 17 December 2020,46 the Court responded by emphasizing the exceptional circumstances doctrine, affirming that even an increase in the systemic or generalized deficiencies concerning judicial independence does not in itself justify the refusal of the judicial authorities of other Member States to execute the EAW issued by a Polish judicial authority. Before declining to execute the EAW issued by that Member State, the executing court should lead the evidence-gathering process and apply the two-pronged test to the facts, as stated in the LM case. Systemic deficiencies in the issuing State concerning the protection of a fundamental right directly linked to Article 2 TEU

44

Wendel (2019). Pistoia (2017), pp. 49–50. 46 European Court of Justice (Grand Chamber), Judgment (17 December 2020), C-354/20 PPU and C-412/20 PPU, Openbaar Ministerie. See, more recently, also European Court of Justice (Grand Chamber), Judgment (31 January 2023), C-158/21, Puig Gordi, in which the need for the two-step test is reaffirmed. 45

164

A. Di Stasi and A. Festa

are insufficient; the risk that those deficiencies will affect the person concerned in the specific case should be proven, having regard to his personal situation, the nature of the offence for which he is being prosecuted, and the factual context that forms the basis of the EAW. Although the Court’s test does not make cooperation easier, it is also the case that an interpretation to the contrary would amount to denying the status of the issuing judicial authority to all Polish courts, leading to a de facto suspension of the EAW for Polish judges, while the preamble of the EAW FD expressly reserves the general suspension of trust between the judicial authorities of Member States to the political level. As the Court specified, as long as the European Council has not taken a decision under Article 7(2) TEU determining a serious and persistent violation of the values referred to in Article 2 TEU, the judicial authority may only refrain from giving effect to an EAW in exceptional circumstances following a specific and precise assessment of the particular case. Despite the fact that this reading could be said to disregard the historical evolution of Article 7 TEU, since paragraph 1 did not exist at the time the Framework Decision was drafted,47 worth noting is that accepting that the judges or courts of a Member State can no longer be considered independent en masse would have prevented individual Polish judges from continuing to submit references to the Court of Justice, depriving them of a mechanism, which is playing a key role in relation to resisting the Polish government’s reforms. While the Constitutional Tribunal and the Disciplinary Chamber of Supreme Court can no longer be considered independent,48 it is still not possible to ignore and destroy the efforts of ordinary judges who need tools to act against abuses of executive power. However, in the attempt to preserve the integrity of the EU constitutional fabric and allow keeping a channel of cooperation with Polish courts open, the Court transformed Member States into watchdogs of their peers, which is a not entirely unproblematic: the decentralization of the assessment of judicial independence to a multitude of national courts is bound to produce a multiplicity of potentially contradictory voices undermining legal certainty. In this respect, the Court of Justice could have assumed greater responsibility in offering Member States centralized guidance on the application of the rule of law exceptions in order to provide legal certainty and equality before the law, at least for a period of time.

47

The preventive arm has been added in the meantime, raising the question of whether the drafters of the Framework Decision intended to refer to Article 7 as such or not. In this sense, it is possible to argue that the drafters of the FD EAW intended to refer to Article 7 as a whole, including the preventive arm. See Bárd and Van Ballegooij (2018). 48 European Court of Human Rights, Judgment (7 May 2021), 4907/18, Xero Flor w Polsce sp. Z o.o. v. Poland; European Court of Human Rights, Judgment (22 July 2021), 43447/19, Reczkowicz v Poland.

Breaches of the Rule of Law in the EU: What Implications for the. . .

165

5 Concluding Remarks: The Principle of Non-Regression as an Embankment to the Erosion of Rule of Law and Mutual Trust The aforementioned jurisprudence has proven the role of judicial independence as vital in the dynamic relationship between mutual trust and the rule of law: on the one hand, mutual trust alone emerges as a fragile basis if not supported by adherence to the rule of law value with judicial independence as an essential precondition. On the other hand, independence of the judiciary, being directly related to the respect for EU values, affects the credibility of presuming Member States’ compliance with fundamental rights, which is the very foundation of mutual trust. This assumption, making judicial independence the backbone of the system, finds additional confirmation in another seminal judgement that aimed in some ways to uphold the rule of law while fostering mutual trust among Member States. We refer here to the ruling adopted by the Court of Justice on 20 April 2021 in the Repubblika case.49 As known, the decision was formally about the constitutional appointment procedures of the Maltese judiciary, but the reasons for its relevance are not linked to the conformity of those provisions with EU law. The Court, in fact, found no violation of Article 19 TEU in the specific case. What is remarkable is the legal reasoning of the Luxemburg judges that, reading between the lines, sent a message not only to Malta, but to all the Member States, particularly Poland. In fact, going beyond the focus on judicial independence, the Court introduced a new principle to address the backsliding of values at the national level, namely the non-regression principle. In reality, non-regression is not completely unknown to EU law, already used in areas such as the environmental, but in this context, acquiring a new meaning and function. In particular, with a normative basis founded in a joint reading of Articles 2 and 49 TEU, it implies that EU Member States—that have freely and voluntarily committed to the common values referred to in Article 2 TEU—cannot postaccession adopt rules undermining judicial independence, as this would violate the second subparagraph of Article 19(1) TEU. In fact, in the Court’s new reading, the combined application of the referred norms prohibits national authorities from adopting new legislation, including constitutional provisions, which could constitute a reduction or regression in the protection of the rule of law value and judicial independence. As an obligation not to fall below the Article 49 TEU threshold, the Court in this way established a sort of general ‘non-backsliding principle’ that provides an embankment to the erosion of mutual trust among Member States and from which a renewed understanding of the EU itself seems to emerge. Indeed, from ASJP to the Repubblika case-law, passing through the LM and L and P judgements, the rule of

49

Festa (2021a), Bartoloni (2021), Piccone (2021), and Leloup et al. (2021).

166

A. Di Stasi and A. Festa

law value, commonly regarded as non-justiciable, is increasingly supported with the possibility of stricter enforcement as a fully-fledged legal standard imposable by the Court of Justice on Member States.50 Similarly, Article 2 TEU, far from being a constitutional axiom that does not give rise to judicially enforceable standards,51 read in conjunction with Article 19 TEU in light of Article 47 of the Charter, is becoming more and more usable to challenge national measures, even in areas where EU harmonization is precluded. Moreover, although the non-regression principle by now only relates to the rule of law, in the foreseeable future, it might also be used to protect other values laid down in Article 2 TEU, opening the path to crucial progress in the field of EU constitutional law.52 In reality, the proposed interpretative line of jurisprudence is already reshaping the meaning and function of both mutual trust and the rule of law, reflecting a new understanding of the most essential features of EU constitutionalism. As Professors Pech and Kochenov argue, the Court’s rethinking of the role of Article 19 TEU and the non-regression principle offers a new framing for the transition from presumptive trust to substantive rule of law.53 In this context, the ongoing rule of law crisis has contributed to the progressive emergence of the constitutional nature of the EU, and the two-pronged test developed by the Court has stimulated closer integration between the systems, shifting from blind trust to gained trust, towards a qualified and individual assessment based on a deeper understanding of national identities.54 If, as the historian Yuval Noah Harari teaches, for any form of cooperative organization to function, two conditions must be met at least, i.e. that either all members know each other intimately—thus knowing if they can trust each other and whether helping each other is worthwhile—or the group finds its unity around common and shared values,55 put into the EU context, it would seem that to preserve the EU’s constitutional fabric when the basic common vision appears to falter, the Court is working on both levels. With the two-pronged test and the non-regression principle, on the one hand, it is encouraging a deeper understanding of national systems, on the other hand, it is reiterating the need to respect the minimum threshold of values imposed by Articles 2 and 49 TEU in order to reinforce the ties between Member States. Nevertheless, in attempting to make mutual trust coexist with systemic deficiencies in the rule of law, the Court is espousing a fragile balance that works as long as the political institutions will not adopt a serious position on the Article 7 procedures (still pending against Poland and Hungary), and as long as this balance will not be called into question by further developments in national contexts.

50

Rossi (2020). As in Herlin-Karnell (2014), p. 36. 52 Kochenov (2013), p. 148. 53 Pech and Kochenov (2021), p. 167. 54 Xanthopoulou (2020). 55 Harari (2017), pp. 38–41. 51

Breaches of the Rule of Law in the EU: What Implications for the. . .

167

In this respect, the recent Polish Constitutional Tribunal ruling in case K 3/21 should be considered with concern. Indeed, on the Prime Minister’s motion, many fundamental provisions of the European Treaties (such as Articles 1, 4, para. 3, and 19 TEU) have been declared as unconstitutional insofar that they would deprive the Republic of Poland ‘to function as a sovereign and democratic State’ and grant domestic courts to bypass the Constitution and the Constitutional Tribunal rulings and to review the legality of the procedure for appointing a judge.56 In an unprecedented move, the Tribunal seems to ban the primacy of EU law in Poland, striking at the very heart of European rule of law. Similarly, on December 2021, the Romanian Constitutional Court challenged the same principle, stating that national courts cannot enforce EU law where it requires the disapplication of a national norm already declared in accordance with the Constitution. For the time being, the Russian aggression against Ukraine has led to a changing landscape in the EU Rule of law saga, with an undeniable and inevitable impact on European institutional dynamics. However, if the European institutions are now looking for a new form of cohesion among Member States, one thing is certain: relationships are hardly possible without trust, and once it has been eroded, it is not easy to rebuild.57

References Bárd P, Van Ballegooij W (2018) Judicial Independence as a precondition for mutual trust? The CJEU in Minister for Justice and Equality v. LM. New J Eur Crim Law 9(3):353–365 Bartoloni M-E (2021) Limiti ratione temporis all’applicazione del principio della tutela giurisdizionale effettiva: riflessioni in margine alla sentenza Repubblika c. Il-Prim Ministru. Osservatorio europeo 1–14 Bonelli M, Claes M (2018) Judicial serendipity: how Portuguese judges came to the rescue of the polish judiciary: ECJ 27 February 2018, Case C-64/16, Associação Sindical dos Juízes Portugueses. Eur Const Law Rev 14(3):622–643 Caianiello M, Manes V (2020) Introduzione al diritto penale europeo. Torino Carlino V, Milani G (2019) To trust or not to trust? Fiducia e diritti fondamentali in tema di mandato d’arresto europeo e sistema comune di asilo. Freedom Secur Just Eur Legal Stud 2:64–89 Carpano E (2005), État de droit et droits européens: L’évolution du modèle de l’État de droit dans le cadre de l’Européanisation des systèmes juridiques. Paris

56

Polish Costitutional Tribunal K 3/21 (7 October 2021). https://trybunal.gov.pl/en/hearings/ judgments/art/11662-ocena-zgodnosci-z-konstytucja-rp-wybranych-przepisow-traktatu-o-uniieuropejskiej. Steinbeis (2021) and Jaraczewski (2021). After ECJ Vice-President Rosario Silva de Lapuerta ordering the Disciplinary Chamber of the Polish Supreme Court not to operate until the ECJ issues a definitive ruling in the case regarding the so-called muzzle-law, in the case P 7/20, the Polish Constitutional Tribunal had already ruled on 14 July 2021 that interim orders of the Court of Justice regarding the structure and jurisdiction of Polish courts are not compliant with the Polish Constitution. On the topic, Wójcik (2021) and Koncewicz (2021). 57 Von Bogdandy (2018a) Beyond the Rechtsgemeinschaft with Trust – reframing the Concept of European Rule of Law, p. 13, and Gerard (2016).

168

A. Di Stasi and A. Festa

Carrera S, Mitsilegas V (2018) Upholding the Rule of Law by Scrutinizing Judicial Independence: the Irish Court’s Request for a Preliminary Ruling on the European Arrest Warrant. CEPS Commentary (11 April) Di Stasi A (2012a) (Lemma) Spazio europeo di libertà, sicurezza e giustizia (cooperazione giudiziaria in materia penale). In: A.A.V.V. Digesto del processo penale. Torino, pp 1–27 Di Stasi A (2012b) Spazio europeo di libertà, sicurezza e giustizia e cooperazione giudiziaria in materia penale: il rispetto dei diritti fondamentali e della diversità tra ordinamenti nazionali e tradizioni giuridiche. In: Kalb L (ed) ‘Spazio europeo di giustizia’ e procedimento penale italiano. Adattamenti normativi e approdi giurisprudenziali, Torino, pp 3–54 Di Stasi A (2019) Tutela dei diritti fondamentali e Spazio europeo di giustizia. L’applicazione giurisprudenziale del titolo VI della Carta. Napoli Di Stasi A, Rossi L-S (eds) (2020) Lo Spazio di libertà, sicurezza e giustizia. A vent’anni dal Consiglio europeo di Tampere. Napoli Drzemczewski A (2017) Le Conseil de l’Europe et l’État de droit: à propos de la liste des critères de l’État de droit élaborée par la Commission de Venise. RUDH:16 Düsterhaus D (2017) In the court(s) we trust – a procedural solution to the mutual trust Dilemma. Freedom Secur Just Eur Legal Stud 1:26–44 Efrat A, Hirsch S, Magen A, Stav M (2021) Working paper on structural factors, actors, and dynamics strengthening or undermining intra-EU commitment to democratic governance. Reconnect 3:8 Elósegui M, Miron A, Motoc I (eds) (2021) The rule of law in Europe. Recent Challenges and Judicial Responses. Cham Fartunova M (2016) La coopération loyale vue sous le prisme de la reconnaissance mutuelle: quelques réflexions sur les fondements de la construction européenne. Cahiers de Droit Européen: 193–219 Férnandez Esteban M-L (1999) The Rule of Law in the European Constitution. Boston Festa A (2020) L’Unione europea e l’erosione dello Stato di diritto in Polonia. Freedom Secur Just Eur Legal Stud 1:145–165 Festa A (2021a) Indipendenza della magistratura e non regressione nella garanzia dei valori comuni europei. Dal caso Repubblika alla sentenza K 3/21 del Tribunale Costituzionale polacco. Freedom Secur Just Eur Legal Stud 3:72–94 Festa A (2021b) Lo Stato di diritto nello spazio europeo. Il ruolo dell’Unione europea e delle altre organizzazioni internazionali. Napoli, pp 129–180 Gerard D (2016) Mutual trust as constitutionalism? In: Brouwer E, Gerard D (eds) Mapping mutual trust: understanding and framing the role of mutual trust in EU law, EUI Working Papers 13:69– 75 Gonçalves A (2018) The balance between the protection of fundamental rights and the EU principle of mutual trust. Freedom Secur Just Eur Legal Stud 1:111–131 Grousot X, Martinico G (2020) Mutual trust, the rule of law and the charter: a new age for judicial activism. Eulawlive 2:10–12 Harari Y-N (2017) Sapiens. Da animali a dèi. Breve storia dell’umanità. Firenze-Milano Herlin-Karnell E (2014) Constitutional principles in the EU area of freedom, security and justice. In: Acosta D, Murphy C-C (eds) EU security and justice law. Hart Publishing Jaraczewski J (2021) Gazing into the Abyss. The K 3/21 decision of the Polish Constitutional Tribunal. Verfassungsblog (October 2021) Kochenov D (2013) On policing Article 2 TEU compliance. Reversing Solange and systemic infringements analysed. Polish Yearb Int Law 33:145–170 Koncewicz T-T (2021) Poland and Europe at a Critical Juncture. What has happened? What is happening? What’s next?. Verfassungsblog (16 August) Konstadinides T (2019) Judicial independence and the rule of law in the context of non-execution of a European arrest warrant: LM. Common Mark Law Rev 56(3):743–769 Lang I-G (2020) No solidarity without loyalty: why do member states violate EU migration and asylum law and what can be done? Eur J Migr Law 22:39–59

Breaches of the Rule of Law in the EU: What Implications for the. . .

169

Lazzerini N (2016) Gli obblighi in materia di protezione dei diritti fondamentali come limite all’esecuzione del mandato d’arresto europeo: la sentenza Aranyosi e Căldăraru. Diritti Umani e Diritto Internazionale 2:445 ff Leloup M, Kochenov D, Dimitrovs A (2021) All the eyes on Case C-896/19 Repubblika v Il-Prim Ministru. Reconnect 15:3–21 Lenaerts K (2015) The principle of mutual recognition in the area of freedom, security and justice. Il Diritto dell’Unione Europea 3:528 Lenaerts K (2017) La vie après l’avis: exploring the principle of mutual (yet not blind) trust. Common Mark Law Rev 54:805–840 Lombardi GA (2021) Il rifiuto del MAE per il rischio di violazione dei diritti umani, tra sentenze interpretative e mancate previsioni legislative. Archivio Penale 1:31 Magen A, Pech L (2018) The rule of law and the European Union. In: May C, Winchester A (eds) Handbook on the rule of law. Cheltenham, pp 237 ff Maiani F, Migliorini S (2020) One principle to rule them all? Anatomy of mutual trust in the law of the area of freedom, security and justice. Common Mark Law Rev 57:7–44 Mancano L (2021) You’ll never work alone: a systemic assessment of the European Arrest Warrant and Judicial Independence. Common Mark Law Rev 58:683–718 Marino S (2018) La mutua fiducia ai tempi della crisi dei valori: il caso del mandato d’arresto europeo. Il Diritto dell’Unione Europea 4:633 ff Mavrouli R (2019) The challenge of today’s area of freedom, security and justice: a re-appropriation of the balance between claims of national security and fundamental rights. Freedom Secur Just Eur Legal Stud 2:90–119 Mengozzi P (2017) L’applicazione del principio di mutua fiducia e il suo bilanciamento con il rispetto dei diritti fondamentali in relazione allo spazio di libertà, sicurezza e giustizia. Freedom Secur Just Eur Legal Stud 2:1 Michel V (2018) Des suites de l’arrêt ‘Aranyosi et Căldăraru’. Revue du Droit de l’Union Européenne 4:276–289 Miglio A (2018) Indipendenza del giudice, crisi dello stato di diritto e tutela giurisdizionale effettiva negli Stati membri dell’Unione europea. Diritti umani e diritto internazionale 2:421 ff Palombella G (2014) The EU’s sense of the rule of law and the issue of its oversight. EUI Working Paper RSCAS 125:1–17 Panella L (2017) Mandato di arresto europeo e protezione dei diritti umani: problemi irrisolti e ‘incoraggianti’ sviluppi giurisprudenziali. Freedom Secur Just Eur Legal Stud 3:5–33 Pech L, Grogan J (2020) Meaning and scope of the EU rule of law. Reconnect 7:26 ff Pech L, Kochenov D (2021) Respect for the rule of law in the case law of the European Court of Justice: a casebook overview of key judgements since the Portuguese judges case. Stockholm Pech L, Platon S (2018) Judicial independence under threat: the court of justice to the rescue in the ASJP case. Common Mark Law Rev 55(6):1827–1854 Pérez A-T (2020) From Portugal to Poland: The Court of Justice of the European Union as a watchdog of judicial independence. Maastricht J Eur Comp Law 27(I):105–119 Piccone V (2021) Indipendenza della magistratura e clausola di non regresso: un commento a Repubblika, Grande Sezione 20 aprile 2021 (causa C-896/19). Labour Law Community (23 April) Pistoia E (2017) Lo status del principio di mutua fiducia nell’ordinamento dell’Unione secondo la giurisprudenza della Corte di giustizia. Qual è l’intruso? Freedom Secur Just Eur Legal Stud 2: 27–51 Prechal S (2017) Mutual trust before the court of justice of the European Union. Eur Pap 2(1):75–92 Regan E (2018) The role of the principles of mutual trust and mutual recognition in EU law. Il Diritto dell’Unione Europea 2:231 Rosanò A (2020) Once Aranyosi, Always Aranyosi? Considerazioni sulla riproponibilità del test Aranyosi e Căldăraru nell’ambito di alcuni strumenti di cooperazione giudiziaria in materia penale diversi dal mandato di arresto europeo. Studi sull’Integrazione Europea 1:163 ff

170

A. Di Stasi and A. Festa

Rossi LS (2020) Le valeur juridique des valeurs: L’article 2 TEU. Revue Trimestrielle de Droit Européen 3:639–657 Rossi L-S (2021) Fiducia reciproca e mandato d’arresto europeo. Il ‘salto nel buio’ e la rete di protezione. Freedom Secur Just Eur Legal Stud 1:1–14 Ruggeri A (2020) Stato di diritto sovranazionale e Stato di diritto interno: simul stabunt vel simul cadent. Freedom Secur Just Eur Legal Stud 3:10–48 Salazar L (2007) La costruzione di uno spazio penale comune europeo. In: Grasso G, Sicurella R (ed) Lezioni di diritto penale europeo. Milano, pp 395–465 Salerno G-M (2020) European rule of law: un principio in cerca d’autore. Federalismi.it 19:2–22 Sawicki J (2020) L’Unione europea come argine all’erosione dello stato costituzionale di diritto. Ai margini di una comparazione complessa, e forse un po’ ingrata. Costituzionalismo.it 3:153–215 Scheppele KL (2018) Rule of law retail and rule of law wholesale: the ECJ’s (Alarming) ‘Celmer’ decision. Verfassungsblog (28 July) Sciarra S (2018) Rule of law and mutual trust: a short note on constitutional courts as ‘Institutions of Pluralism’. Il Diritto dell’Unione Europea 3:431–444 Steinbeis M (2021) The Exit Door. Verfassungsblog (8 October) Ugartemendia Eceizabarrena J-I (2021) The fundamental right to an effective judicial protection and the rule of law in the EU and their impact on member states’ administration of justice. Freedom Secur Just Eur Legal Stud 1:238–264 Villani U (2020) Sul controllo dello Stato di diritto nell’Unione europea. Freedom Secur Just Eur Legal Stud 1:10–27 von Bogdandy A (2005) I principi costituzionali dell’Unione europea. Federalismi.it 6:1–51 von Bogdandy A (2018a) Beyond the Rechtsgemeinschaft with trust – reframing the concept of European rule of law. MPIL Research Paper 2 von Bogdandy A (2018b) Ways to frame the European rule of law: Rechtsgemeinschaft, trust, revolution, and Kantian peace. Eur Const Law Rev 14:675–699 Weatherill S (2016) Law and values in the European Union. Oxford University Press, Oxford Wendel M (2019) Mutual trust, essence and federalism – between consolidating and fragmenting the area of freedom, security and justice after LM. Eur Const Law Rev 15:17–49 Willems A (2021) About the principle of mutual trust in EU criminal law. Hart, London Wójcik A (2021) Constitutional Tribunal ruled: CJEU interim orders do not apply in Poland. Rule of Law (16 July) Xanthopoulou E (2020) Fundamental Rights and Mutual Trust in the Area of Freedom, Security and Justice: A Role for Proportionality?. Bloomsbury, Oxford

Angela Di Stasi is Full Professor of European Union Law and International Law at the Department of Legal Sciences of the University of Salerno and Professor of ‘Sustainable Development in the Mediterranean Area: Fundamental Legal Concepts’ at the Department of Pharmacy of the University of Salerno. General Secretary of the Italian Society of International and EU Law (SIDIISIL), she is Founder and Director of the ‘Observatory on the Area of Freedom, Security and Justice’, Founder and Director of the online scientific review Freedom, Security & Justice: European Legal Studies, Director of the Study and Research Series ‘Freedom, Security & Justice: European Legal Studies’ and Director of several Specialization courses in European Union Law. She is Project Coordinator (2020–2023) of the PRIN ‘International Migrations, State, Sovereignty and Human Rights: Open Legal Issues’ and Jean Monnet Chair Holder (2017–2020) on ‘Judicial Protection of Fundamental Rights in the European Area of Freedom, Security and Justice’. Rector’s Delegate for equal opportunities, she is Member of the Scientific and Editorial Boards of several scientific Journals, Member of the Management Committee of the SIDI-ISIL interest Group ‘Fundamental Rights and Citizenship in the Area of Freedom Security and Justice’, and author of over one hundred scientific publications in the fields of International and EU law.

Breaches of the Rule of Law in the EU: What Implications for the. . .

171

Angela Festa is a Researcher and Lecturer of European Union Law at the Department of Law of the University of Campania ‘Luigi Vanvitelli’. She has been Research Fellow in International Law (Research Project: The independence of the judiciary and the Rule of law in the ‘dialogue’ between European Courts) at the Department of Legal Sciences of the University of Salerno, where she has also been Adjunct Professor of ‘Rule of Law and Fundamental Values of the European Union’. She holds a Ph.D. in International, European and Comparative Law. She is author of the peer reviewed monograph ‘Lo Stato di diritto nello spazio europeo. Il ruolo dell’Unione europea e delle altre organizzazioni internazionali’, Editoriale Scientifica, 2021. She is member of the Italian Society of International Law (SIDI-ISIL), of AISDUE (Associazione Italiana Studiosi di Diritto dell’Unione europea) and of Unione Forense per la Tutela dei diritti umani. She is part of the Editorial Board of the online Review Freedom, Security and Justice: European Legal Studies, www.fsjeurostudies.eu. Her main research interests include Fundamental Rights, European values, Rule of law, EU area of freedom, security and justice and EU migration law.

A Look Behind the Legal Scene: Philosophical Stakeholder Responses to Fundamental Human Rights Anja Matwijkiw and Bronik Matwijkiw

Abstract This chapter takes a step behind the legal scene by exploring the theoretical stakeholder frameworks that have contributed to different approaches to analysis and assessment of fundamental human rights. The protection of fundamental human rights is a key area of attention in relation to the Western Balkans’ accession to the European Union (EU). The terminology that is used to guide the integration often revolves around stakeholders, just as the strategy of multi-stakeholder cooperation reflects that same link with frameworks from business management theory and corporate social responsibility (CSR) doctrine. Since the frameworks come with diverging ideas for central concepts and aspirations, the philosophical contrasts that emerge should not be overlooked at a point in time where the potential and official candidate countries are in the process of taking steps towards full membership. The particular type of values project that underpins EU accession and integration reveals a bias in favor of the so-called ‘broad’ stakeholder version. However, the ‘narrow’ counterpart dismisses many of the agenda items that concern justice, solidarity, and security. Apart from providing examples that help to clarify the differences, the objective is to (re)set the stage for enhanced awareness of interdisciplinary insights, especially those that can contribute to a more nuanced and critical discourse among policymakers.

A. Matwijkiw (✉) Indiana University Graduate School and Philosophy Program, IU Northwest, Gary, IN, USA Affiliated Faculty, Institute for European Studies, IU Bloomington, Bloomington, IN, USA e-mail: [email protected] B. Matwijkiw Visiting Researcher, Faculty of Law, University of Zagreb, Zagreb, Croatia © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 T. Russo et al. (eds.), Solidarity and Rule of Law, European Union and its Neighbours in a Globalized World 9, https://doi.org/10.1007/978-3-031-29227-9_10

173

174

A. Matwijkiw and B. Matwijkiw

1 Introduction: The WB6—From Engagement to Enlargement The last decade has been unprecedented for the European Union (EU) because Brexit—the withdrawal of the United Kingdom (UK) from the EU—interrupted its key policy of enlargement for the continent. The event pulled in the wrong direction by subtracting an important building block from the community and, ipso facto, a new peace and security variable as regards international relations was introduced.1 Prior to this crack in the vision of a united and therefore stable and strong Europe in the era of globalization, Croatia became the 28th Member State in 2013. Croatia’s accession, which followed that of Romania and Bulgaria, marked the sixth enlargement. Yet other regional players communicated their pro-integration intention by submitting their application for EU membership, almost by analogy to a domino effect among the Western Balkans. Montenegro, Serbia, the Republic of North Macedonia, and Albania are official candidates. Accession negotiations and chapters have been opened with Montenegro and Serbia, whereas Bosnia and Herzegovina and Kosovo are, at least in one sense, last in line by virtue of being potential candidate countries. The UK example has not functioned as a deterrent for the remaining Western Balkans, the so-called WB6. Member State expressions of populist nationalism and accompanying threats to justice in the form of reactions against multiculturalism and human rights, as illustrated by the so-called burqa ban trend in France, Belgium, Denmark and other places, do not set the best example for a region with its own issues concerning identity politics.2 What is more, EU antagonism and ‘postinternational politics’ are common implications of such phenomena.3 This does not have to be, though. In the case of the countries in Central and Eastern Europe that constitute the Western Balkans, geopolitical and historical facts appear to be shared direction posts for the future, in effect, the cross-roads they are all at: between the EU and Russia and China. However, when WB6 leaders point to the map and discuss past country-specific experiences and current aspirations, the pro-integration argument may problematize the ‘magnet’ premise and rationale: that the EU can ‘help countries recover, grow and prosper’.4 Such a magnet is not necessarily a victorious EU pin for the map. Recently, observers questioned the engagement among ‘the ruling elites’ on the basis of Montenegro’s involvement in

1

For a post-Brexit analysis of the impact, see Martill and Sus (2021). For a new form of populism in Montenegro, dominated by neither a far-right nor a far-left discourse, but controlled by leading political elites in the country’s government, see Dzankic (2017). For the anti-pluralist, authoritarian, and social inequality implications, see Centre for Civic Education (2018). 3 Note that postinternational politics aims to end liberal non-democracy. See Ferguson and Mansbach (2004). 4 Borrell (2021). 2

A Look Behind the Legal Scene: Philosophical Stakeholder Responses. . .

175

China’s Belt and Road Initiative (BRI).5 Serbia’s ‘intentions are ambiguous’, too.6 Russia is crucial for its national sovereignty according to the ruling Progressive Party, and commentators also list Serbia as a country China is trying to change ‘from the inside’.7 The BRI was officially launched as an effort to ‘enhance global connectivity, communication and cooperation, so as to foster a more balanced and equitable world system’8 although the trade and business activities are often criticized as ‘imperial’ connotations of Beijing’s logistical project.9 Expansion is the realpolitik agenda in other words. However, while talk about ‘expansion’ may sound less diplomatic than ‘EU enlargement,’ this foreign affairs policy is explicitly defined as ‘the essence of the EU’s soft power to gradually extend peace, democracy and prosperity in Europe’10—a so-called ‘grand strategy’ with which to win them over to us and our way.11 For EU leaders, both the magnet and the pin are reciprocal stakes. Furthermore, both the magnet and the pin are symbolic of the fact that there are two sides to conjoin. Cohesion is contingent on clarity of commitment, though;—that there is no major distraction or divergence from the values that constitute the foundation for the international order called the EU. In this regard, constancy is required. In turn, this is why the leap from engagement to enlargement has strings attached. To borrow a philosophical explanation: if values and principles have not been internalized and implemented to the point where they have become a part of X’s identity, makeup and design, the country in question is not sufficiently like us—and the practice sessions for external partners have to continue until there is no difference between doing and being. Successful state rebranding—to an EU Member State—is about authenticity and integrity. Experts on EU law know that the Mens Rea principle is an admission to an epistemological limit, that the Other does not have direct access to the mental ‘things’ (cf. rea) that matter: to the thoughtprocesses behind a statement, declaration, or action. Transferring the admission to the leap from engagement to enlargement, the learning lesson is that Montenegro and Serbia’s real intentions have to be inferred from the concrete steps and measures that are put in place—whereas pure speculation should be dismissed. Like Croatia, any country from the Western Balkans that has had its candidacy recognized must satisfy the Copenhagen criteria, which were established by the European Council in 1993.12 These stipulate a triple clause that, in effect, coincides

5

Marović (2021). Miteva (2021). 7 Wang and Rasare (2021). 8 Zhexin (2018), p. 327. 9 Rimmer (2020), p. 153. 10 European Commission (8 November 2006), Commission proposes renewed consensus on enlargement. 11 Matwijkiw and Matwijkiw (2018a), p. 110. 12 For an examination of their origin (as criteria established in relation to Central and Eastern European countries), evolution (to standard accession criteria) and enforcement, see Hillion (2014), pp. 1–22. 6

176

A. Matwijkiw and B. Matwijkiw

with a negative test for status as a European fragile state. For admission, its state performance and/or capacity must conform to the following conditions: • stability of institutions guaranteeing democracy, the rule of law, human rights and respect for and protection of minorities;13 • functioning market economy and the ability to cope with competitive pressure and market forces within the EU; • ability to take on the obligations of membership, including the capacity to effectively implement the rules, standards and policies that make up the body of EU law (the acquis), and adherence to the aims of political, economic and monetary union. Once again like Croatia, a successful transition from candidate to Member State is also subjected to the stricter conditionality instituted in 2006 by the European Council’s ‘renewed consensus on enlargement,’ together with the EU Commission’s 2020 revised methodology, as outlined in ‘Enhancing the accession process—A credible EU perspective for the Western Balkans’.14 Without addressing all the implications of the various steps and stages of the process—the rate of which largely depends on that particular country’s own merits and progress as accounted for in annual reports, the EU reaffirmed and reinforced a stronger rule of law emphasis. This means that (unlike Croatia) ‘cross-fertilisation of efforts beyond individual chapters’ will be pursued in ‘thematic clusters’ and with a view to ‘structural weaknesses. . . in particular in the area of the fundamentals,’ which encompass fundamental rights.15 The EU is not taking a revolutionary approach, but the

A country must satisfy this first criterion to have EU accession negotiations launched. The revised methodology includes four principles (credibility, predictability, dynamism, and a stronger political steer) and six thematic ‘policy clusters’ ((1) fundamentals, including rule of law, (2) internal market, (3) competitiveness and inclusive growth, (4) green agenda and sustainable connectivity, (5) resources, agriculture, and cohesion, and (6) external relations). See European Commission (8 November 2006), Commission proposes renewed consensus on enlargement; Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions (5 February 2020a), Enhancing the Accession Process—A credible EU perspective for the Western Balkans (Communication), p. 1. For rule of law, economy and functioning of democratic institutions and public administration as ‘fundamental of EU Membership,’ see Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions (6 October 2020b), 2020 Communication on EU Enlargement Policy, p. 4. 15 The fundamentals are: Judiciary and fundamental rights; Justice, Freedom and Security; Economic criteria; Functioning of democratic institutions; Public administration reform; Public procurement; Statistics; Financial control. Note that negotiations in the area of fundamentals will be opened first and closed last. Furthermore, note that the 2020 revised methodology or approach also applies to the Economic and Investment Plan for the Western Balkans, which is accompanied by the Guidelines for the Implementation of the Green Agenda for the Western Balkans. See Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions (5 February 2020), Enhancing the Accession Process—A credible EU perspective for the Western Balkans (Communication), p. 7; European Parliament (2020), Facts Sheet on the European Union: The Enlargement of the Union. 13 14

A Look Behind the Legal Scene: Philosophical Stakeholder Responses. . .

177

reference to ‘structural weaknesses’ is admittedly signaling an expectation of securing transformation through reforms in a manner that invokes the 2004 strategy of the United Nations (UN) in response to threats to collective security: ‘to work across issues in an concerted fashion’.16 For the same reason, the alignment of political, economic and societal change highlights credibility and trust on both sides. It is a case of mixing objectivity (as regards conditionality) and control, correction and even censure (cf. the option of withdrawing concessions) in the underpinning idea of more shared responsibility and (consequently) more effectiveness. All ‘proposed clusters’ are intended as contributions to the implied ‘dynamism’.17 Superior accountability is highlighted. If the political will of leaders to implement the benchmarks against which a country’s performance is measured is ‘technical’ or nominal as opposed to evidence-based, ‘incentivised and rewarded’ progress (secured with EU assistance) should be replaced by ‘decisive measures proportionally sanctioning any serious or prolonged stagnation or even backsliding’.18 With ‘stronger monitoring’ and ‘stronger steering,’ the bar has undoubtedly been raised.19 The rationale and indeed justification is: ‘Given what is at stake, it is time to put the political nature of the process front and centre. . .’20 It is no coincidence that ethical values like credibility and trust are in the equation. Credibility and trust are precarious; that is the indirect admission. After all, to state that EU integration is a ‘top priority’ may amount to more or less empty rhetoric. 21 Then again, EU leaders have to deliver too; and ‘opening more chapters in one go’ (cf. 2020 revised methodology), thereby also allowing an accelerated accession, is seen as a good faith strategy of counteracting any waiting-game frustration which subtracts from their trust in us and our credibility.22 Since EU leaders are willing to make compromises without compromising a win-win outcome, the flexibility deal partly falls under union-oriented pragmatism. However, a setback to any further enlargement also occurred in 2020. As a consequence of the global COVID-19 pandemic, the EU seemed to proceed on the 16

A panel commissioned by Kofi Annan to help guide the UN organized the response around ‘clusters of threats,’ including poverty, disease, environmental degradation and transnational organized crime as well as inter- and intra-state conflict, weapons of mass destruction and terrorism. See UN General Assembly (2 December 2004), Note by the Secretary-General, U.N. Doc. A/59/ 565, p. 2, para. 5; Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions (5 February 2020), Enhancing the Accession Process—A credible EU perspective for the Western Balkans (Communication), p. 1. 17 Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions (5 February 2020), Enhancing the Accession Process—A credible EU perspective for the Western Balkans (Communication), p. 4, 6. 18 Ibid., p. 3, 5. 19 Ibid., pp. 3–4. 20 Ibid., p. 3. 21 ‘The EU is a strategic goal for us, but I will not condone anyone and speak out against China and Russia,’ Serbia’s President Aleksandar Vučić stated. See Szucs and Ozturk (2020). 22 European Commission (6 May 2020a), Statement by the President Von der Leyen (following the EU-Western Balkans Zagreb Summit).

178

A. Matwijkiw and B. Matwijkiw

basis of the premise that once the societal insecurity caused by the health crisis is eradicated, the access route would be reopened. This response, which is consistent with the so-called existential economic explanation thesis, became evident during the 2nd EU-WB6 high-level meeting, the Zagreb Summit, on May 6, 2020.23 Apart from a joint effort to tackle the coronavirus, the main outcome was the Zagreb Declaration that reconfirmed the European perspective (‘albeit without mentioning enlargement as a process’).24 This perspective is mediated by the importance of the rule of law and, furthermore, solidarity as an aspect of this.25 Another aspect is anticorruption, as illustrated by the two Balkan states the EU currently is hoping to get a credibility-and-trust agreement with. 26 More precisely, the 2020 county-specific reports for Serbia and Montenegro link the fight against corruption—including highlevel corruption by officials—with an effort ‘to improve the rule of law’.27 If people in positions of authority and power fail to represent the interest of the collectivity and instead pursue their own gain or advantage, the deficits translate into neglected stakes of legitimate stakeholders. The fact that the reversibility mechanism (cf. 2020 revised methodology) is specifically aimed at fundamentals that are in ‘Europe’s DNA’ means that the values and principles that guide and inform solidarity and anti-corruption are predicated on a dual concept of predictability that fuses democracy as the antithesis to authoritarianism with transparency and a responsibility to be ethical. It is both politically and economically impermissible to engage in amoral pursuits of power, prestige, and profit. If such pursuits are goals, leaders and high-level officials are playing the game of realpolitik, of aiming at powerconservation simply to remain as leaders, of using peace as a bargaining chip for justice declaring ‘Peace now, justice later’ to save their own image, of enriching themselves and their associates, e.g., by amassing vast quantities of assets, thereby harming the economy of the country and its people—and such grand corruption is, in turn, a ‘state capture’ strategy.28 What the reports describe as ‘relevant stakeholders’ primarily coincide with the citizenry as such, albeit applicable only to a certain (stakeholder) constituency in

According to one observer and commentator, ‘the idea of enlargement as a whole has lost traction.’ See Perez (2020); Lavrič and Bieber (2020); Council of the European Union (6 May 2020), EU-Western Balkans Zagreb summit. 24 European Council in Action (2020), Outcome of the Zagreb EU-Western Balkans video summit of 6 May 2020 (briefing), p. 1. 25 Ibid., pp. 3–4. 26 Note that ‘the negotiating frameworks for Serbia and Montenegro will not be amended but the proposed changes could be accommodated within the existing frameworks with the agreement of these two countries.’ See Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions (5 February 2020), Enhancing the Accession Process—A credible EU perspective for the Western Balkans (Communication), p. 1. 27 European Commission (6 October 2020c), Montenegro 2020 Report, pp. 1, 19, 62, 123; European Commission (6 October 2020d), Serbia 2020 Report, pp. 18, 28, 54. 28 For grand corruption as a phenomenon that is downplayed at the global level, see Dell (2021). 23

A Look Behind the Legal Scene: Philosophical Stakeholder Responses. . .

179

some cases, inter alia, the political opposition or religious groups.29 In 2020, the first EU-wide rule of law report was also published; and this repeated the terminology of stakes and stakeholders, as well as an emphasis on solidarity.30 The latter does not reconstruct the assumption that the state assumes the primary responsibility for the rule of law. It is equally noteworthy that while stake(holder) ascriptions cover a variety of rule of law players and parties, the terminology itself is open-ended.31 This finding can also be verified by yet other key EU documents, such as ‘Strengthening the rule of law within the Union: A blueprint for action’32 and ‘Further Strengthening the Rule of Law within the Union’.33 As it happens, this problem is due to an inherited weakness from the academic field in which the terminology of stakes and stakeholders originates, namely business management theory and corporate social responsibility (CSR) doctrine. Interdisciplinary contributions from philosophy facilitated a number of conceptual innovations in the 1980s and, in turn, these gave rise to distinctions between traditional and modern stakeholder frameworks. Given that the UN is an organization with which the EU wishes to strengthen its cooperation for the purpose of ‘upholding the rule of law at [the] global level’ and, furthermore, given that a modern stakeholder framework was adopted by the UN in 2004 and incorporated into rule of law documents, the UN is arguably a trailblazer for the new way; although no framework explications came with the rudimentary paradigm-shift.34 That granted, the way of the UN has been generalized in the position called

29 European Commission (6 October 2020c), Montenegro 2020 Report, pp. 14, 34, 105; European Commission (6 October 2020d), Serbia 2020 Report, pp. 4, 9, 12. 30 European Commission (30 September 2020b), Rule of Law: First Annual Report on the Rule of Law situation across the European Union. 31 Ibid., pp. 2, 5, 14, 19–20, 22-23, 25, 27. 32 European Commission (6 October 2020c), Montenegro 2020 Report, pp. 1, 8, 10, 13, 16. Note that this does not mention solidarity. 33 European Commission (19 June 2019a), Further strengthening the Rule of Law within the Union: State of play and possible next steps (Communication), pp. 2–3, 9, 11, 14. Note that this mentions solidarity once (p. 2). 34 Simultaneously, the UN paved the path for a modern cum broad rule of law conceptualization (‘governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards. [Rule of law] requires, as well, measures to ensure adherence to the principles of supremacy of law, equality before the law, accountability to the law, fairness in the application of the law, separation of powers, participation in decision-making, legal certainty, avoidance of arbitrariness and procedural and legal transparency’), a definition that represents a significant evolution since the mentioning of human rights principles and their protection ‘by the rule of law’ in the Preamble to the 1948 Universal Declaration of Human Rights. See UN Security Council (2004), para. 6. Comparatively, note that important rule of law references at the international level include the Preamble to the 1992 Treaty of European Union (cf. Art. 2: ‘The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities’) and the Preamble to the Charter of Fundamental Rights of the European Union (2000). Other sources are the Preamble to the Statute of the Council of

180

A. Matwijkiw and B. Matwijkiw

Stakeholder Jurisprudence.35 This falls under the ‘broad’ approach, which is an alternative to the traditional strategy that is so ‘narrow’ as to reserve the stakeholder for the market participant, first and foremost the shareholder or the stockholder.36 In the next Section, some of the important differences between the competing frameworks will be outlined. In the course of the account, it will become clear that simplistic conclusions are not possible. Since one of the shortcomings in the area of fundamental human rights and the rule of law consists in the under-researched leap from business management or CSR to international law,37 the Section may also serve as a gap filler for at least a couple of the ideas and strategies that divide the two outlooks.

2 Approximations to Clarity Through Interdisciplinary Investigations: The Stakeholder Frameworks The fact that stakeholder frameworks are anchored in business management theory and CSR necessitates a reconstructive interpretation. Subject to a few exceptions, to transfer narrow and broad outlooks to international law is something that requires an exercise of coupling stakeholder theory with legal doctrine. Once in place, stakeholder applications may also mix the different outlooks. One example is the UN Global Compact. This is designed for businesses and, therefore, it is an instrument that experts can decipher without auxiliary tools—as a broad outlook.38 In fact, only two elements are clear matches for the alternative. Coercion is a phenomenon that should not be permitted on narrow premises, thereby extending approval for Principle 4 (‘the elimination of all forms of forced or compulsory labour’), and the same is true of the anti-corruption ban on the practice of extortion (cf. Principle 10). Furthermore, while most of the UN Global Compact’s standards are in tension with (and dismissed for the same reason by) the narrow stakeholder approach, a pro-human rights compromise can be reached. The argument draws from the interdisciplinary approximation method, which couples the (narrow) theory with its closest legal counterpart. After this, the following can be made to hold. To the extent that a particular nation-state has surrendered

Europe (1949); the Preamble to the European Convention on Human Rights (1950); and case law of the European Court of Human Rights. 35 In 2004, the EU was still limiting its conceptual stakeholder tools to CSR doctrine. See EU CSR Forum (2004). For a 2010 systematized stakeholder account of international law that paved the path for the development of Stakeholder Jurisprudence, see Matwijkiw and Matwijkiw (2010). 36 For the distinction between modern or ‘broad’ versus traditional or ‘narrow(er),’ see Freeman (1984), pp. 41, 53; Friedman (1970). 37 Matwijkiw and Matwijkiw (2012). 38 UN High-Level Meeting (26 July 2000), Global Compact.; See also UN Guiding Principles on Business and Human Rights, endorsed by the Human Rights Council in its resolution 17/4 of 16 June 2021. www.ohchr.org/documents/publications/guidingprinciplesbusinesshr_en.pdf.

A Look Behind the Legal Scene: Philosophical Stakeholder Responses. . .

181

its sovereignty on a voluntary basis and, as a consequence of this, ratified or acceded to international treaty law, a narrow version of CSR may include fidelity to human rights law (cf. Principles 1-2). It remains true, however, that the reference to ‘support’ of internationally proclaimed human rights, as mentioned in Principle 1 of the Global Compact, cannot and indeed should not encompass any advocacy that puts undue pressure on countries. Traditional market theory, so the point is, can be conceptually linked with philosophy of law positions that emphasize statecentricity. Narrowly, stakes concern autonomy as a value. Together with respect of ethical customs and avoidance of serious dishonesty that deprives others of (the meta-right to respect of) their equal freedom (to make informed choices), the traditional business interest in the pursuit of profit-maximization is limited by legality as one of the ‘rules of the game,’ according to Milton Friedman.39 The law-that-is may and may not coincide with substantive morality. It is legally positive law that objectively binds the players, whereas extra-legal prescriptions regulate the more general response to coexistence, to independence as opposed to interdependency. A handsoff strategy apparently lessens conflict. Similarly, the laissez-faire capitalism that informs Friedman’s framework relies on the separation thesis for business and government. This is diametrically opposed to the advocacy of ‘socially desirable goals’ for investors, firms and corporations, such as the elimination of pollution.40 Consequently, the Global Compact’s Principles 7-9 for the environment are instances of the kind of intolerable Big Government cum totalitarian thinking that goes with socialism, again according to Friedman. Furthermore, Principle 3 would receive a critical response by virtue of being unfair on businesses because their freedom of association is disrespected if collective bargaining is made mandatory. In and of itself, Principle 3 constitutes a contradiction in terms, ‘Businesses should uphold the freedom of association and the effective recognition of the right to collective bargaining’. It is not possible to mix our private business enterprise with socialist measures for employees, thereby also interfering with our control. This is the limit. In turn, this is also why the laissez-faire philosophy treats the distinction between external regulation and free market competition as a dichotomy. Apart from the market freedoms, the type of traditional rights that correspond to negative duties (of non-interference), that is, civil and political human rights complement rather than challenge the values that narrowly revolve around subjectivist and/or relativist perceptions and preferences. Employees may arguably be said to have more interests in freedom than employers, but since the implied qualifications invoke the concept of freedom to, the narrow response is dismissive. In particular, the laissez-faire version would view any compromise, i.e., any integration of positive elements as an attempt to politicize business, as if public policy formed part of corporate policy.

39 40

Friedman (2002), p. 27. Friedman (1970).

182

A. Matwijkiw and B. Matwijkiw

Contrary to this approach, broad stakeholder models may defend the right to unionization and collective bargaining on utilitarian premises, meaning that the gap between the haves and have-nots should be closed in favor of the good of the many. The narrow counterpart subsumes this response under inappropriate methods for redistributive ‘justice’. If sufficiently bold, the broad outlook calls for a revolution and an unapologetic reallocation policy to end victimization without further delay. From a narrow perspective, such tactics, at best, constitute arbitrary ‘corrections;’ at worst, violations of the Principle of Individual Freedom under Individual Responsibility—through governmental provisions for wealth-sharing. Finally, narrow idea(l)s that merge with libertarianism (cf. laissez-faire capitalism) entail a strong component of indignation if a rationale about economic and social ‘rights’ is added. In the next Sub-Section, some conceptual aspects that warrant clarification are outlined.

2.1

More About Limits: Rights

In order to explain a libertarian move against social and economic rights, it is not enough to refer to the preclusion of substantive morality by analogy to politics (cf. separation of law and morality thesis), although this is undoubtedly the first general jurisprudence or philosophy step toward credentials-checking of rights. Narrowly, it takes more than the premise from legal realism and legal positivism; that only conventional law is real law. It takes economic realism. This additional premise is woven into the constellation of the logical correlativity thesis and H.L.A. Hart’s Will Theory of Rights that pushes the conceptualization in the direction of discretionary powers or, in market terms, the ‘power to choose’.41 Since it is impossible to provide guarantees for positive duties, economic and social rights cannot result from the duties. They are not realistically claimable. Therefore, economic and social rights have to be dismissed. Narrowly, that particular individual stands alone. Furthermore, solidarity is confined to ‘one’s own circles’ in accordance with voluntarism unless those in need qualify as extensions of Self. In this case, the core Principle of Individual Freedom under Individual Responsibility continues to apply (as a duty to provide)—in accordance with (here borrowing Andrea Sangiovanni’s terminology) financial self-sufficiency requirements.42 Private donation (as opposed to mandatory taxation or other forms of forced ‘solidarity’) is the ideal form of other-regarding assistance.

41 The correlativity thesis alone says that: In order for A to have a claim-right, there must—as a logically necessary condition—exist at least one other person or party, B, who has a duty toward A. For the doctrinal complexities involving the separation thesis, the logical correlativity theses, and the interest-incompatibility thesis, see Matwijkiw (2019). 42 Sangiovanni (2013), p. 238.

A Look Behind the Legal Scene: Philosophical Stakeholder Responses. . .

183

Generally, the combination of no coercion and incentives (tax cuts) will predictably generate mutual benefits for business and society (trickle-down economics). In terms of values and principles like inclusion, equality and non-discrimination, circleconcentricity still has the effect of favoring the in-group and of reproducing the status quo. Narrowly, the idea of ‘our interest’ is not pre-committed to the good of the nation-state as such (cf. ‘our national interest’).43 With its emphasis on property and entrepreneurship, the narrow framework resorts to law as an instrument to protect what is at stake for owners and investors, the privileged elite. Employees and consumers also count as stakeholders, but the distinction between the fortunate and the vulnerable cannot accommodate the Other whose market participation is precluded. Outsiders, inter alia, the unemployed and the poor may try to ‘vote with their feet,’ meaning that the capitalist system is emancipatory—if it is not obstructed. In the words of Friedman, ‘an impersonal market separates economic activities from political views and protects men from being discriminated against in their economic activities for reasons that are irrelevant to their productivity’.44 A self-regulating marketplace is about fairness because ‘the groups in our society that have the most at stake in capitalism are those minority groups which can most easily become the object of the distrust and enmity of the majority’.45 For this reason alone, the appeal of utilitarianism owes to a misunderstanding. To end what Brian Caplan calls ‘global apartheid,’ open borders and freedom of mobility would generate greater equality than democracy. Unlike broad stakeholder outlooks that often embrace representative governance based on participatory politics as a standard solution to important issues, the skepticism of narrow theorists is inescapable. If the marketplace excels (cf. respect for and protection of minorities), then this should not be made to yield to an arrangement that cannot compete in terms of its performance. Nevertheless, narrow stakeholder theorists believe that capitalism (economic freedom) eventually evolves into a liberal society (political freedom). However, the limit to liberalism is clear. Irrespective of the wealth of that particular nation, the category of real rights is limited to rights stricto sensu, i.e., claim-rights. The thesis of analytically prior duties that determine and establish (claim-)rights (cf. logical correlativity thesis) is about the order of the relationship, whereas the Ought Implies Can Principle that flows from economic realism translates or, stronger still, reduces the category of economic/social human ‘rights’ to so-called manifesto claims because, once again, the availability of resources required for fulfillment may change. It is the reality of scarcity per se, and not the fluctuations between relative abundance and absolute scarcity in place ‘P’ at time ‘T’, that matters. Hart’s concept of the rightholder as a ‘small-scale sovereign’ empowers the individual as a dutycontroller, but it is not realistically possible to transcend the risk of incapacitation and, with this, dethronement (of the sovereign). Since there can be no short supply of

‘Our national interest’ coincides with Westphalian state-centricity. This is the traditional premise. Friedman (2002), p. 21. 45 Ibid. 43 44

184

A. Matwijkiw and B. Matwijkiw

non-interference, the demand-supply reasoning remains intact in the conditionality for civil/political human rights. That is why only this category passes the test for claim-rights. Economic/social manifesto claims, on the other hand, can never be elevated to the normative sphere where (the absence of) gratitude is replaced by (rightful) indignation if assistance is not forthcoming. It goes without saying that if references to some fundamental rights are rendered invalid by certain stakeholder frameworks, policymakers have to be aware.

3 Connecting the Dots: The Copenhagen Criteria and EU Rights Instruments Concerning the Copenhagen criteria, a narrow outlook has the effect of reprioritizing the order of the conditions so as to put a functioning market economy first. There can be no ‘stability of institutions guaranteeing democracy, the rule of law, human rights and respect for and protection of minorities’ without this. For the same reason, the most fundamental rights are derived from capitalism. Despite the lack of appeal for left-wing social activists, issues like ‘social dumping’ are best resolved by the free marketplace. The emerging trend to (re)call values and principles of solidarity and rule of law together to direct foreign affairs and cooperation should also be dismissed to the extent that it stresses socioeconomic ‘justice,’ as illustrated by EU President von der Leyen’s firm belief ‘that the European Union has a special responsibility in assisting its partners in the region’.46 Such an endeavor and effort is, at best, a lofty vision; and, at worst, a reflection of policymakers’ ignorance about the nature and scope of fundamental rights. The body of EU law (the acquis) should be amended to reflect this fact, just as the dual call trend as a ‘new dimension’ of security should be dismissed. It is both too naïve and too dangerous—for it comes with a risk of undermining the very core of the central concept of rights, thereby degrading human beings when they should be able to stand erect and demand what is due to them. Guaranteeing a right for A means, as a minimum, that the choice to waive or leave B’s duty intact is at the will of A. Without this power, rights misfire. Not all liberals are realists or, for that matter, on track to libertarian positions. These link members’ assistance to non-members with propaganda for a cause that is (deceptively) made to matter more than the negative versus positive demarcation which, if challenged critically, also splits policymakers into defenders of liberal democracy (with capitalism) and economic democracy (with socialism). Behind the legal scene, that is the tension. Nevertheless, the narrow approach does not have much, if any, pull from the viewpoint of international law. As demonstrated by advocates of Stakeholder Jurisprudence, the existence of international economic/social human rights norms is not

46

European Commission (6 May 2020a), Statement by the President Von der Leyen (following the EU-Western Balkans Zagreb Summit.

A Look Behind the Legal Scene: Philosophical Stakeholder Responses. . .

185

contingent on the availability of resources or, for that matter, on controlling choices of duties (cf. discretionary powers). Conventional treaty law at the global level confirms this with a notion of programmatic duties, whereas instruments like the EU Social Charter takes the additional and progressive step of connecting social/ economic rights and vulnerability, thereby using the implied human insecurity as an argument for duty-reassignment from Self(-reliance) to public assistance.47 In the light of this, broad theory advances the importance of interests as measured by their basicness as an integral part of the respect criterion whereby it is made to hold that: if and only if the object of a right is for the sake of the intended recipient as an end, is it correct or appropriate in the first instance to postulate that rightsrecognition is meaningful and, as a consequence of this, set in place the measures for rights-protection. On the premises of the modern Interest Theory, a mixture of negative and positive duties accompanies all human rights. If the cut-off point for solidarity is positive duties, as suggested by the narrow stakeholder approach, then every type of external action is muted beforehand. This is particularly true because civil/political human rights may be more costly (in terms of protection) than their counterparts.48 Furthermore, the narrow belief that a choice between freedom and welfare must be made because the relevant values are (presumed to be) mutually exclusive (cf. interest-incompatibility thesis) is a dogmatic premise. It reflects ideology; and not logic. Admittedly, the principle of interdependency of human rights is broad, but the more compelling argument goes even deeper. Metatheoretically, Stakeholder Jurisprudence homes in on needs that cannot be conflated with wants, as asserted in the narrow outlook.49 By advancing paternalism as the antithesis to liberalism, the subjectivist and relativist harm definitions that flow from central assumptions like ‘the marketplace makes no judgment’ may block reciprocal stakes that are enabling conditions for human activities, including market activities unless, of course, the credentials-checking for rights is adjusted to reflect the benefit for the rightholder. In the case of fundamental rights, an incapacity to waive selfregarding immunities is analytically required for the purpose, however contrary to the narrow notion of choice. According to this, the individual may (ab)use his/her autonomy to cancel the very value that is ranked highest: freedom. From the European perspective, Member States must ensure respect for fundamental rights and EU citizens’ rights, as guaranteed by the acquis and by the Fundamental Rights Charter. Here assuming the role of the Devil’s Advocate, the

47

The ICESCR makes it hold that: Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures. See UN General Assembly (16 December 1966, entered into force 3 January 1976), International Covenant on Economic, Social and Cultural Rights GA Res. 2200A (XXI), 21 UNGAOR Supp. (No. 16), UN Doc.A/6316, 993 UNTS 3 [(ICESCR], Art. 2; European Council (1996), Social Charter Revised, arts. 13, 23, and 31. 48 Matwijkiw and Matwijkiw (2014), p. 960. 49 Friedman (2002), p. 3.

186

A. Matwijkiw and B. Matwijkiw

various rights instruments—the European Convention for the Protection of Human Rights and Fundamental Freedoms, the Charter of Fundamental Rights of the European Union as well as the European Social Charter—illustrate the Wrong Kind of Development, according to the narrow stakeholder approach. Why? Because the various instruments raise the bar for those rights that contemporary trends in legal doctrine attack as being non-fundamental; and as being non-fundamental qua being ‘affirmative’—which is another term for ‘positive’.50 One example is Legal Process Theory that aspires to halt affirmative human rights litigation with a reference to the fact that the relevant international standards ‘require a commitment of resources’ and therefore have to be disqualified as rights that correspond to jus cogens norms, however basic for humanity in terms of survival and subsistence.51 Such a narrow response is a revisionist type of natural law reasoning, with jus cogens norms operating as higher and ethical norms, i.e., ‘intrinsically superior norms’.52 Talk about economic/social human rights as candidates fall under ‘the trend in bold claims’.53 The point is that both law and ethics allegedly render them inappropriate. Stakeholder Jurisprudence launches a broad anti-dote to reactionary legal doctrines like the Legal Process Theory. By virtue of showing that they are taking too much for granted, Stakeholder Jurisprudence corrects one of the shortcomings that consists in the lack of developed frameworks for stakeholder discourse, with explicit and clarified narrow and broad premises and implications.54 One of the advantages of this philosophical work consists in the rescue of the aspect or dimension of security that is mediated by economic and social rights. Broadly, it holds that while effective enforcement in terms of rights-protection is a standard for taking rights seriously, it is not a credentials-checking component. The invalidation of the narrow triple thesis ‘argument’ (that erroneously derives no-rights from the logical correlativity thesis, the separation thesis, and the interestincompatibility thesis) suffices to demonstrate this. By extension, broad theorists can accommodate, inter alia, concerned members of civil society who are in favor of measures to deliver more effective economic/social rights, the overarching goal of the European Pillar of Social Rights. It is probably too idealistic to think that the existing jurisprudence on affirmative or positive rights will not be met with further opposition, if perhaps in a more subtle way. Theorists may disagree that ‘the Court exceeds its interpretative power by developing a very broad jurisprudence on positive obligations’ and still require both predictability and acceptance of the Court’s jurisprudence by the national courts. For example, Cordula Dröge states that: ‘[o]nly if positive obligations do not exceed the possibilities and resources of states will they be a last normative category accepted

50 Labor rights, rights to education and to a health environment, migrant worker protections are examples. See O’Connell (2012), pp. 80, 92, 97. 51 Ibid., p. 97. 52 Ibid., p. 86 53 Ibid., pp. 80, 92. 54 Matwijkiw and Matwijkiw (2014).

A Look Behind the Legal Scene: Philosophical Stakeholder Responses. . .

187

by all states’.55 Thus, the narrow versus broad debate and dispute may be continued both on and behind the legal scene. However, if guided by broad stakeholder ideas and strategies, the conversation about scarcity and (state) capacity that Dröge has in mind will focus on the meta-responsibility to hook duty-bearers into place in circumstances where fulfilment is in fact an issue. It will not challenge norms. The broad rationale for this approach is the dual solidarity-and-security constellation. Like Louis Henkin, advocates of Stakeholder Jurisprudence work with a social contract at both the national and international level that calls for stakeholder responsiveness in accordance with basic human needs regardless of borders.56 The constellation of state-centricity, capitalism and group-egoism is so impermissible that international mandatory taxation may be the only effective strategy to balance the stakes. Structurally, this reactivates the ideological pressure points. Respect for basic human needs may accentuate employment and social reforms based on the principles of the European Pillar of Social Rights. Here it is noteworthy that broad advocates like Robert R. Freeman maintains that ‘stakeholder theory is decidedly not a form of socialism’ but instead it is predicated on the premise of ‘a system of voluntary exchange’.57 If his approach is promoted in international relations, the Westphalian model may be (re)activated. According to M. Cherif Bassiouni, this has the effect of making the state ‘essentially self-controlling’—an analogy to the market forces—because there is no accountability to ‘society’s commonly-shared values’.58 With expediency as the only ‘rule of law,’ a (legal) opt-out or a cancellation of a (moral) limitation is enough to secure exceptionalism, in practice, impunity. Obviously, this arrangement contrasts more with revisionist natural law theory than legal positivism that tends to regard international norms as lesser than national norms for reasons having to do with effectiveness of enforcement. The ‘usual primacy of the written law’ that comes with legal positivism may be counteracted, though, by modern naturalists’ (broad) preparedness to deformalize justice in order to align doctrine with progressive global cum UN standards like ‘just, fair and equitable laws’ (cf. substantive aspect of law) in addition to procedural fairness.59 Admittedly, the philosophical complexities make it necessary to avoid automatic associations between broad frameworks and EU values. Narrowly, the separation of the economic and political systems may manifest itself as an instance of the Might Makes Right philosophy. Nevertheless, the rule of law implications should not be simplified. On the premises of political absolutism, the uncommanded commander ‘may be a benevolent arbiter who (typically) is motivated by considerations having to do with equity; just as there may be measures against arbitrariness in the administration of the law’.60 Subjects have no duty to

55

Dröge (2003), p. 380. Henkin et al. (1999), p. 285. 57 Freeman et al. (2010), p. 230. 58 Bassiouni (2006), p. 544. 59 Bohlander (2009), p. 13; UN General Assembly (2012), para. 2. 60 Matwijkiw and Matwijkiw (2015), p. 70. 56

188

A. Matwijkiw and B. Matwijkiw

obey a corrupt or incompetent leader. Hence, the right to rule is limited by an ability to secure the objects of certain rights (e.g., life and property) and to enforce these in the event of violations. To declare supremacy of law, equality before the law, and accountability to the law are steps that only broad types of theory take. The grey zone will be occupied by standards like procedural and legal transparency, and legal certainty—that is bound to reflect the extent of the non-separation of powers. Together with participation in decision-making, guarantees of all human rights fall out of the (rule of law) equation. Interest-incompatibility may coincide with an illiberal welfare state arrangement (cf. welfare at the cost of freedom) although it makes no sense, of course, to talk about a prior trade-off that involved democratic stakes.61 Setting aside the pseudo-element of the implied egalitarianism (cf. economic/social ‘rights’), there is no paradox in exchanging freedom from want for oppression of most civil/political rights if leaders are able to pull this off in the marketplace of ideas. Narrowly, such an arrangement is the exact opposite of the minimal state ideal which does not tolerate justice impositions like ‘fair working conditions’ and ‘social protection and inclusion,’ listed respectively (2) and (3) in the below EU rule of law conditionality: • Equal opportunities and access to the labour market (1) • Fair working conditions (2) • Social protection and inclusion (3) The EU is on track to socialism. As for (1), the narrow stakeholder approach defends ‘equal opportunities’ if these are synonymous with (protection of) free market competition and (market freedoms cum fundamental rights to) individual negotiation and bargaining on the basis of respect for the rational pursuit of one’s own gain (cf. self-interest). The zero-sum outcome that can be derived from the Privatize-Deregulate-Decentralize program is a threat to EU security, according to the broad framework. Metatheoretically, if the structural designs for the free market are secured, some basic provisions for self-restraint will be in place, but as long as the Other has signed off on particular practices (with informed consent), stigma-inflicting verdicts like ‘exploitation of vulnerable stakeholders’ are inappropriate. Furthermore, corruption is not always about deception on narrow premises, about reducing the Other to a means merely. The culture-coloring of perceptions may exempt bribes from the list of preferential wrongdoings.62 The point is that the transnational crime of corruption may degenerate to a notion for self-appointed do-gooders who use ‘bad apples’ as a strategy for systematic oppression of any entrepreneurial spirit. In the worst-case 61 According to EU law, i.e., the European Council (1950), European Convention on Human Rights, Art. 8, the enjoyment of the right to privacy may be restricted by ‘the economic well-being of the country,’ thereby allowing a trade-off. 62 This has the effect of dismissing the last item of the UN Global Compact’s Principle 10 (cf. ‘Businesses should work against corruption in all its forms, including extortion and bribery’). For the UN 2017 admission that traditionally corruption has been viewed ‘as the price of doing business’ and not as a crime, see Fedotov (2017).

A Look Behind the Legal Scene: Philosophical Stakeholder Responses. . .

189

scenario, incentives may be slimmed to the extent where people cease to prefer the marketplace to a passive role as a welfare state recipient. Anti-corruption policies should include awareness of one-sided propaganda, especially since the EU is concerned about forces that ‘diminish pluralism’.63 If policymakers decided to honor Friedman’s philosophy that ‘the market makes no judgment,’ corruption would be(come) dramatically lessened as a consequence of the anti-censorship policy that follows, just as the stakeholder isolation that is an aspect of the narrow separation thesis (of business and politics/ethics) would contribute to the same outcome. Big Government means more opportunities to link public resources with organized crime.

3.1

The Sore Spot: Democracy

The fact that restrictive measures in a number of Member States have already diminished religious pluralism (cf. burqa ban in EU countries) is almost bound to give rise to an accusation of hypocrisy, albeit the broad stakeholder framework can be stretched to accommodate utilitarianism.64 The Copenhagen criteria partially clash with this outlook by virtue of translating the rule of law into a liberal democracy which, by definition, entails respect for and protection of minorities. The narrow response deems this uncontroversial; but also has to be prepared to dismiss the margin of appreciation that the European Court of Human Rights (ECtHR) applied to uphold the ban. This doctrine gives states latitude in balancing individual rights against state interests, in the cases at hand, the prioritization of our in-group form of coexistence, interaction, and communication at their expense.65 Then again, liberal democracy’s rule of law concept mixes respect for and protection of minorities with individual rights (in general) and majority rule—which opens the door to majority tyranny. On the premises of Stakeholder Jurisprudence, any tension has to be resolved in favor of the principles that belong under the Ethics Pillar. These include the Fair Opportunity Principle for Human Stakeholders whereby ‘Stakeholders should not be discriminated against on the basis of characteristics which they cannot control through their own subjectivist and/or relativist choices (meaning that they depend on non-preferential factors to be able to acquire or un-acquire the relevant characteristics).—They have a right to inclusion on the basis of humanity;’

63

European Commission (17 July 2019c), Strengthening the rule of law within the Union: A blueprint for action (Communication), p. 2; European Commission (19 June 2019a), Further strengthening the Rule of Law within the Union: State of play and possible next steps (Communication), p. 1; European Commission (30 September 2020b), Rule of Law: First Annual Report on the Rule of Law situation across the European Union, p. 2. 64 Freeman (1984), p. 102. 65 European Court of Human Rights (Grand Chamber), Judgment (1 July 2014), 43835/11, S.A. S. v. France. For an account of the contradictory judgments of the European Court of Human Rights and the United Nations Human Rights Committee (UNHRC), see Oriolo (2021).

190

A. Matwijkiw and B. Matwijkiw

the principle that ‘Stakeholders should not be subjected to serious harminfliction’.—They have a right to dignity; the principle that ‘Stakeholders should be treated as ends in themselves, and not merely as means’.—They have a right to respect; the principle that ‘Stakeholders should be given consideration on the basis of important needs and/or interests’.—They have a right to equality; and the Principle of Human Stakeholder Participation, ‘Stakeholders whose subsistence/ welfare and/or freedom is substantially affected by the outcomes of collective decisions, strategies or arrangements should participate directly or indirectly in the relevant decisions, strategies or arrangements.—They have a right to a rule of law as opposed to a rule of might’.66 The Ethics Pillar is also the anti-dote to the ‘claims of nationalistic cultural rights’ Bassiouni connects with Western reluctance to show solidarity with ‘the hardship suffered by refugees fleeing wars, repressive regimes, economic exploitation, and poverty,’ thereby lamenting the humanitarian protection conditions in the most economically advanced countries.67 Since the narrow approach revolves around private property and other market freedoms as fundamental rights, it has to be analyzed on those same premises. If so, the response to democracy is value neutral. Unlike its broad counterpart, it does not have a bottom line in the form of a participatory right if stakeholder welfare is substantially affected.68 That said, the absence of a distinction between ‘comprehensive moral doctrine and stakeholder theory’ suggests that theorists are at risk of ‘misunderstandings and abuses of stakeholder theory’.69 From the European security perspective, the rule of law and, as an aspect of this, solidarity constitute reciprocal stakes. But, while a comparative narrow-broad analysis of EU policy admittedly reveals a bias for the broad approach, the concession to socioeconomic justice and eastward enlargement is a matter of conformity with, on the one hand, the Social Agenda and Europe 2020 and, on the other hand, the balancing of ‘market principles (market access) and principles of solidarity (social protection objectives in EU law)’ by the European Court of Justice (ECJ).70 The resulting ‘solidarity jurisprudence’ is not an idealistic (re)distributive strategy; that is the point. Broad (Stakeholder Jurisprudence) thinkers who disregard narrow comments about misunderstandings are likely to identify the Main Issue pertaining to EU integration and multi-stakeholder cooperation as a version of Good Global Citizen ethics. Normatively and prescriptively (cf. substantive morality), proposals for the Way Forward are primarily of a narrow type, though. Sangiovanni states that a distinction between national solidarity and Member State solidarity is required. Furthermore, the rationale behind financial self-sufficiency requirements (as found in Directive 2004/38EC of 24 April 2004) is to prevent phenomena like ‘benefit

66

Matwijkiw and Matwijkiw (2018b), pp. 133 n9, 135 n18. Bassiouni (2012), p. 38. For the discussion of the migrant as an ‘unreasonable burden’ under Directive 2004/38/EC, para. 10, see Sangiovanni (2013), p. 238. 68 Matwijkiw and Matwijkiw (2019), p. 15. 69 Freeman et al. (2010), pp. 226, 230. 70 Sangiovanni (2013), p. 214. 67

A Look Behind the Legal Scene: Philosophical Stakeholder Responses. . .

191

tourism’ so that Member States can limit the fiscal burden of inactive migrants and, more generally, the welfare magnet.71 In Sangiovanni’s opinion, a balance between market access and solidarity principles can be reached on the basis of developing EU legislation and evolving case law, meaning that the foundation is still at the embryonic stage.72 Sangiovanni argues against all internationalist versions of coercionbased distributive justice, although a model of European solidarity (cf. Member State solidarity) is a plausibility.73 Like Miguel Poiares Maduro, he recommends reflection on solidarity and the criteria of distributive justice that should guide European reform, especially since there can be no ‘true social contract’ for the European polity without such a debate.74 To counteract a crisis of social legitimacy, he attempts to infuse the debate with interdisciplinary insights from political and ethical philosophy. Sangiovanni uses the analysis as a launching pad for the statement that ‘it would be inappropriate to . . . apply the same principles of social solidarity to the EU level as . . . the state level’.75 If so, increased internalization will proportionally weaken the human security dimension that supposedly emerges from (re)calling the rule of law and solidarity together to direct foreign affairs and cooperation. The two authors are not attempting to question Sangiovanni’s choice of Robert Nozick, John Rawls, Ronald Dworkin, Charles R. Beitz, and similar thinkers who are firmly anchored in liberalism, but they are concerned about the fit with stakeholder frameworks to pave the path for critical discourse among policymakers. In particular, general rights theory is an area that should be explored in more detail simply because the philosophical outlooks of particular thinkers leave their clear footprints in the conceptualization of fundamental human rights. Amidst new -isms like multistakeholderism, it remains true that a narrow approach does not equate exclusion with an ethical deficit. Obviously, this translates into a refusal of those pro-democracy values that coincide with the human security element.

4 Some Final Remarks The broad versus narrow debate and dispute is not just about the definition of stakeholders, with the implications this has for the priority of stakes and the underlying notion of the consideration that is owed. It is very much about rights. According to Friedman, rights cannot be conflated with the state of affairs in a socialist society, which ‘cannot also be democratic’ (cf. incompatibility).76 The narrow conceptualization is tied to the role of government. In the so-called minimal

71

Ibid., pp. 234, 239. Ibid., pp. 227, 232. 73 Sangiovanni (2012). 74 Sangiovanni (2013), p. 215. 75 Ibid., p. 229. 76 Friedman (2002), p. 8. 72

192

A. Matwijkiw and B. Matwijkiw

state, leaders and high-level officials are responsible for the following security and rule of law functions: ‘to protect our freedom both from the enemies outside our gates and from our fellow citizens: to preserve law and order, to enforce private contracts, to foster competitive markets’.77 Concerning fundamental rights, therefore, the narrow outlook is in agreement with the international criminal law position that Bassiouni espouses, viz. basic rights to ‘life, liberty, physical integrity and security’ construed as traditional and liberal stakes in survival (through non-interference) and the avoidance of serious harm that results from freedomdeprivation in a political tyranny.78 It follows that phenomena like grand corruption cannot be accommodated. Broad rule of law accusations of state-sanctioned terrorism would be dismissed (not because of the structural weaknesses that coincide with the class system—but) as a consequence of legal facts: that the typology of crimes has not integrated violations of economic/social human rights at the international level on account of the historical coherence thesis.79 Behind the legal scene, the triple thesis ‘argument’ against cancelling the business-as-usual response (cf. historical coherence thesis) continues in any narrow approach to rights that does not accept the distinction between rights-recognition and rights-protection. International criminal law is probably more susceptible to conservative views than international human rights law. It is nevertheless paradoxical that it is realist metaethics that prompts the narrow dismissal of the type of fundamental rights that the international body of norms deposits in isolation from ‘behind the legal scene’ premises. The point is: it is credentials-checking of rights that causes rightscancellations on behalf of the law. However, cutting across the narrow/broad values divide, humanity-centric interests in both civil/political and economic/social human rights disallow ideologicallyselective (in)tolerance of violations that affect public cum shared stakes, however challenging in terms of the resources they may require. E.g., stakes in the environment are rendered legally relevant by considerations having to do with the serious and harmful consequences. Crimes like ecocide affect fundamental human rights too and, ipso facto, Stakeholder Jurisprudence defends the ICC Office of the Prosecutor’s 2016 Policy Paper on Case Selection and Prioritisation whereby a no-separation of environmental and social and economic damage is a criterion for Rome Statute crimes.80 At the global level, EU cooperation with this integrative approach (which also validates broad Global Compact Principles 7-9) serves to reinforce the Green Agenda for the Western Balkans.81

77

Ibid., p. 2. Matwijkiw and Matwijkiw (2014), p. 959. 79 Wattad (2009), p. 273. Note that Wattad explains that the Rome Statute’s core crimes ‘are the explicit manifestations of the Nuremberg experience, i.e., the Charter of the International Military Tribunal of 1945’. 80 Office of the Prosecutor of the ICC, Policy Paper on Case Selection and Prioritisation (15 September 2016), para. 41. 81 Supra note 14. 78

A Look Behind the Legal Scene: Philosophical Stakeholder Responses. . .

193

Socioeconomic justice is the area that makes the most sense of solidarity as a value and principle. Nevertheless, none of the original stakeholder outlooks from business management or CSR are compatible with international high-level cooperation that aims to, as it were, equalize on the basis of preexisting inequities interpreted as structurally determined outcomes. In the event that solidarity and rule of law are (re)called together in a way that ends the mutual benefit effect, the original stakeholder frameworks will agree to discontinue further negotiations. Human security does not change that game premise. Any idea to ‘tackle the social gap between Member States and Western Balkans’ must and, mutatis mutandis, should conform to Sangiovanni’s distinction between national solidarity and Member State solidarity.82 There is no support for EU as a federal welfare polity. Unless the broad framework is stretched beyond the free market, internationalist aspirations and strategies have to be separated from measures to remedy imbalance from a poverty-inflicting grand strategy irrespective of how disadvantaged the relevant stakeholders are. If EU’s philosophy of ‘market plurality’ is interpreted as a strategy of inclusion that entails regulation rather than market freedom—which is the case— the narrow protests will be proportional to the interventions.83 The protection of fundamental human rights is a key area of attention in relation to the Western Balkans’ accession to the EU. The more socialized EU’s magnet is, so one argument could be, the more effective the bargaining chip in the geopolitical competition with superpowers like Russia and China will be. Then again, the attraction may be weakened by the fact that the EU is on track to a reversal of the narrow transition model. It appears that it is not the market that paves the path for the political system, but instead it is the other way around: the European perspective of democracy, rule of law and fundamental human rights are the ‘engines of economic integration’.84 In Marxist terms, the superstructure is the test area for credibility and trust; a position U.S. President Biden also took in his response to assistance to countries that affect homeland security through transnational organized crime and corruption.85 This type of risk pooling is seen as an investment in their problemsolving capacities in the era of globalization. If transferred to the EU and WB6, Montenegro, Serbia, and the other remaining countries in the region have to deliver on political freedom first, on minority rights, on freedom of expression, on press freedom—and then come to enjoy the economic reward.86 Critics believe that this significantly subtracts from ‘our national interest’ interpreted narrowly in terms of the political leaders’ own fear of EU as a post-sovereign polity. What may reduce the 82

European Commission (2021), The European Pillar of Social Rights Action Plan, p. 39. European Commission (30 September 2020b), Rule of Law: First Annual Report on the Rule of Law situation across the European Union, p. 17. 84 Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions (5 February 2020), Enhancing the Accession Process – A credible EU perspective for the Western Balkans (Communication), p. 1. 85 Wilkinson (2021). 86 European Commission (6 October 2020c), Montenegro 2020 Report, pp. 4, 6, 42, 98; European Commission (6 October 2020d), Serbia 2020 Report, pp. 4–5, 83. 83

194

A. Matwijkiw and B. Matwijkiw

reward further is the fact that the EU is a close ally of the U.S. which stands to lose out against Russia and China’s markets.87 Former satellite states like Poland and Hungary play both poles by narrowly harvesting the realpolitik stake in their selfdetermination and at the same time ignoring domestic rule of law deficits that fly in the face of EU’s standards and values. Observers and commentators talk about a post-Cold War democracy crisis, about no oversight and no ‘brakes’ for Member States, including countries that practice autocratic legalism, that is, populism.88 If a common foreign policy is an illusion, the EU cannot be seen as a geopolitical superpower, which is a claim from the Cato Institute.89 The R2P principle has been forgotten for the same reason.90 Other experts may point to the excessive ‘moral internationalism’ involved in what is the key to genuine solidarity.91 Since narrow outlooks dismiss interdisciplinary approaches, just as they are not prescriptively geared toward interdependence (cf. separation thesis), EU policymakers cannot proceed as if stakeholder terminology, discourse, and application are self-explanatory. The interpretation can pull in different directions, but the different directions can also merge in a fashion that creates unintended consequences. The possibility of a purely pragmatic version of the original broad framework illustrates this.92 This is also why Stakeholder Jurisprudence first and foremost provides critical tools for analysis and assessment. If policymakers take the effort to correct shortcomings seriously, they should secure stakeholder framework explications that do not contain any possible ‘value traps’ even if this means rethinking the influences from the original business management and CSR outlooks. To treat structural weaknesses in the area of the fundamentals as reciprocal stakes, the EU has to be aware of the risk of essentially ‘selling out’ in a 7th enlargement involving one or more WB6 countries that are listed as a ‘hybrid regime’ because the geopolitical factor is pushed to the front and centre.93 If values are about identity, authenticity and integrity, the EU cannot afford to play the game of power politics. Acknowledgements The two authors warmly thank Stefano Busillo from the University of Salerno Legal Observatory’s ‘EU Western Balkans Cooperation on Justice and Home Affairs’ Jean Monnet Module. Stefano’s excellent editorial assistance and research input were greatly appreciated. The usual disclaimer applies.

87

DK4 (2021b). DK4 (2021a). For the ‘limited effects’ of the infringement procedures initiated by the Commission and the European Parliament against Poland and Hungary in response to a ‘clear risk of a serious breach by a Member State of the values referred to in Article 2’ (Art. 7 of the TEU), which are ‘values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities’ (Art. 2 of the TEU), see Michelot (6 May 2019). 89 DK4 (2021b). 90 Ibid. 91 Orford (2013). 92 Matwijkiw and Matwijkiw (2014), pp. 128–129, 133–134. 93 Csaky (2020). 88

A Look Behind the Legal Scene: Philosophical Stakeholder Responses. . .

195

References Bassiouni MC (2006) The perennial conflict between international criminal justice and Realpolitik. Georgia State Univ Law Rev 22(3):541–560 Bassiouni MC (2012) The future of human rights in the age of globalization. Denver J Int Law Policy 40(1):21–43 Bohlander B (2009) Principles of German criminal law. Hart Publishing, Portland Borrell J (2021) Western Balkans: we need to change the dynamic. EEASl. https://eeas.europa.eu/ headquarters/headquartershomepage/98838/western-balkans-we-need-change-dynamic_en Csaky Z (2020) Dropping the democratic facade in Europe and Eurasia. Freedom House. https:// freedomhouse.org/report/nationstransit/2020/dropping-democratic-facade Dell G (2021) UNGAA 2021 Ignores the Grand Corruption Elephant but Creates a Pathway to Improve the International Framework. Transparency International. https://www.transparency. org/en/blog/ungass-2021-ignores-grand-corruption-elephant-but-creates-pathwayimprovementinternational-framework# Dröge C (2003) Cordula Dröge, Positive Verpflichtungen der Staaten in der Europäischen Menchenrechtskonvention. In: Beiträge zum ausländischen öffentlichen Recht und Völkerrecht, Band 159, pp 379–392 Dzankic J (2017) State-sponsored populism and the rise of populist governance: the case of Montenegro. J Balkan Near-Eastern Stud 19(4):1–16 Ferguson YH, Mansbach RW (2004) Remapping global politics: history’s revenge and future shock. Cambridge University Press, Cambridge Freeman RE (1984, 2010 reissue) strategic management: a stakeholder approach. Cambridge University Press, New York Freeman RE et al (2010) Stakeholder theory: the state of the art. Cambridge University Press, New York Friedman M (1970) The social responsibility of business is to increase its profits. The New York Times Magazine (13 September) Friedman M (2002) Capitalism and freedom, 40th edn. Chicago University Press, Chicago Henkin L et al (1999) Human rights. Foundation Press, New York Hillion C (2014) EU enlargement: a legal approach. Bloomsbury Lavrič M, Bieber F (2020) Shifts in support for authoritarianism and democracy in the Western Balkans. Probl Post-Communism 68(1):17–26 Martill B, Sus M (2021) When politics trumps strategy: UK-EU security collaboration after Brexit. Int Polit Sci Rev (11 May) Marović J (2021) China’s growing investments in Montenegro – will the new government break their secrecy?. Civil Society Forum of the Western Balkans: The Berlin Process Information and Resource Centre. https://berlinprocess.info/op-eds/chinas-growing-investments-inmontenegrowill-the-new-government-break-their-secrecy/ Matwijkiw A (2019) The dangers of the obvious but often disregarded details in the international criminal law demarcation debate: norm-integration and the triple-thesis ‘Argument’. Int Crim Law Rev 20(5):759–783 Matwijkiw A, Matwijkiw B (2010) Stakeholder theory and justice issues. The leap from business management to contemporary international law. Int Crim Law Rev 10(2):143–180 Matwijkiw A, Matwijkiw B (2012) Stakeholder Jurisprudence: the new way in human rights. In: Proceedings of the 25 IVR World Congress of Philosophy of Law and Social Philosophy, pp 1–20. http://publikationen.ub.uni-frankfurt.de/frontdoor/index/index/year/2013/docId/24872 Matwijkiw A, Matwijkiw B (2014) Stakeholder applications: advantages or disadvantages for international criminal law? Int Crim Law Rev 14(5):944–968

196

A. Matwijkiw and B. Matwijkiw

Matwijkiw A, Matwijkiw B (2015) February 14, 2017: the three-year anniversary. Bahrain and the precarious diplomacy of responsibility-ascriptions. Glob Commun Yearb Int Law J 2014:63– 102 Matwijkiw A, Matwijkiw B (2018a) International relations begin at home: a humanitarian learning lesson from the kingdom of Denmark. Int Stud J 1581:103–156 Matwijkiw A, Matwijkiw B (2018b) Bahrain anno 2017: peace or regime change? The ongoing human rights dilemma and the ethics pillar as a measurement. Glob Commun Yearb Int Law J 17:131–146 Matwijkiw A, Matwijkiw B (2019) [Human] values and ethics in environmental health discourse and decision-making: the complex stakeholder controversy and the possibility of ‘Win-Win’ outcomes. In: Negri S (ed) Environmental health in international and EU law: current challenges and legal responses. Routledge-Giappichelli, Turin-Abingdon, pp 3–25 Michelot M (2019) The Article 7 Proceedings against Poland and Hungary: what concrete effects?. Istitutedelors.ue, Thinking Europe (6 May) Miteva S (2021) Populism and cozy ties with Russia and China: Vucic takes Serbia further away from EU. EURACTIV. https://www.euractiv.com/section/enlargement/opinion/populism-andcozy-ties-with-russia-and-china-vucic-takes-serbia-further-away-fromeu/ O’Connell ME (2012) Jus Cogens: international law’s higher ethical norms. In: Childress DE III (ed) The role of ethics in international law. Cambridge University Press, Cambridge, pp 78–98 Orford A (2013) Moral internationalism and the responsibility to protect. Eur J Int Law 24(1): 83–108 Oriolo A (2021) Dressing neutrally v. religious freedom in European ‘headscarf cases’: looking for a rationale to legitimize the ban on concealing faces in international (human rights) jurisprudence. In: Matwijkiw A, Oriolo A (eds) Law, cultural studies and the ‘Burqa Ban’ trend. An interdisciplinary handbook. Intersentia, Cambridge, pp 205–230 Perez AP (2020) The Zagreb Summit: one step forward, two steps back. Group for Legal and Political Studies. http://www.legalpoliticalstudies.org/the-zagreb-summit-one-step-forwardtwo-steps-back/ Rimmer PJ (2020) China’s global vision and actions: reactions to belt, road and beyond. Edward Elgar Publishing Sangiovanni A (2012) The irrelevance of coercion, imposition, and framing to distributive justice. Philosophy Public Aff 40(2):79–110 Sangiovanni A (2013) Solidarity in the European Union. Oxford J Legal Stud 33(2):213–241 Szucs A, Ozturk T (2020) Western Balkans is ‘priority’: EU top official. [Szucs and Ozturk]. Anadolu Agency. https://www.aa.com.tr/en/europe/western-balkans-is-priority-eu-top-offi cial/1831836 UN General Assembly, A/RES/67/1 (2012) Declaration of the High-Level Meeting of the General Assembly on the Rule of Law at the National and International Levels. https://www.un.org/ ruleoflaw/files/A-RES-67-1.pdf Wang W, Rasare N (2021) China is changing Serbia from the inside. The Diplomat (3 April). https://thediplomat.com/2021/04/china-is-changing-serbia-from-the-inside/ Wattad MSA (2009) The Rome Statute & Captain Planet: what lies between ‘Crime Against Humanity’ and the ‘Natural Environment’? Fordham Environ Law Revue 19(2):264–285 Wilkinson T (2021) Biden to restrict U.S. aid to Central American governments, set new conditions for money. Los Angeles Times (10 March). https://www.latimes.com/politics/story/2021-0310/biden-to-restrict-u-s-aid-to-central-american-governments-set-new-conditions-for-money Zhexin Z (2018) The belt and road initiative: China’s new geopolitical strategy? China Q Int Strategic Stud 4(3):327–343

A Look Behind the Legal Scene: Philosophical Stakeholder Responses. . .

197

Regulations European Council (1950) European Convention on Human Rights. https://www.echr.coe.int/ documents/convention_eng.pdf European Council (1996) Social Charter Revised. https://www.coe.int/en/web/conventions/fulllist/-/conventions/rms/090000168007cf93 European Council (29 April 2004) Directive 2004/38/EC. https://eur-lex.europa.eu/legal-content/ EN/TXT/PDF/?uri=CELEX:32004L0038&from=EN UN General Assembly (30 November 2012) Declaration of the High-Level Meeting of the General Assembly on the Rule of Law at the National and International Levels, A/RES/67/1. https:// www.un.org/ruleoflaw/files/A-RES-67-1.pdf UN General Assembly (2 December 2004) Note by the Secretary-General, U.N. Doc. A/59/565. https://www.un.org/ruleoflaw/files/gaA.59.565_En.pdf UN General Assembly (16 December 1966, entered into force 3 January 1976) International Covenant on Economic, Social and Cultural Rights GA Res. 2200A (XXI), 21 UNGAOR Supp. (No. 16), UN Doc. A/6316, 993 UNTS 3 [(ICESCR]. https://treaties.un.org/Pages/ showDetails.aspx?objid=080000028002b6ed UN Security Council (23 August 2004) Report of the Secretary-General, The rule of law and transitional justice in conflict and post-conflict societies, Doc. S/2004/616. https://www.un.org/ ruleoflaw/files/2004%20report.pdf UN High-Level Meeting (26 July 2000) Global Compact. https://www.unglobalcompact.org/whatis-gc/mission/principles

Online Documents Anadolu Agency (6 May 2020) Szucs A, Ozturk T: Western Balkans is ‘priority’: EU top official. [Szucs and Ozturk]. https://www.aa.com.tr/en/europe/western-balkans-is-priority-eu-top-offi cial/1831836 Centre for Civic Education (6 July 2018) Critical Thinking Against Populism in Montenegro. http:// cgo-cce.org/en/2018/07/06/kritickim-promisljanjem-protiv-populizma-u-crnoj-gori/#. YL9CeWhKhPY Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions (5 February 2020a), Enhancing the Accession Process – A credible EU perspective for the Western Balkans (Communication). https://eurlex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:52020DC0057&from=EN Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions (6 October 2020b) 2020 Communication on EU Enlargement Policy. https://ec.europa.eu/neighbourhood-enlargement/sites/default/ files/20201006-communication-on-eu-enlargement-policy_en.pdf Council of the European Union (6 May 2020) EU-Western Balkans Zagreb summit. https://www. consilium.europa.eu/en/meetings/international-summit/2020/05/06/ Civil Society Forum of the Western Balkans: The Berlin Process Information and Resource Centre (5 November 2021). Marović J: China’s growing investments in Montenegro – will the new government break their secrecy? [Marović]. https://berlinprocess.info/op-eds/chinas-growinginvestments-in-montenegro-will-the-new-government-break-their-secrecy/ DK4 (10 June 2021a) Europa og den nye verdensorden – Demokratiernes tilbagetog. https://www. youtube.com/watch?v=nPgWYEMi-3k DK4 (10 June 2021b) Europa og den nye verdensorden – Ruslands revanchisme. https://www. youtube.com/watch?v=p13FYkGYA_M

198

A. Matwijkiw and B. Matwijkiw

EEASl (21 May 2021) Borrell J: Western Balkans: We need to change the dynamic. [Borrell]. https://eeas.europa.eu/headquarters/headquarters-homepage/98838/western-balkans-we-needchange-dynamic_en EURACTIV (20 April 2021) Miteva S: Populism and cozy ties with Russia and China: Vucic takes Serbia further away from EU. [Miteva]. https://www.euractiv.com/section/enlargement/ opinion/populism-and-cozy-ties-with-russia-and-china-vucic-takes-serbia-further-away-fromeu/ European Commission (2021) The European Pillar of Social Rights Action Plan. https://op.europa. eu/webpub/empl/european-pillar-of-social-rights/en/ European Commission (6 May 2020a) Statement by the President Von der Leyen (following the EU-Western Balkans Zagreb Summit). https://ec.europa.eu/commission/presscorner/detail/en/ statement_20_825 Commission to the European Parliament et al (30 September 2020b) 2020 Rule of Law Report: The Rule of Law Situation in the European Union (Communication). https://ec.europa.eu/ commission/presscorner/detail/en/ip_20_1756 European Commission (6 October 2020c) Montenegro 2020 Report. https://ec.europa.eu/ neighbourhood-enlargement/sites/default/files/montenegro_report_2020.pdf European Commission (6 October 2020d) Serbia 2020 Report. https://ec.europa.eu/neighbourhoodenlargement/sites/default/files/serbia_report_2020.pdf European Commission (19 June 2019a) Further strengthening the Rule of Law within the Union: State of play and possible next steps (Communication). https://www.eesc.europa.eu/en/ourwork/opinions-information-reports/opinions/further-strengthening-rule-law-within-union-stateplay-and-possible-next-steps-communication European Commission (17–19 July 2019b) Stakeholder Contributions. https://ec.europa.eu/info/ publications/stakeholder-contributions_en European Commission (17 July 2019c) Strengthening the rule of law within the Union: A blueprint for action (Communication). https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri= CELEX:52019DC0343&from=EN European Commission (8 November 2006) Commission proposes renewed consensus on enlargement. https://ec.europa.eu/commission/presscorner/detail/en/IP_06_1523 European Council in Action (2020) Outcome of the Zagreb EU-Western Balkans video summit of 6 May 2020 (briefing). https://www.europarl.europa.eu/RegData/etudes/BRIE/2020/642836/ EPRS_BRI(2020)642836_EN.pdf European Parliament (2020) Facts Sheet on the European Union: The Enlargement of the Union. https://www.europarl.europa.eu/ftu/pdf/en/FTU_5.5.1.pdf EU CSR Forum (30 June 2004) Final forum report, European Multi Stakeholder Forum on Corporate Social Responsibility. http://www.indianet.nl/EU-MSF_CSR.pdf Freedom House (2020) Csaky Z: Dropping the democratic facade in Europe and Eurasia. [Csaky]. https://freedomhouse.org/report/nations-transit/2020/dropping-democratic-facade Group for Legal and Political Studies (8 July 2020) Perez AP: The Zagreb Summit: one step forward, two steps back. [Perez]. http://www.legalpoliticalstudies.org/the-zagreb-summit-onestep-forward-two-steps-back/ Jean Monnet EUWEB Module 2nd Edition’s Inaugural Conference, Department of Legal Sciences (Law School), University of Salerno, Italy: Matwijkiw A (3 March 2021) EU Western Balkans Cooperation and Protection of Fundamental Human Rights: Philosophical Stakeholder Remarks [About Values]. [Matwijkiw 2021]. https://www.euweb.org/wp-content/uploads/2021/03/ EUWEB-3-3-2021-SLIDES-Anja-Matwijkiw.pdf Office of the Prosecutor of the ICC, Policy Paper on Case Selection and Prioritisation (15 September 2016). [OPICC]. https://www.icc-cpi.int/itemsdocuments/20160915_otp-policy_case-selec tion_eng.pdf Transparency International, Dell G: UNGAA 2021 Ignores the Grand Corruption Elephant but Creates a Pathway to Improve the International Framework, 14 June 2021. [Dell]. https://www.

A Look Behind the Legal Scene: Philosophical Stakeholder Responses. . .

199

transparency.org/en/blog/ungass-2021-ignores-grand-corruption-elephant-but-creates-path way-improvement-international-framework# United Nations Office of Drugs and Crime (23 October 2017) Fedotov J: In Just Two Decades, Technology Has Become a Cornerstone of Criminality [Fedotov] https://www.unodc.org/ unodc/en/frontpage/2017/October/in-just-two-decades%2D%2Dtechnology-has-become-a-cor nerstone-of-criminality.html

Anja Matwijkiw (Ph.D.) is Professor of Ethics & Human Rights at the Indiana University Graduate School & Department of Philosophy, IU Northwest; and Affiliated Faculty at the Institute for European Studies, IU Bloomington, USA. Furthermore, Professor Anja Matwijkiw is a former Vice-President of the Shared Ethics Advisory Commission (SEAC) for Northwest Indiana. In this capacity, she worked to promote accountability in local government. Professor Matwijkiw is on the Editorial Boards, International Advisory Boards and Scientific Committees for various journals and presses. These include the Global Community Yearbook of International Law and Jurisprudence (Oxford University Press), International Criminal Law Review (Brill|Nijhoff), Journal of International Criminal Law, International Studies Journal, and EUWEB Legal Essays. Global & International Perspectives. Professor Matwijkiw’s interdisciplinary expertise draws from the theoretical foundations and methodologies of law, disciplines in the social sciences and the humanities, especially philosophy, ethics, and political thought. One of her most recent research outcomes is Law, Cultural Studies and the Burqa Ban Trend: An Interdisciplinary Handbook (Anja Matwijkiw & Anna Oriolo eds., Intersentia, 2021). Together with Bronik Matwijkiw, she developed the position called Stakeholder Jurisprudence. In 2021, they began to collaborate with law faculty at Zagreb University to explore emerging crimes in a human rights context. Professor Anja Matwijkiw has been a Carlsberg Research Fellow and Researcher at Lucy Cavendish College, University of Cambridge (1990–1995); a Visiting Lecturer at the Human Rights Program, University of Chicago, where she also was a Faculty Advisor for M.A. students at the Center for International Studies (2000–2003); a Visiting Researcher at Copenhagen Law School and recipient of the New Frontiers in the Arts & Humanities, IU Bloomington (2016–2017). She went on to be awarded the Fulbright Distinguished Chair of Public International Law, Raoul Wallenberg Institute of Human Rights and Humanitarian Law & Faculty of Law, Lund University, Sweden (2019–2020). Bronik Matwijkiw (Ph.D.) is currently an Affiliated Research Partner and Visiting Researcher at the Faculty of Law, the University of Zagreb, Croatia. His research interests span philosophy, ethics, (philosophy of) law, human rights, and stakeholder frameworks. He completed his PostDoc at the University of Chicago (Franke Institute for the Humanities & Department of Philosophy, 1998–2002), where he also served as a voting member of the Human Rights Program to establish the Scholars at Risk Network. In the past, Dr. Matwijkiw has taught at several universities in the United States, both public and private (Creighton University, NE, Chicago State University, IL, and Southeast Missouri State University, MO). He has secured many publications in competitive scholarly outlets, e.g. Brill|Nijhoff, Intersentia, Oxford University Press, The Philosophical Forum, International Criminal Law Review, International Journal of Applied Philosophy, Revue Internationale De Droit Pénal, and Tidsskrift for Rettsvitenskap [Journal of Jurisprudence]. Dr. Bronik Matwijkiw is the Senior Assistant to the General Editor of the Global Community Yearbook of International Law and Jurisprudence. In 2018, his commitment to interdisciplinary scholarship was an instrumental factor in the Yearbook’s adoption of ‘Legal Philosophy and Ethics’ as research areas. Dr. Bronik Matwijkiw is a recipient of The Niels Bohr Award (the Royal Danish Academy of Sciences and Letters) and HRH Prince Joachim and HRH Princess Alexandra’s Foundation, Denmark. He has also been recognized as an expert authority (on aesthetics) by Kunstindeks Danmark & Weilbachs Kunstnerleksikon [Danish Art Index & Weilbach’s Art Dictionary].

200

A. Matwijkiw and B. Matwijkiw

In 2020, Dr. Bronik Matwijkiw joined the U.S. Working Group as a Co-Investigator for a research programme co-executed by Universidad del Rosario (Colombia) that addresses comparative law with a view to U.S. foreign policy and international cooperation. In addition to his interdisciplinary interests, Dr. Bronik Matwijkiw is working on Ludwig Feuerbach and other central figures in European philosophy.

The Rule of Law, Transnational Crimes, and the Human Rights-Based Approach in the European Union: The Court of Justice as Ultimate Guardian of the ‘Good’ Laws Anna Oriolo

‘If crime crosses borders, so must law enforcement. If the rule of law is undermined not only in one country, but in many, then those who defend it cannot limit themselves to purely national means’. Address by Kofi A. Anann at the Opening of the Signing Conference for the United Nations Convention Against Transnational Organized Crime, 12 December 2000.

Abstract The recent proliferation of the normative framework to prevent and punish transnational crimes has highlighted the importance (and autonomy) of the rule of law principle in the twenty-first century, especially in its substantial dimension, i.e., the adequate protection of human rights and the State’s compliance with its international obligations to respect, protect, and fulfil individual guarantees. In this chapter, we focus on the state of the art in the European scenario, emphasizing the need to ensure more effective individual rights in the fight against transnational crimes. To this end, the analysis considers three closely related topics, i.e., the ‘substantial’ dimension of the rule of law and the human rights-based approach (HRBA) as a complementary mechanism to the traditional criminal system to counteract crossborder crimes, transnational criminal law as the legal framework to foster the rule of law, and several shortcomings of the HRBA within the EU legal framework mainly based on the criminal or repressive approach to the fight against multinational violations. In the absence of normative intervention, the chapter emphasizes the European Court of Justice’s (ECJ) role in extending HRBA to the EU counter-crime regime, contributing to produce a uniform background of definitions, redresses, and remedies concerning violations of individual guarantees linked to cross-border offences.

A. Oriolo (✉) Department of Legal Sciences (School of Law), University of Salerno, Fisciano, Italy e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 T. Russo et al. (eds.), Solidarity and Rule of Law, European Union and its Neighbours in a Globalized World 9, https://doi.org/10.1007/978-3-031-29227-9_11

201

202

A. Oriolo

1 Introduction: The Rule of Law, Democracy, and Human Rights at the International and European Level The principle of the rule of law (Rechtsstaat, Etat de droit)1 ‘is perhaps the most powerful and often repeated political ideal in contemporary global discourse’.2 At the worldwide level, the notion of the rule of law already appeared in the Preamble to the Universal Declaration of Human Rights of 1948, stating ‘human rights should be protected by the rule of law’, and in Resolution 67/1 of the United Nations (UN) General Assembly stressing that ‘human rights, the rule of law and democracy are interlinked and mutually reinforcing and that they belong to the universal and indivisible core values and principles of the [Organization]’.3 Similarly, in the European area, the rule of law principle, together with democracy and human rights, constitute the foundational values of both the Council of Europe and the European Union, enshrined in a number of human rights instruments and other standard-setting documents. As for the Council of Europe, the rule of law is notably mentioned as an element of ‘common heritage’ of Member States in the Preambles of the 1949 Statute and the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms,4 as a founding principle of European democracies in the 2002 Resolution establishing the European Commission for the Efficiency of Justice,5 as well as a priority objective in the Statute of the European Commission for Democracy through Law (Venice Commission).6 In the European Union, the concept of the rule of law is consecrated not only in the Preamble, but also in Art. 2 of the Treaty on European Union (TEU), according to which ‘The Union is founded on the values of respect for human dignity, freedom, 1 As stressed by the Venice Commission (25–26 March 2011) 2011 Report on the rule of law CDL– AD(2011)003rev., para. 4: ‘[a]lthough the terminology is similar, it is important to note at the outset that the notion of “Rule of law” is not always synonymous with that of “Rechtsstaat”, “Estado de Direito” or “Etat de droit” (or the term employed by the Council of Europe: “prééminence du droit”). Nor is it synonymous with the Russian notion of “Rule of the laws/of the statutes” (verkhovenstvo zakona) nor with the term “pravovoe gosudarstvo” (“law governed state”)’. 2 Tamanaha (2012), p. 232. 3 United Nations General Assembly Resolution 67/1 (30 November 2012) Declaration of the Highlevel Meeting of the General Assembly on the Rule of Law at the National and International Levels, A/RES/67/1, para. 5. 4 The Preamble to the Statute of the Council of Europe, underlines the ‘devotion’ of Member States ‘to the spiritual and moral values which are the common heritage of their peoples and the true source of individual freedom, political liberty and the rule of law, principles which form the basis of all genuine democracy’. The Preamble to the European Convention on Human Rights states that ‘the governments of European countries [. . .] are like–minded and have a common heritage of political traditions, ideals, freedom and the rule of law’. 5 Resolution Res(2002)12 of the Council of Europe Committee of Ministers (18 September 2002) establishing the European Commission for the efficiency of justice (CEPEJ). 6 Resolution (2002)3 of the Council of Europe Committee of Ministers, (21 February 2002) Revised Statute of the European Commission for Democracy through Law, Art. 1.

The Rule of Law, Transnational Crimes, and the Human Rights-Based. . .

203

democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities’. It also emerges in the Preamble to the Charter of Fundamental Rights of the European Union, as well as forming the basis of EU external action in Art. 21 TEU. Nevertheless, there is no universally agreed definition of the rule of law, and the concepts of democracy and respect for human rights have long enjoyed much more attention in legal texts and practice. For some scholars, the use of the term has even lost its original value. Joseph Raz, for example, commented on the tendency to use the rule of law as a short-hand description of the positive aspects of any given political system.7 John Finnis deems that the rule of law is ‘[t]he name commonly given to the state of affairs in which a legal system is legally in good shape’.8 Conversely, Judith Shklar suggests that the expression might have become meaningless thanks to ideological abuse and general over-use,9 perhaps harsher than Thomas Carothers who remarked that ‘[t]here is also uncertainty about what the essence of the rule of law actually is’.10 Despite these considerations, the recent proliferation of the normative framework to prevent and punish transnational crimes has highlighted the importance (and autonomy) of the rule of law principle in the twenty-first century, especially in its substantial dimension, i.e., the adequate protection of human rights and a State’s compliance with its international obligations to respect, protect, and fulfil individual guarantees. In this chapter, we focus on the state of the art in the European scenario, emphasizing the need to ensure more effective individual (judicial) rights in the fight against transnational crimes. To this end, the analysis considers three closely related topics, i.e., the ‘substantial’ dimension of the rule of law and the human rights-based approach (HRBA) as a complementary mechanism to the traditional criminal system to counteract crossborder crimes (Sect. 2), transnational criminal law as the legal framework to foster the rule of law (Sect. 3), and several shortcomings of the HRBA within the legal frameworks of the EU for internal (Sect. 4) and external security (Sect. 5) mainly based on the criminal or repressive approach to the fight against multinational violations. In the absence of normative intervention, the chapter aims to emphasize the European Court of Justice’s (ECJ) role in extending HRBA to the EU countercrime regime, contributing to produce a uniform background of definitions, redresses, and remedies concerning violations of individual guarantees linked to cross-border offences (Sect. 6).

7

Raz (1979), p. 210. Finnis (1980), p. 270. 9 Shklar (1987), p. 1. 10 Carothers (2003), p. 3. 8

204

A. Oriolo

2 The Dual Dimension of the Rule of Law: The ‘Good’ Law A broad definition of the rule of law was offered by former UN Secretary-General Kofi Annan in his 2004 report stating, ‘The “rule of law” [. . .] refers to a principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards. It requires, as well, measures to ensure adherence to the principles of supremacy of law, equality before the law, accountability to the law, fairness in the application of the law, separation of powers, participation in decision-making, legal certainty, avoidance of arbitrariness and procedural and legal transparency’.11 This description covers both the ‘formal’ and ‘substantial’ dimensions of the rule of law stressed by eminent scholars and jurists, such as Brian Tamanaha, Paul Craig, Tom Bingham, Valsamis Mitsilegas, and Ronald Dworkin. In other words, adherence to the rule of law is necessary to ensure that individual rights are protected from those governing the State. The general divide in opinion seems to be that the idea that government action has a legal foundation does nothing more than provide procedural safeguards against exercising arbitrary power. Indeed, in Tamanaha’s view, some theories emphasize the formal aspects, underlining limitations on the exercise of State authority, therefore qualifying as thin theories. These should be clearly distinguished from thick theories that incorporate substantive notions of justice and protection of human rights/fundamental values, thus going beyond the boundaries set by the previous category.12 Worth noting is that Tamanaha himself had occasion to stress the importance of the rule of law, as a prius to the society it intends to preside over (i.e., law as an instrument of government action). In this approach, the rule of law stands for formal legality— clarity, equality, and certainty of law—in the first instance, and only afterwards as a conception of a tool of democracy.13 Tamanaha’s view was foreshadowed by Joseph Raz, a true and key advocate of formal law who stated that ‘[m]y purpose [. . .] was merely to illustrate the power and fruitfulness of the formal conception of the rule of law’ through a series of

11

Report of the Secretary-General (23 August 2004) The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies, S/2004/616, Section III, para. 6. 12 Tamanaha (2007), p. 3; and Peerenboom (2003), p. 6 contends that said categories are more of a liquid substance as ‘thick’ theories usually rest on the formal ones, whereas any ‘thin’ theory must necessarily be anchored in a socio–political context. 13 Tamanaha (2004), p. 91; the Author, in his later work, Tamanaha (2007), p. 7 ff., lists the social, economic and political benefits stemming from the rule of law: ‘1. Enhances Certainty, Predictability, and Security in Two Arenas: Between Citizens and the Government (Vertical), and Among Citizens (Horizontal) [.] 2. Restricts Discretion of Government Officials, Reducing Willfulness and Arbitrariness [.] 3. A Peaceful Social Order is Maintained Through Legal Rules [.] 4. Economic Development is Facilitated by Certainty, Predictability, and Security [.] 5. Fundamental Justice of the Requirement That the Rules Must be Applied Equally to Everyone According to Their Terms’.

The Rule of Law, Transnational Crimes, and the Human Rights-Based. . .

205

implications and circumstances related to the correct (formalistic, of course) application of the rule of law principle.14 The formalistic approach also guides Stanley De Smith, Jeffrey Jowell, and Harry Woolf’s approach who jointly affirmed that powers exercised by politicians must have a legitimate foundation based on the authority conferred by law,15 as well as the nineteenth century jurist Albert Dicey, willing so early to summarize the rule of law in merely three aspects: (i) the supremacy of regular law over arbitrary powers; (ii) equality before the law; (iii) no higher law other than the rights of individuals determined through the courts.16 Similarly, in Bingham’s interpretation, the (formal) characterization of the rule of law assumes that ‘all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly made, taking effect (generally) in the future and publicly administered in the courts’.17 This conception of the rule of law englobes both some formal requirements concerning the generality, clarity, publicity, stability, and prospectivity of the norms governing a society, and some procedural components involving the processes by which these norms are administered, and the institutions, like courts, and independent judiciary that their administration requires. However, Lord Bingham seems to have strayed from the most radical procedural and formal visions of the rule of law, since he defined, in a very substantive and contemporary way, what he believed to be the eight sub-sections of the rule of law, including among them the protection of human rights (with a special mention of the right to a fair trial).18 While insisting on these formal and procedural aspects, the majority of scholars therefore consider that the rule of law content is not exhaustive and demands some substantive components i.e., adequate protection of human rights and the State’s compliance with its international obligations to respect, protect, and fulfil individual guarantees.19 For instance, Richard Fallon argues that substantive elements have sneaked into formal theories, with or without their advocates noticing.20

14

Raz (1979), p. 219. These implications and circumstances are totally similar to those listed by Tamanaha. At p. 210 he finds that the main issue with articulating and backing a substantive theory is that it commits one to a complete social philosophy, thus rendering the rule of law no longer meaningful as such. 15 De Smith et al. (1995), p. 14: ‘laws as enacted by Parliament be faithfully executed by officials; that orders of courts should be obeyed; that individuals wishing to enforce the law should have reasonable access to the courts; that no person should be condemned unheard, and that power should not be arbitrarily exercised’. 16 Dicey (1885), p. 171. 17 Bingham (2007), p. 69. 18 Bingham (2011), pp. 55–132, especially at p. 66 ff. The eight sub–sections are: (i) accessibility, (ii) law not discretion, (iii) equality, (iv) exercise of power, (v) human rights, (vi) dispute resolution, (vii) fair trial, and (viii) compliance with international law. 19 Peters (2018); United Nations Human Rights Council (9 July 2019) The Negative Impact of Corruption on the Enjoyment of Human Rights, A/HRC/41/L.11. 20 Fallon (1997), p. 54.

206

A. Oriolo

More precisely, although in its formal essence the rule of law principle requires that every government action must be undertaken in accordance with a law by the appropriate organ made clear, prospective, general, stable, and equally applicable, in its substantive understanding, this principle also implies that laws must be substantively ‘just’, hence incorporating the ideals of justice, fairness, and respect for fundamental human rights.21 This understanding has been highly regarded at all levels, even by institutions.22 Furthermore, this conception of the rule of law more broadly encompasses a set of ideals, whether understood in terms of the protection of human rights, specific forms of organized government, or particular economic arrangements, such as free market capitalism.23 Accordingly, Lon Fuller believes that the law must possess a sort of internal morality to be worthy of being called a legal system. In his view, a regime that merely commands authority can be a governance system, but not a legal system. In this perspective, a legal system must serve the interests of a population and protect its rights, and not just those of the regime.24 Forming his own ‘playground’ Dworkin referred to the two conceptions of the rule of law as the ‘rule-book’ (formal) and the ‘rights’ (substantive) models. The ‘rule-book’ model maintains that power is exclusively ruled by law, in full respect of the legality principle. Therefore, governments and citizens must both abide by and ‘play’ the game following these rules, but the content of these rules does not belong to the rule of law conception (in a nutshell, it does not matter at all), and the sole purpose is letting the rulers and ruled ‘play’ in a fair way. Such premise pushes the ‘rights’ model even further by relying on the content of the rules, as the purpose of the rule of law is to protect the rights of individuals. This purpose, according to avowed substantialist Dworkin, is the reason on which the rule of law is based. 21

In its 2011 report, the Venice Commission of Council of Europe concluded that, despite differences of opinion, consensus exists on the core elements of the Rule of Law (as well as on those of the Rechtsstaat and of the Etat de droit), which are not only formal but also substantive or material. These core elements are: (1) Legality, including a transparent, accountable and democratic process for enacting law; (2) Legal certainty; (3) Prohibition of arbitrariness; (4) Access to justice before independent and impartial courts, including judicial review of administrative acts; (5) Respect for human rights; and (6) Nondiscrimination and equality before the law. 22 Hans Corell, former UN Legal Counsel (1994–2004), stated that the rule of law requires both democracy and compliance with human rights; Corell (2004), p. 391. 23 Rawls (1972), pp. 235–43; Hayek (1944), pp. 72–87 and Jennings (1952), p. 47: ‘[t]he doctrine involves some considerable limitation on the powers of every political authority, except possibly (for this is open to dispute) those of a representative legislature. Indeed, it contains [. . .] something more, though it is not capable of precise definition. It is an attitude, an expression of liberal and democratic principles, in themselves vague when it is sought to analyse them, but clear enough in their results’. 24 Fuller (1963) p. 210: ‘[s]urely the very essence of the Rule of Law is that in acting upon the citizen (by putting them in jail, for example, or declaring invalid a deed under which he claims title to property) a government will faithfully apply rules previously declared as those to be followed by the citizen and as being determinative of his rights and duties. If the Rule of Law does not mean this, it means nothing’.

The Rule of Law, Transnational Crimes, and the Human Rights-Based. . .

207

Without pursuing the protection of individual rights (through safeguarding them and delivering justice), no other justification to the power of the rule of law over citizens can be found.25 In his analysis of substantive theories, Craig likewise came to the conclusion that these theories hold that, ‘Certain substantive rights are said to be based on, or derived from, the rule of law. The concept is used as the foundation for these rights, which are then used to distinguish between “good” laws, which comply with such rights, and “bad” laws which do not’.26 From these different theorizations (formal and substantive) of the rule of law, a further categorization emerges thanks to the efforts of Mitsilegas focused on the temporal element: rule of law ex ante, representing all those principles applicable in the law-making process (such as legality, legitimacy, transparency, and democracy), and rule of law ex post, denoting principles applicable after the enactment of legislation (such as legal certainty, prohibition of arbitrariness, and effective judicial protection, including the protection of human rights).27 However, an intermediate position also exists among scholars. A valid example is Jeremy Waldron’s approach that shores up formalistic elements while not entirely overlooking the substantive aspects. In fact, Waldron thinks that some formal requirements are unavoidable—laws must be public, non-contradictory, and non-retroactive; procedural guarantees must be ensured in the courtroom, such as the right to an attorney, to an impartial judge, and to a fair trial—but suggests only to a certain extent that substantive requirements would also be needed. Waldron mistrusts the latter, as they might constrain courtroom procedures and legislative enactments.28

3 The Globalization of Harmful Conduct: Transnational Criminal Law as the Legal Framework to Foster the Rule of Law One of the areas in which the dual dimension (formal and substantive) of the rule of law is particularly evident is the fight against transnational crimes, i.e., criminal phenomena (including organized, corporate, professional, and political crimes) 25

Dworkin (1985), pp. 11–13. Craig (1997), p. 467. 27 Mitsilegas (2016), pp. 109–128. 28 Waldron (2011), pp. 3–31. At p. 8 he admits ‘I still believe that it is important not to let our enthusiasm for a substantive conception’. This statement was criticized by the substantialist Brettschneider (2011), pp. 52–63, who thinks that Waldron’s argument had to be further expanded, revealing an unconscious substantive approach, p. 53: ‘Specifically, I emphasize two ways that Waldron’s argument might be expanded. I argue first that Waldron’s appeal to dignity as the moral basis of procedures commits him to an account of substantive guarantees [. . .] Second, I expand on Waldron’s notion of dignity—itself a substantive value—as respect for ‘active intelligence’. In particular, I argue that those subject to law are entitled to nonarbitrary treatment’. 26

208

A. Oriolo

transcending international borders, transgressing the laws of several States or having an impact on countries different from where they originated.29 Commonly, the legal framework to counter transnational crimes is enforced through criminal justice frameworks, i.e., criminalizing certain individual conduct in domestic legislation, and prosecuting and punishing perpetrators. This ‘criminal justice approach’ in essence establishes a mainly ‘repressive’ mechanism enacted ‘after’ the transnational crime has been committed, and by itself does not appear to satisfactorily eradicate cross-border violations. Scholars and practitioners have therefore advanced several arguments in favor of adopting a complementary and ‘preventive’ approach to transnational crimes, the human rights-based approach (HRBA)30 centered on the role of individuals as ‘rights-holders’ empowered to claim and exercise their rights, and the role of States as ‘duty-bearers’ having ‘international’ obligations to respect, protect, and fulfil human rights,31 i.e., due process, defense guarantees, and the right to effective remedy. As for the criminal justice approach, this is reflected in the main international instruments countering serious transnational crimes, such as the 2000 United Nations Convention against Transnational Organized Crime (UNTOC or Palermo Convention).32 UNTOC deliberately does not contain a closed definition of transnational crimes nor lists them,33 preferring to focus on the multinational nature of these violations to allow for a broader applicability of the provisions to new types of offences that constantly emerge as global, regional, and local conditions change over time. Hence, under Art. 3 (2) UNTOC, a crime is transnational in nature if: (a) it is committed in more than one State; (b) it is committed in one State but a substantial part of its preparation, planning, direction, or control takes place in another State; (c) it is

29

Mueller (2001), Bassiouni and Vetere (1998) and Fijnaut (2000). In general, see Albanese (2005), Friedrichs (2007), Reichel and Albanese (2014) and Ponti (2010). 30 See Hemsley (2015), Merkle (2018) and Peters (2018). 31 Peters (2018). 32 UNTOC, adopted by United Nations General Assembly Resolution 55/25 (15 November 2000), A/RES/55/25, entered into force on 29 September 2003 and was further supplemented by three Protocols: Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children, adopted by United Nations General Assembly Resolution 55/25 (15 November 2000), A/RES/55/25, entered into force on 25 December 2003; Protocol against the Smuggling of Migrants by Land, Sea and Air, adopted by United Nations General Assembly Resolution 55/25 (15 November 2000), A/RES/55/25, entered into force on 28 January 2004; Protocol against the Illicit Manufacturing of and Trafficking in Firearms, their Parts and Components and Ammunition, adopted by United Nations General Assembly Resolution 55/255 (31 May 2001), A/RES/55/255, entered into force on 3 July 2005. 33 The Convention does contain a definition of ‘organized criminal group’. In Art. 2(a): ‘For the purposes of this Convention: (a) “Organized criminal group” shall mean a structured group of three or more persons, existing for a period of time and acting in concert with the aim of committing one or more serious crimes or offences established in accordance with this Convention, in order to obtain, directly or indirectly, a financial or other material benefit’.

The Rule of Law, Transnational Crimes, and the Human Rights-Based. . .

209

committed in one State but involves an organized criminal group that engages in criminal activities in more than one State; (d) it is committed in one State but has substantial effects in another State. This definition covers a whole series of cross-border violations of worldwide interest, requiring a ‘global response’ through State cooperation similarly to ‘international’ or ‘core’ crimes (such as war crimes, crimes against humanity, genocide, and crimes against peace), even if the latter may or may not involve multiple countries. The ‘multinational’ nature of these offences is consequently the evident feature of transnational crimes, such as the provision of illicit goods (drug trafficking, trafficking in stolen property, weapons trafficking, and counterfeiting), illicit services (commercial sex, and human trafficking), and infiltration of business and government (fraud, racketeering, money laundering, and corruption) that have ‘actual or potential trans-boundary effects of national and international concern’.34 However, the cross-border impact of these offences also ‘poses unique problems in understanding their causes, developing prevention strategies, and in mounting effective adjudication procedures’.35 More precisely, on the transnational ‘nature’ of the crime, in accordance with Art. 3 of the Palermo Convention, some eminent scholars attempted to identify a (new) transnational criminal law (TCL) as a ‘system regulated by both international and national law’36 with different profiles with respect to the notions of international criminal law and national criminal law,37 and not fitting into the traditional divisions’.38 Thus, ‘transnational criminal law’ has been used in Neil Boister’s restrictive sense, namely ‘The indirect suppression by international law through domestic penal law of criminal activities that have actual or potential trans-boundary effects’.39 In this viewpoint, the legal framework intended to minimize or limit multinational offences consists in a conventional regime mainly developed in the nineteenth century providing ‘A range of complex provisions for the criminalization by State parties in their domestic law of certain offences, for severe penalties, for extra-territorial jurisdiction, and for a variety of procedural measures’.40 Therefore, in Cherif Bassiouni’s opinion, the violations established by this ‘prohibition regime’41 are distinguished from ‘international crimes’ stricto sensu, and classed as ‘crimes of international concern’ or ‘common crimes against

34

Boister (2003), p. 954. Albanese (2010), p. 3. 36 Mitsilegas (2017), pp. 47–49. 37 See Bassiouni (1999). 38 Boister (2003), p. 955. 39 Ibid. 40 Ibid. 41 Nadelmann (1990), p. 481. 35

210

A. Oriolo

internationally protected interests’, given that the norm is international in origin, while penal proscription is national.42 However, ‘TCL is a system dominated by sovereignty, effective law enforcement and the objectification of individuals as criminals’.43 The suppression conventions provide minimal express protection of human rights, relying in the first instance on the domestic protection of such rights, and thereafter on general international human rights law. The issue at stake is that the conventions are adopted at the international level but applied on the national stage, and if human rights come into play at all in the domestic domain, then they do so reactively and not proactively. Furthermore, the conventional repressive regime encourages a ‘law and order’ approach from States that might imply going further than strictly necessary, leading to negative consequences for individual rights. Therefore, caution is required in integrating the TCL system with the general human rights framework, ensuring the basic constitutional values of international law, such as human dignity.44

4 The EU’s (Transnational) Criminal Competence to Ensure Common Security and Promote the Rule of Law Similarly to the conventional suppression system, the inadequate emphasis on individual guarantees would also seem to characterize EU action to counteract transnational crimes. The EU has enacted measures in the criminal law domain for more than a decade to fight crimes that are increasingly transnational and sophisticated, with some correspondence in the definitions and sanctions for some very serious offences, such as terrorism, human and drug trafficking, and fraud impinging on EU financial interests.45 Due to the absence of an explicit legal basis prior to the 2007 Lisbon

42

Bassiouni (1999). Boister (2002), p. 199. 44 Spijkers (2011). 45 See Council Framework Decision 2002/475/JHA (13 June 2002) on combating terrorism, O.J. L 164/3; Council Framework Decision 2004/757/JHA (25 October 2004) laying down minimum provisions on the constituent elements of criminal acts and penalties in the field of illicit drug trafficking, O.J. L 335/8; Directive 2011/36/EU of the European Parliament and of the Council (5 April 2011) on preventing and combating trafficking in human beings and protecting its victims and replacing Council Framework Decision 2002/629/JHA, O.J. L 101/1; Council Act (26 July 1995) drawing up the Convention on the protection of the European Communities’ financial interests, O.J. L 316/49. 43

The Rule of Law, Transnational Crimes, and the Human Rights-Based. . .

211

Treaty, only a very limited number of measures concerned the enforcement of EU policies.46 Nevertheless, according to the European Court of Justice’s landmark judgment, while neither criminal law nor the rules of criminal procedure fall under the Community’s competence, European legislature can oblige Member States to enact criminal law measures to ensure the effectiveness of the rules laid down in certain policy areas.47 Moreover, the Treaty of Lisbon expressly recognizes the EU’s competence in procedural and substantive criminal law to ensure a high level of (common) security through the approximation of national criminal legislation, if necessary.48 It also introduced Art. 86 TFEU allowing the Council, by means of regulations, to establish a European Public Prosecutor’s Office to combat serious crimes affecting the financial interests of the Union.49 As the next sections will show, even if EU law provides minimum guarantees to protect individuals in the fight against cross-border offences, some rule of law deficits may arise from the large margins of maneuver left to Member States in their enforcement, i.e., lack of uniformity in the application of European standards, to the detriment of a uniform and effective system of redresses and remedies. In the construction of the area of freedom, security and justice, for example, Art. 67 TFEU expressly demands respect for both fundamental rights and ‘the legal systems and traditions of the Member States’. Some scholars deem this merely highlights the prominence of the principles of subsidiarity and proportionality in EU criminal law,50 yet in a different perspective, reliance on national law in counteracting transnational crimes reflects the legal principle under Union law based on respect for sovereignty and the democratic decision-making of Member States,51 which could ‘decentralize’ judicial protection in the EU,52 and consequently, impact individual rights.

46 See, however, European Court of Justice (Grand Chamber), Judgment (13 September 2005), case C–176/03, Commission v Council; European Court of Justice (Grand Chamber), Judgement (23 October 2007), case C–440/05, Commission v Council. 47 European Court of Justice (Grand Chamber), Judgment (13 September 2005), case C–176/03, Commission v Council, paras 47, 48: ‘[a]s a general rule, neither criminal law nor the rules of criminal procedure fall within the Community’s competence. [. . .] However, the last–mentioned finding does not prevent the Community legislature, when the application of effective, proportionate and dissuasive criminal penalties by the competent national authorities is an essential measure for combating serious environmental offences, from taking measures which relate to the criminal law of the Member States which it considers necessary in order to ensure that the rules which it lays down on environmental protection are fully effective’. 48 In particular see arts. 82 and 82 TFEU and next sub-sections. 49 See Oriolo (2018). 50 Schroeder (2020), p. 146. 51 Hecker (2015), p. 296 ff; Satzger (2018), p. 930 ff. 52 Mickonytė (2019).

212

4.1

A. Oriolo

Indirect EU Criminal Competence and the Establishment of Minimum Procedural and Substantive Rules

As for procedural competence, Art. 82 TFEU enables the European Parliament and Council to establish ‘minimum’ rules to facilitate the mutual recognition of judgments and judicial decisions, as well as police and judicial cooperation in criminal matters having a cross-border dimension. In particular, paragraph 2 of Art. 82 TFEU allows the Union to establish minimum rules for the rights of individuals in criminal proceedings in order to ensure that the rights of defense and the fairness of proceedings are respected. Those minimum rules have been gradually set out by the Union legislator in Directives on specific rights, such as the right to interpretation and translation, the right to information in criminal proceedings, the right of access to a lawyer, the right to be present at the trial etc.,53 which leaves to the national authorities of Member States ‘the choice of form and methods’ to achieve the common result. This situation created a ‘systemic flaw’,54 as EU States are not prevented from planning their procedures in different ways. Therefore, some scholars have expressed concern that minimum rules for rights are hardly propitious without a common understanding of how the violations of such rights should be redressed or remedied. In this approach, the absence of judicial oversight in view of mutual trust is often not counterbalanced with correspondingly strong safeguards and remedies in all Member States, or indeed when operating in a cross-border setting, and even where such safeguards and remedies are in place, they are detached from the legal framework upon which their effectiveness is built (the systemic flaw mentioned above).55 With regard to European substantive criminal law, it can be harmonized by means of a): Art. 83(1) TFEU (regulating so called Euro-crimes); b) Art. 83(2) TFEU (implementing EU policies), and also c) Art. 325(4) TFEU (protecting the EU’s financial interests).

53

Directive 2010/64/EU of the European Parliament and of the Council (20 October 2010) on the right to interpretation and translation in criminal proceeding, O.J. L 280/1; Directive 2012/13/EU of the European Parliament and of the Council (22 May 2012) on the right to information in criminal proceedings, O.J. L 142/1; Directive 2013/48/EU of the European Parliament and of the Council (22 October 2013) on the right of access to a lawyer in criminal proceedings and in European arrest warrant proceedings, and on the right to have a third party informed upon deprivation of liberty and to communicate with third persons and with consular authorities while deprived of liberty, O.J. L 294/1; Directive 2016/343/EU of the European Parliament and of the Council (9 March 2016) on the strengthening of certain aspects of the presumption of innocence and of the right to be present at the trial in criminal proceedings, O.J. L 65/1; Directive 2016/1919/ EU of the European Parliament and of the Council (26 October 2016) on legal aid for suspects and accused persons in criminal proceedings and for requested persons in European arrest warrant proceedings, O.J. L 297/1. 54 Costa Ramos et al. (2020), pp. 230–248. 55 Ibid.

The Rule of Law, Transnational Crimes, and the Human Rights-Based. . .

213

Under Art. 83 (1) TFEU, EU competences in the substantive-criminal field concern the adoption of minimum rules in the definition of crimes and sanctions in specific ‘areas of particularly serious crime with a cross-border dimension resulting from the nature or impact of such offences or from a special need to combat them on a common basis’.56 This is an autonomous but indirect criminal competence exercised via directives, i.e., acts that, as mentioned, are not self-executing in nature, binding Members States to certain objectives to be achieved, leaving them free to choose the proper means to achieve the result. This indirect competence concerns, in particular, an ‘exhaustive’ list of ten specific Euro-crimes: terrorism, human trafficking, sexual exploitation of women and children, illicit drug trafficking, illicit arms trafficking, money laundering, corruption, counterfeiting of means of payment, computer crime, and organized crime.57 Additional crimes can only be defined by the Council acting unanimously and with the consent of the European Parliament. Hence, according to TFEU, these are crimes that by definition merit EU consideration due to their very serious nature and cross-border dimension. Of course, a closer look at these ten offences shows that most are already covered by pre-Lisbon legislation (i.e., framework decisions) that has been or is in the process of being updated. As Peter Csonka and Oliver Landwehr observed, this raises suspicion that the authors of the Lisbon Treaty may not have adopted a systematic evaluation in selecting the offences, instead encompassing some but not all pre-existing legislation, thus constituting a somewhat random list.58 56 As observed by some scholars, the formula ‘areas of particularly serious crime with a cross– border dimension’ nevertheless raises some exegetical doubts: for some, it seems to presuppose a criminal–type reaction already at the national level; for others, it is devoid of real defining effects, referring to an empirical dimension capable of manifesting itself for any type of offense. See Manacorda (2014), section 3.2. 57 Most of the framework rules on substantive criminal law have now been repealed by directives based on Art. 83(1) TFEU. They are as follows: Directive 2011/36/EU (supra).; Directive 2011/93/ EU of the European Parliament and of the Council (13 December 2011) on combating the sexual abuse and sexual exploitation of children and child pornography, and replacing Council Framework Decision 2004/68/JHA, O.J. L 335; Directive 2013/40/EU of the European Parliament and of the Council (12 August 2013) on attacks against information systems and replacing Council Framework Decision 2005/222/JHA, O.J. L 218; Directive 2014/62/EU of the European Parliament and of the Council (15 May 2014) on the protection of the euro and other currencies against counterfeiting by criminal law, and replacing Council Framework Decision 2000/383/JHA, O.J. L 151; Directive (EU) 2017/541 of the European Parliament and of the Council (15 March 2017) on combating terrorism and replacing Council Framework Decision 2002/475/JHA and amending Council Decision 2005/671/JHA, O.J. L 88; Directive (EU) 2017/2103 of the European Parliament and of the Council (15 November 2017) amending Council Framework Decision 2004/757/JHA in order to include new psychoactive substances in the definition of ‘drug’ and repealing Council Decision 2005/387/JHA, O.J. L 305; Directive (EU) 2018/1673 of the European Parliament and of the Council (23 October 2018) on combating money laundering by criminal law, O.J. L 284; Directive (EU) 2019/713 of the European Parliament and of the Council (17 April 2019) on combating fraud and counterfeiting of non-cash means of payment and replacing Council Framework Decision 2001/413/JHA, O.J. L 123. 58 Csonka and Landwehr (2019), pp. 261–267.

214

A. Oriolo

Second, codifying the ancillary or annex competence developed by Court of Justice jurisprudence in the area of environmental crime and ship-source pollution, Article 83(2) TFEU allows the European Parliament and the Council, on proposal from the Commission, to establish ‘minimum rules with regard to the definition of criminal offences and sanctions if the approximation of criminal laws and regulations of the Member States proves essential to ensure the effective implementation of a Union policy in an area which has been subject to a harmonisation measure’. Without listing specific crimes, the fulfillment of certain legal criteria is a precondition of adopting criminal law measures at the EU level, notably in respect of Art. 83(2) TFEU where EU criminal policy is especially warranted, and where the communication aims to provide specific guidance. Importantly, EU institutions need to make policy choices in terms of whether or not to use criminal law (instead of other measures, such as administrative sanctions) as an enforcement tool, and determine which EU policies require the use of such law as an additional enforcement mechanism. This provision presents greater complexity, given that EU competences are not identified for specific sectors but must be exercised in those areas already subject to harmonization measures, a condition that does not appear to adequately fulfill a delimiting function of EU criminal intervention. On this point, the ‘essentiality’ requirement is crucial, as it subordinates the evaluation of the need for EU criminal law measures to the ‘effective implementation of a Union policy’, which might be interpreted in various ways.59 In any case, as Stefano Manacorda pointed out, the element of originality of Art. 83 TFEU is the European Union’s power to introduce, by means of directives, minimum standards related to the definition of criminal sanctions in the exercise of an autonomous indirect criminal competence under paragraph 1 and ancillary competence under paragraph 2, overcoming the limits set by the Court of Justice on criminal competence concerning ‘the determination of the type and level of the criminal penalties’,60 and consequently fostering the harmonization of criminal sanctions in the EU.61 Mitsilegas rightly stressed that with the introduction of Art. 83 TFEU, ‘criminal law is thus used as a tool to achieve the effectiveness of Union law’.62 Specifically, Art. 83(2) TFEU confirms a functionalist view of criminal law, which instead of an autonomous policy is perceived as expediting the effective implementation of other Union policies.63 Art. 83(2) thus adds to EU competence the power to legislate 59

Manacorda (2014), section 3.2. European Court of Justice (Grand Chamber), Judgment (23 October 2007), C–440/05, Commission v Council, para. 70; European Court of Justice (Grand Chamber), Judgment (13 September 2005), C–176/03, Commission v Council. 61 Manacorda (2014), section 3.3. See also Donini (2013), p. 41, Satzger (2019), pp. 115–120 and Foffani (2011), pp. 583 ff. 62 For a critical view, see Kaiafa (2011), arguing that the unique identity of criminal law cannot allow it to be reduced to a mere tool for the implementation of any policy. 63 Mitsilegas (2007), p. 71. 60

The Rule of Law, Transnational Crimes, and the Human Rights-Based. . .

215

beyond the domain of global security threats, for example, protecting the cornerstones of the EU architecture, such as the EU budget and internal market. In spite of this, significant rule of law deficits in terms of judicial guarantees could also arise in the context of Art. 83 TFEU given that, also with regard to EU substantive criminal competence, the choice of directives as legal instruments to regulate it, and the principle of mutual trust,64 entail the fragmentation of legal protection in national legal systems directly affecting individual rights and the uniformity of EU law.65 This concern is particularly amplified by the consideration that, under TFEU, when legislating on substantive criminal law or criminal procedure, Member States can pull the so-called ‘emergency brake’ if they consider that the proposed EU legislation under Art. 82 (3) and Art. 83 (2) touches upon fundamental aspects of their national criminal justice system, in which case the proposal should be referred to the European Council.

4.2

B. Toward (Almost) Direct EU Criminal Competence Over Serious Financial Crimes: The European Public Prosecutor’s Office

Art. 325 (4) TFEU enables the European Parliament and the Council, acting in accordance with ordinary legislative procedure, to enact specific measures with regard to preventing and combating fraud affecting the Union’s financial interests, an area where some pre-Lisbon legislation already exists. In particular, this area is of great importance to EU taxpayers who fund the EU budget, and thus legitimately expect effective measures against illegal activities targeting EU public money, for example, the EU’s agricultural and regional funds or development aid. EU Member States discover and report cross-border fraud worth thousands of millions of euros every year, including the loss of at least 50 billion in value added tax (VAT).66 However, national measures to fight large-scale transnational financial crimes remain limited and unable to effectively protect the EU budget. Likewise, neither the European Anti-Fraud Office (OLAF), the EU Judicial Cooperation Unit (EUROJUST), nor the EU Agency for Law Enforcement Cooperation (EUROPOL) are able to launch criminal investigations or prosecutions in Member States. In response, the Council of the European Union, acting under Art. 86 TFEU, adopted Regulation 2017/1939 establishing the European Public Prosecutor’s Office

64

Di Stasi and Festa (2023). Montaldi (2016). 66 Report from the Commission to the European Parliament and the Council (20 July 2017) Protection of the European Union’s Financial Interests – Fight Against Fraud Annual Report 2016, COM(2017) 383 final. 65

216

A. Oriolo

(EPPO)67 mandated to investigate and prosecute the perpetrators of fraud and other offences affecting ‘the Union’s financial interests’.68 Such interests include the management of budget appropriations, as well as all cases affecting its assets and those of Member States, such as fraudulent activities in relation to EU funds (i.e., the use or presentation of false, incorrect, or incomplete statements or documents leading to the misappropriation, misapplication, or wrongful retention of funds or assets from the Union budget or budgets managed by the Union, or on its behalf, collectively dubbed ‘PIF violations’).69 Fraud affecting the Union’s financial interests includes ‘serious’ offences against the common EU VAT system, such as those linked to the territory of two or more Member States and involving a total damage of at least ten million euros (i.e., the use or presentation of false, incorrect, or incomplete VAT-related statements or documents, or the non-disclosure of VAT-related information in violation of a specific obligation, having the effect of reducing the Union’s budget resources). However, the EU’s financial interests can also be damaged or threatened by money laundering, corruption, and misappropriation. The EPPO’s competence ratione materiae further covers ancillary offences deemed ‘inextricably linked’ to PIF violations, such as acts strictly aimed at ensuring the material or legal means to commit crimes affecting the financial interests of the Union, or to ensure the profit or product thereof.70 Additionally, the European Public Prosecutor may investigate and prosecute offences relating to organized crime71 (including membership in, or the organization and leadership of, a criminal organization) when the focus of such an illegal network is to commit any PIF violations. Lastly, EPPO competence includes other serious crimes ‘having a cross-border dimension’ and ‘affecting more than one Member State’,72 such as terrorism, counterfeiting means of payment, corruption, money laundering, organized crimes, and illicit trafficking in arms, drugs, and humans. The EPPO’s establishment brings about substantial changes to the protection of EU law and interests, further developing the EU area of justice and seeking to

67

Council Regulation 2017/1939 (12 October 2017) Implementing Enhanced Cooperation on the Establishment of the European Public Prosecutor’s Office, O.J. L 283/1 (hereinafter EPPO Regulation). See Oriolo (2018). 68 EPPO Regulation, Art. 22. 69 69 Directive 2017/1731/UE of the European Parliament and of the Council (5 July 2017) on the Fight Against Fraud to the Union’s Financial Interests by Means of Criminal Law, O.J. L 198/29 (hereinafter PIF Directive). 70 EPPO Regulation, Recital 49. 71 Council Framework Decision 2008/841/JHA (24 October 2008) on the fight Against Organised Crime, O.J. L 300/42, Art. 1: ‘[f]or the purposes of this Framework Decision: 1. “criminal organization” means a structured association, established over a period of time, of more than two persons acting in concert with a view to committing offences punishable by deprivation of liberty or a detention order of a maximum of at least 4 years or a more serious penalty, to obtain, directly or indirectly, a financial or other material benefit’. 72 See Art. 86(4) TFEU.

The Rule of Law, Transnational Crimes, and the Human Rights-Based. . .

217

establish a coherent, more efficient and effective system for investigating and prosecuting serious transnational crimes by combining European and national law enforcement efforts. In particular, the EPPO is the first EU judicial body exercising ‘direct powers’ vis-à-vis individuals responsible for financial cross-border offences.73 As for human rights (judicial) protection, the rights of defense provided for in the relevant Union law should apply to the activities of the EPPO. More precisely, any suspect or accused person in respect of whom the EPPO initiates an investigation should benefit from these rights, as well as from the rights foreseen in national law to request that experts be appointed, that witnesses be heard, or that evidence on behalf of the defense is otherwise produced by the EPPO.74 However, this new body is a ‘model of hybrid prosecution’ leading to serious rule of law deficits in terms of detail and legal certainty.75 More precisely, as for the applicable law issues, while the EPPO aims to protect EU interests, it does not operate in a single European legal area centered on common European standards, but in the distinct national jurisdictions of participating Member States mainly based on national law. Second, the extraordinary coercive powers bestowed to this EU agency are not counterbalanced by an adequate level of judicial protection at the EU or even national level. In cases where the EPPO can act in multiple jurisdictions, for example, it has considerable discretion to choose (and change) the forum on investigations and prosecutions,76 ‘switching’ between different legal orders, and creating substantial rule of law restrictions in terms of legal certainty, foreseeability, and the protection of fundamental rights of defense, i.e., access to a lawful judge.77 In addition, EPPO Regulation limits judicial review of the vast majority of EPPO acts, undermining ‘effective judicial protection and the role of the defense, by leaving key EPPO decisions without a sufficient level of judicial scrutiny and accountability’.78 In particular, the rule of law deficit arises from reliance on both national law and domestic courts for the judicial review of EPPO procedural acts intended to produce legal effects vis-à-vis third parties, and consequently, the very limited role of the ECJ

73

Mitsilegas and Giuffrida (2017). At the global level, a similar mechanism has been identified by some eminent scholars interpreting ‘serious’ financial crimes as crimes against human rights, thus placing them within the jurisdiction of the ICC; see Ziccardi Capaldo (2017). 74 EPPO Regulation, Recital 85. 75 Mitsilegas (2021). 76 EPPO Regulation, Art. 26(4). 77 Mitsilegas (2021), p. 248. 78 Ibid., p. 262.

218

A. Oriolo

in both its preliminary ruling jurisdiction under Art. 267 TFEU79 and annulment of EPPO acts under Art. 263 TFEU80 due to ‘the specific nature of the tasks and structure of the EPPO, which is different from that of all other bodies and agencies of the Union and requires special rules regarding judicial review’.81

5 The EU as a Global Actor in Countering Transnational Crimes: The Multi-Level Management of Cross-Border Security The Union and its Member States are determined to lead the fight against international crime.82 Indeed, tackling cross-border crimes became even more urgent during the COVID-19 pandemic, which criminals and organized crime groups the world over exploited, emphasizing the importance of coordination and cooperation, both in terms of prevention and justice. As the crime prevention and criminal justice challenges present a serious risk not only to the Union’s internal security, but also far beyond, law enforcement cooperation is needed to disrupt global criminal networks and transport routes. The EU approach to external security is intended to step up international cooperation, including through the activities of the relevant justice and home affairs agencies, taking an active role in exporting its acquis on transnational crime in the context of enlargement and accession, the development of the European Neighbourhood Policy (ENP),83 and full participation in international fora on the fight against transnational crimes. The EU is in fact a key actor in developing and implementing global standards as: leading partner of the United Nations Office on Drugs and Crime (UNODC), Member of the most relevant Treaties in the field, such as the UN Convention on Transnational Organized Crime and Corruption, and funding several initiatives to prevent and combat crime, including launching the Counter Terrorism Learning Platform in April 2020. As expressed in the position taken in the 2021 Kyoto Declaration adopted at the 14th UN Congress on Crime Prevention and Criminal Justice, the Union and

79 Under art 42 (2) of the EPPO Regulation, the cases to give preliminary rulings concerning: (a) the validity of procedural acts of the EPPO, in so far as such a question of validity is raised before any court or tribunal of a Member State directly on the basis of Union law; (b) the interpretation or the validity of provisions of Union law, including this Regulation; (c) the interpretation of Arts. 22 and 25 of this Regulation in relation to any conflict of competence between the EPPO and the competent national authorities. 80 EPPO Regulation, Art. 42(1). 81 EPPO Regulation, Recital 86. 82 Russo and Stambøl (2021). 83 Mitsilegas (2017), p. 72.

The Rule of Law, Transnational Crimes, and the Human Rights-Based. . .

219

Member States are fully committed to strengthening the international framework promoting the rule of law, crime prevention, and criminal justice.84 In this perspective, the position the EU adopted in Kyoto and the outcome thereof constitute a unique opportunity for the Union and its Member States to enhance their policies for improved collaboration on the international level to counter multinational offences, in compliance with the global securitization agenda, namely a multilateral treaty toward the globalization of criminal law, such as UNTOC, and the UN Convention Against Corruption.85 As anticipated, these global rules on transnational crimes create obligations for States and have a direct impact on individuals, posing significant challenges for the global rule of law and requiring equivalence in human rights (judicial) protection. As Mitsilegas remarked: ‘In the emergence if a complex, multi-level system of governance of transnational crime, it is increasingly the judiciary at the national and the European level which brings the challenges of rule of law and human rights protection to the fore’.86 Similar concerns in terms of individual protections are put forward by the EU sanctions regime, transposing or reinforcing UN restrictive measures or those autonomously imposed by the EU, targeting governments of third countries (such as economic and financial measures or arms embargoes), or non-State entities and natural persons (freezing assets and travel bans).87 These are critical issues that emerged in particular with regard to the new EU Global Human Rights Sanctions Regime (GHRSR) implemented by the EU Council Decision and Regulation framework adopted on 7 December 2020, allowing the EU to take restrictive measures against legal and natural persons involved in serious human rights violations, regardless of where in the world these offences occurred.88 84 See Council Decision (EU) 2021/430 (5 March 2021) on the position to be taken on behalf of the European Union on the Kyoto Declaration on Advancing Crime Prevention, Criminal Justice and the Rule of Law: towards the achievement of the 2030 Agenda for Sustainable Development at the 14th United Nations Congress on Crime Prevention and Criminal Justice to be held from 7 to 12 March 2021 in Kyoto, Japan, O.J. L 86/2. 85 United Nations Convention against Corruption, adopted by United Nations General Assembly Resolution 58/4 (31 October 2003), A/RES/58/4, entered into force on 14 December 2005. 86 Mitsilegas (2017), p. 80. 87 See EU Sanction Map at www.sanctionsmap.eu/#/main. Under Art. 215 TFEU, the EU adopts sanctions, either as the EU’s own measures (i.e. autonomous sanctions) and/or in order to implement United Nations Security Council resolutions, in cases where non–EU countries, natural or legal persons, groups or non–state entities do not respect international law or human rights, or pursue policies or actions that do not abide by the rule of law or democratic principles. See European Court of Justice (Grand Chamber), Judgment of 3 September 2008, joined cases C-402/05 P and C-415/05 P, Yassin Abdullah Kadi and Al Barakaat International Foundation v Council of the European Union and Commission of the European Communities. See also Heupel (2017), pp. 129–151. 88 Council Regulation (EU) 2020/1998 (7 December 2020) concerning restrictive measures against serious human rights violations and abuses, O.J. L 410I; Council Decision (CFSP) 2020/1999 (7 December 2020) concerning restrictive measures against serious human rights violations and abuses, O.J. L 410I.

220

A. Oriolo

More precisely, the GHRSR covers ‘core’ crimes (i.e., genocide, crimes against humanity), and other serious human rights violations or abuses (i.e., torture and other cruel, inhuman, or degrading treatment or punishment, slavery, extrajudicial, summary or arbitrary executions and killings, enforced disappearance of persons, arbitrary arrests or detentions), as well as widespread or systematic violations or abuses against internationally protected interests (i.e., human trafficking, abuses of human rights by migrant smugglers, sexual and gender-based violence, violations or abuses of freedom of peaceful assembly and of association, violations or abuses of freedom of opinion and expression, violations or abuses of freedom of religion or belief). Regrettably, the regime excludes corruption as a targetable offense,89 making it more difficult to seize kleptocracy funds, but the GHRSR remains an essential addition to the EU’s human rights and foreign policy toolbox, strengthening the EU’s role as a global human rights actor by allowing it to take restrictive measures against legal and natural persons involved in serious human rights violations anywhere in the world. Furthermore, the EU Commission recently submitted a proposal on adding the violation of EU restrictive measures to Euro-crimes laid down in Article 83(1) TFEU, requiring a uniform response both at the EU and global level.90 In terms of exporting EU acquis on transnational crimes in the context of its enlargement, and while the enforcement of EU sanctions is primarily the responsibility of EU Member States, the most effective sanctions are those that have extensive reach, comprising EU candidate countries, European Free Trade Association countries, and European Economic Area countries (e.g., Albania, Armenia, Bosnia and Herzegovina, Georgia, Iceland, Liechtenstein, Moldova, Montenegro, Norway, the Republic of North Macedonia, Serbia, Turkey, and Ukraine), which are systematically invited to align themselves to the EU’s restrictive measures.91 As such, support for the EU sanctions regime against most Euro-crimes is also a determining element of the accession process and the ENP. Of course, as one of the EU’s tools to safeguard its fundamental interests, security, and values, such as the rule of law, all sanctions adopted should be fully compliant with obligations under international law, including respect of human rights and fundamental freedoms, due process, and the right to effective remedy. 89

In any case, during her State of the Union speech in September 2022, EU Commission President Ursula von der Leyen announced that crimes of corruption would be included in the EU’s sanctions regime (see https://ec.europa.eu/commission/presscorner/detail/ov/SPEECH_22_5493). 90 European Commission, Proposal for a Council Decision (25 May 2022) on adding the violation of Union restrictive measures to the areas of crime laid down in Article 83(1) of the Treaty on the Functioning of the European Union, COM(2022) 247 final. The Commission is also proposing new reinforced rules on asset recovery and confiscation, which will also contribute to the implementation of EU restrictive measures. See European Commission, Proposal for a Directive of the European Parliament and of the Council (25 May 2022) on asset recovery and confiscation, COM(2022)245 final. 91 See e.g., Council Decision (CFSP) 2022/1909 (6 October 2022) amending Decision 2014/512/ CFSP concerning restrictive measures in view of Russia’s actions destabilizing the situation in Ukraine, O.J. L 259I.

The Rule of Law, Transnational Crimes, and the Human Rights-Based. . .

221

In this regard, the European Parliament stressed that the highest possible standards in terms of judicial review and proper scrutiny of the implementation of GHRSR are integral to ensuring its legitimacy and consistency with EU policies related to the rule of law and fundamental freedoms, hence calling for regular reviews of the listings, a clearly defined and transparent methodology and criteria for listing and de-listing the sanctioned individuals or entities, as well as appropriate legal procedures through which a listing can be challenged in order to guarantee a thorough judicial review.92

6 Conclusions: Judicial Balancing of the EU Counter-Crime Regime and the Rule of Law Standards Transnational crimes are emblematic of the link between internal and external security.93 The threats that organized crime groups operating offline and online pose require a coordinated and targeted response. Together with national authorities fighting organized crime on the frontline, global partnerships and Union-level actions as well as information and knowledge exchange among national authorities, are essential for effective cooperation, alongside a common criminal law framework and the requisite financial means.94 In the construction of internal and cross-border security against transnational crimes, EU law demands respect for Member States’ legal systems and traditions to the detriment of the uniform enforcement of EU values and principles, such as human rights, and consequently (substantial) rule of law. National disagreements on the appropriate level of protection of individual rights include which rights are to be protected as fundamental rights, how they are interpreted, and how they are balanced against other interests.95 The question as to whether the EU standard of fundamental rights in the area of criminal law provides adequate protection for individuals changed with the Lisbon Treaty and the elevation of the Charter of Fundamental Rights to primary EU law reflecting EU-wide attention to individual guarantees and the rule of law. Since then, the ECJ’s awareness of fundamental rights has grown considerably.

92

European Parliament Resolution (8 July 2021) on the EU Global Human Rights Sanctions Regime (EU Magnitsky Act), 2021/2563(RSP), para. 7. 93 Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions (14 April 2021) on the EU strategy to tackle organised crime 2021–2025, Com(2021) 170 Final, p. 2. See also Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions (24 July 2020) on the EU Security Union Strategy COM(2020) 605 final. 94 Ibid. 95 De Boer (2013).

222

A. Oriolo

Of course, the EU has a number of tools at its disposal to monitor and enforce the rule of law in all Member States, such as the ‘Annual Rule of Law Report’ launched by the EU Commission in September 2020 that collects data on the state of the rule of law focusing on four pillars (the justice system, the anti-corruption framework, media pluralism, and other institutional issues related to checks and balances),96 and the so-called ‘rule of law conditionality requirement’, i.e., rules establishing a mechanism that would allow stopping payments from the EU budget to Member States that do not respect the rule of law, adopted by the European Parliament and the Council on December 2020 to protect the EU budget and values.97 In addition, the European institutions’ rule of law toolbox includes infringement proceedings triggered by the Commission under Art. 258 TFEU against a Member State that fails to implement EU values and law, as well as potential financial sanctions determined by the ECJ. A further procedure under Art. 7 TEU aims to ensure that all EU countries respect the common values of the EU, including the rule of law, and allows the EU Council to make recommendations or decide by unanimity on sanctions against a Member State, including the suspension of membership rights.98 Nevertheless, as highlighted above, in certain circumstances, the rule of law principle is enforced by a decentralized system of counter-crime measures and prosecutions that may themselves violate the ‘good laws’ requirement, i.e., threaten the fair trial rights of those accused of cross-borders violations. In our view, the role of the EU judiciary in enhancing the rule of law is crucial when the EU counter-crime regime impacts human rights guarantees. In particular, without replacing national criminal codes, EU competence in criminal matters could standardize domestic criminal systems in compliance with the human rights-based approach through the ECJ ensuring the uniform interpretation of applicable EU law in all Member States. Similarly, reliance on national law and judicial review deficits, as stipulated in EPPO Regulation 2017/1939, could raise harmonization concerns and rule of law challenges, but the risk of compromising the effectiveness of the EPPO as an EU counter-crime mechanism could be prevented by overcoming the limits to ECJ jurisdiction by extending it to fully comply with rule of law standards.99

96

Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions (30 September 2020) 2020 Rule of Law Report. The Rule of Law Situation in the European Union, Com/2020/580 Final. 97 Regulation (EU, Euratom) 2020/2092 of the European Parliament and of the Council (16 December 2020) on a general regime of conditionality for the protection of the Union budget, O.J. L 433I. 98 This complex rule-of-law penalty process has currently been applied against Poland and Hungary mainly for violation of judicial independence (but also for EU institutions’ concerns addressing freedom of expression, corruption, rights of minorities, and the situation of migrants and refugees). See European Court of Justice (Grand Chamber), Judgment (5 November 2019), C-192/18, European Commission v Republic of Poland; European Court of Justice (First Chamber), Judgment (6 November 2012), C-286/12, European Commission v Hungary. 99 Mitsilegas (2021).

The Rule of Law, Transnational Crimes, and the Human Rights-Based. . .

223

Again, the parties targeted by counter-crime measures (i.e., within the sanctions regime framework) could directly seek legal redress by introducing an annulment action before the EU Court under Art. 263 TFEU, or indirectly via legal action against a national measure of enforcement of the EU counter-crime regime, leaving the domestic court to submit a reference to the ECJ for a preliminary ruling under Art. 267 TFEU.100 Finally, in balancing counter-crime measures with rule of law standards, the ECJ could benefit from ECtHR jurisprudence. In fact, in light of the equivalence clause enshrined in Art. 53 (2) of the Charter of Fundamental Rights of the European Union, the ECJ could import the ECtHR approach to national counter-crime measures (e.g., anti-corruption tools) to assess whether they are lawful, serve a legitimate public interest, and are proportionate.101 In our view, the ECJ case-law in this field would contribute to a uniform framework of definitions, redresses, and remedies concerning violations of individual guarantees linked to combating transnational offences, not only identifying and applying uniform human rights protection criteria to measures countering crossborder crimes, but also developing new standards for extending HRBA to the EU counter-crime regime and fostering a more comprehensive and aligned adoption of EU criminal rules with the requirement of ‘good’ laws in criminal matters.

References Albanese JJ (2005) Transnational crime. De Sitter Publications, Whitby Albanese JJ (2010) Transnational crime. Oxford University Press, Oxford Bassiouni MC (1999) The sources and content of international criminal law: a theoretical framework. In: Bassiouni M (ed) International criminal law, crimes 2. Brill, Leiden, pp 3–127 Bassiouni MC, Vetere E (1998) Towards understanding organized crime and its transnational manifestations. In: Bassiouni MC, Vetere E (eds) Organized crime: a compilation of UN documents 1975–1998. Transnational Publishers Inc, Ardsley–New York Bingham TH (2007) The rule of law. Cambridge Law J 66(1):67–85 Bingham TH (2011) The rule of law. Penguin Books, London Boister N (2002) Human rights protections in the suppression conventions. Hum Rights Law Rev 2(2):199–227 Boister N (2003) Transnational criminal law? Eur J Int Law 14(5):953–976

100

Hirsbrunner and Tsakanakis (2021). In the Melloni judgment for example, the Court of Justice puts an end to the so-called Taricco saga rejecting the interpretation of Art. 53 of the Charter of Fundamental Rights of the European Union as giving the Member States the power to apply a higher rights standard when a situation falls within the scope of EU law and where this would contravene the ‘primacy, unity and effectiveness of Union law’. See European Court of Justice (Grand Chamber), Judgment (26 February 2013), C-399/11, Stefano Melloni v Ministerio Fiscal, para. 60. 101 Oriolo (2021).

224

A. Oriolo

Brettschneider C (2011) A substantive conception of the rule of law: nonarbitrary treatment and the limits of procedure. In: Fleming J (ed) Getting to the rule of law. NYU Press, New York, pp 52–63 Carothers T (2003) Promoting the rule of law abroad: the problem of knowledge. Carnegie Endowment for International Peace Corell H (2004) A challenge to the United Nations and the world: developing the rule of law. Temple Int Comp Law J 18(2):391–419 Costa Ramos V, Luchtman M, Munteanu G (2020) Improving defence rights including available remedies in and (or as a consequence of) cross–border criminal proceedings. Eucrim 3:230–248 Craig P (1997) Formal and substantive conceptions of the rule of law: an analytical framework. Public Law, London Csonka P, Landwehr O (2019) 10 years after Lisbon – how ‘Lisbonised’ is the substantive criminal law in the EU? Eucrim 4:261–267 De Boer N (2013) Addressing rights divergences under the charter: Melloni. Common Mark Law Rev 50:1083–1104 De Smith SA, Woolf H, Jowell LJ (1995) De Smith's judicial review of administrative action, 5th edn. Sweet & Maxwell Ltd, London Di Stasi A, Festa A (2023) Breaches of the rule of law in the EU: what implications for the principle of mutual trust in the area of freedom, security and justice? In: Russo T, Oriolo A, Dalia G (eds) Solidarity and rule of law. The new dimension of EU security. Springer Dicey AV (1885) Lectures introductory to the study of the law of the constitution. Macmillan and Co, London Donini M (2013) Il principio di offensività. Dalla penalistica italiana ai programmi europei. Diritto Penale Contemporaneo 4:4–43 Dworkin RM (1985) A matter of principle. HUP, Cambridge Fallon RH (1997) ‘The rule of law’ as a concept in constitutional discourse. Columbia Law Rev 97(1):1–54 Fijnaut C (2000) Transnational crime and the role of the United Nations. Eur J Crime Crim Law Crim Just 8(2):119–127 Finnis J (1980) Natural law and natural rights. Oxford University Press, Oxford Foffani L (2011) Verso un’armonizzazione europea del diritto penale dell’economia: la genesi di nuovi beni giuridici economici di rango comunitario, il ravvicinamento dei precetti e delle sanzioni. In: Grasso G, Picotti L, Sicurella R (eds) L’evoluzione del diritto penale nei settori di interesse europeo alla luce del Trattato di Lisbona, 1st edn. Giuffrè, Milan, pp 583–610 Friedrichs D (2007) Transnational crime and global criminology: definitional, typological, and contextual conundrums. Soc Just 34(2):4–18 Fuller LL (ed) (1963) The morality of law. YUP, London Hayek FA (1944) The road to serfdom. George Routledge & Sons, London Hecker B (2015) Europäisches Strafrecht, 5th edn. Springer–Lehrbuch, Berlin–Heidelberg Hemsley R (2015) Human rights & corruption states’ human rights obligation to fight corruption. J Transnatl Leg Iss 2(1):1–24 Heupel M (2017) EU sanctions policy and the protection of due process rights: judicial lawmaking by the court of justice of the EU, in protecting the individual from international authority. In: Heupel M, Zürn M (eds) Protecting the individual from international authority: human rights in international organizations. Cambridge University Press, Cambridge, pp 129–151 Hirsbrunner S, Tsakanakis S (2021) ‘Déjà vu’ in EU sanctions policy: a comment on two EU general court judgments in the Yanukovych Case. Steptoe. Economic Sanctions, EU Sanctions. https://www.steptoeinternationalcomplianceblog.com/2021/09/deja-vu-in-eu-sanctions-policya-comment-on-two-eu-general-court-judgments-in-the-yanukovych-case/ Jennings W (ed) (1952) The law and the constitution. UoL Press, London Kaiafa M (2011) The importance of core principles of substantive criminal law for a European criminal policy respecting fundamental rights and the rule of law. Eur Crim Law Rev 1:7–34

The Rule of Law, Transnational Crimes, and the Human Rights-Based. . .

225

Manacorda S (2014) Diritto penale europeo. In: Diritto on line Treccani. www.treccani.it/ enciclopedia/diritto–penale–europeo_%28Diritto–on–line%29/ Merkle O (2018) Mainstreaming gender and human rights in anti-corruption programming. U4 Anti-Corruption Resource Center, Chr. Michelsen Institute, Bergen Mickonytė A (2019) Effects of the Rule-of-Law Crisis in the EU: Towards Centralization of the EU System of Judicial Protection Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 79(1):815–839 Mitsilegas V (2007) The transformation of criminal law in the area of freedom, security and justice. Yearb Eur Law 26 Mitsilegas V (2016) Theorising internal security from the perspective of the rule of law. In: Bossong R, Rhinard M (eds) Theorising European internal security. OUP, Oxford Mitsilegas V (2017) Transnational Criminal Law and the Global Rule of Law. In: Ziccardi Capaldo G (ed) Global Community Yearbook of International Law and Jurisprudence Mitsilegas V (2021) European prosecution between cooperation and integration: the European public prosecutor’s office and the rule of law. New J Eur Crim Law 28(2):245–264 Mitsilegas V, Giuffrida F (2017) Raising the bar? Thoughts on the establishment of the European public prosecutor’s office. CEPS 39:1–22 Montaldi S (2016) On a collision course! Mutual recognition, mutual trust and the protection of fundamental rights in the recent case–law of the court of justice. Eur Pap 1(3):965–996 Mueller W (2001) Transnational crime: definitions and concepts. In: Williams P, Vlassis D (eds) Combating transnational crime. Routledge, London Nadelmann EA (1990) Global prohibition regimes: the evolution of norms in international society. Int Org 44(4):479–529 Oriolo A (2018) The European public prosecutor’s office (EPPO): a revolutionary step in fighting serious transnational crimes. ASIL Insights 22(4) Oriolo A (2021) Corruzione e diritti umani nella giurisprudenza di Strasburgo. In: Russo T, Oriolo A (eds) La lotta alla corruzione nella legalità reticolare. Il sistema penale multilivello, FrancoAngeli, Milan, pp. 65–89 Peerenboom R (2003) Asian discourses of rule of law: theories and implementation of rule of law in twelve Asian countries, France and the US. Routledge, London Peters A (2018) Corruption as a violation of international human rights. Eur J Int Law 29(4): 1251–1287 Ponti C (2010) Crimini internazionali e diritto internazionale. Giuffrè, Milan Rawls J (1972) A theory of justice. Clarendon Press, Oxford Raz J (1979) The authority of law: essays on law and morality, 1st edn. Oxford University Press, Oxford Reichel PL, Albanese JJ (eds) (2014) Handbook of transnational crime and justice. SAGE, Thousand Oaks Russo A, Stambøl E (2021) The external dimension of the EU’s fight against transnational crime: transferring political rationalities of crime control. Rev Int Stud:1–20 Satzger H (2018) Art 82 AEUV. In: Streinz (ed) EUV/AEUV, 3rd edn. C.H. Beck, Munich Satzger H (2019) The harmonisation of criminal sanctions in the European Union – a new approach. Eucrim 2:115–120 Schroeder W (2020) Limits to European harmonisation of criminal law. Eucrim 2:144–148 Shklar JN (1987) Political theory and the rule of law. In: Hutchinson A, Monahan P (eds) The rule of law: ideal or ideology. Sage Publications Inc., Toronto, pp 1–16 Spijkers O (2011) The United Nations, the evolution of global values and international law. Intersentia, Cambridge Tamanaha BZ (2004) On the rule of law. History, politics, theory. Cambridge University Press, Cambridge

226

A. Oriolo

Tamanaha BZ (2007) A concise guide to the rule of law. St John’s University Legal Studies Research Paper Series 7 Tamanaha BZ (2012) The history and elements of rule of law. Singap J Leg Stud 1:232–247 Waldron JE (2011) The rule of law and the importance of procedure. In: Fleming J (ed) Getting to the rule of law. Nomos–NYU Press, New York–London, pp 3–31 Ziccardi Capaldo G (2017) The global fight against impunity and the European Court of Justice: a new approach to tax fraud as a crime against human rights. European Law Blog (8 December)

Anna Oriolo, Ph.D., is Associate Professor of International Law at the University of Salerno (Italy) where she also teaches EU Law, International & European Criminal Law, and Diplomatic and Consular Law. Professor Oriolo is also Founder and Director of the International and European Criminal Law Observatory on Cultural Issues, Human Rights, and Security (IECLO), based at the same University. She was also Lecturer of International Law & European Union Law at the University of Cagliari (2014), at Université Lumiere Lyon 2 (2016–2019), at the Specialization School for Legal Professions, University of Salerno, (2017–2022), at the Jean Monnet Summer School on Climate Change, Health, and the Environment (2018), and the Jean Monnet Module on EU-Western Balkans Cooperation on Justice and Home Affair (EUWEB), in charge of the Sub-Module on Transnational Crimes and Human Rights (2019–2022), based at the University of Salerno. With regard to her editorial experience, she served as Managing Editor of the Global Community Yearbook of International Law and Jurisprudence (Oxford University Press) and is currently Managing Editor of the EUWEB Legal Essays. Global & International Perspectives (Editoriale Scientifica), invited peer reviewer for International Criminal Law Review (Brill), and member of the Editorial Board of the Journal of International Criminal Law (JICL), Iura and Legal Systems and the Referees Committee of Freedom, Security & Justice: European Legal Studies. Professor Oriolo is Scientific Director of several research programs funded by the University of Salerno (2006–2022), and her works (in Italian, English, and French) cover a wide range of subjects in the field of international law and EU law, i.e. international and European criminal law, transnational crimes, human rights and fundamental freedoms, cross-fertilization, cybersecurity, environmental protection and water resources, global law and policies, cultural heritage, ethics in international and EU Law, corporate social responsibility, and post-conflict justice.

Environmental Solidarity and the Rule of Law in the EU System: Some Explanatory Reflections on Climate Justice Case-Law Emanuele Vannata

Abstract Recent years have seen an increasing focus on climate justice, which looks at the climate crisis through a human rights lens in the belief that by working together we can create a better future for this generation and those to come. Indeed, addressing climate change raises issues of justice and equity, both between and within nations and generations in line with the solidaristic requirements of environmental law as both a relation among individuals belonging to a community of interests, and a mutual support within a group. In this perspective, moving from the environmental solidarity at the international and EU level, this chapter focus on the rule of law as legal foundation for the judicial protection of individual and collective environmental rights in order to emphasize the role of national and international courts in the progressive affirmation of a human rights-based approach (HRBA) in environmental matters and the construction of a more ethical ecological governance.

1 Introduction Environmental protection is a core issue in the international community’s agenda: the world-wide ecosystem is highly threatened by global warming, biodiversity loss, and climate change, constituting ‘a climate and environmental emergency’,1 as well as a serious risk to the quality of the environment, public health, the economy, and as such, one of the most significant challenges for humanity. The dire consequences of climate change pose a notable challenge to international legal order governing the environment—as well as to national and international 1 European Parliament Resolution (28 November 2019) on the climate and environmental emergency, 2019/2930(RSP); Report of Special Rapporteur on the Issue of Human Rights Obligations Relating to the Enjoyment of a Safe, Clean, Healthy and Sustainable Environment, (1 February 2016) A/HRC/31/52, para. 68.

E. Vannata (✉) Department of Legal Sciences (School of Law), University of Salerno, Fisciano, Italy e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 T. Russo et al. (eds.), Solidarity and Rule of Law, European Union and its Neighbours in a Globalized World 9, https://doi.org/10.1007/978-3-031-29227-9_12

227

228

E. Vannata

courts—facing an uphill battle in effectively countering the main environmental challenges of our time.2 Recent years have seen an increasing focus on climate justice, which looks at the climate crisis through a human rights lens in the belief that by working together we can create a better future for this generation and those to come. Indeed, addressing climate change raises issues of justice and equity, both between and within nations and generations, in line with the solidaristic requirements of environmental law as both a relation among individuals belonging to a community of interests, and a mutual support within a group. In this perspective, moving from the environmental solidarity at the international and European Union (EU) level, this chapter focus on the rule of law as legal foundation for the judicial protection of individual and collective environmental rights, in order to emphasize the role of national and international courts in the progressive affirmation of a human rights-based approach (HRBA) in environmental matters3 and the construction of a more ethical ecological governance.

2 Solidarity as a Valuable Element of Environmental Law? As anticipated, the definition of solidarity in contemporary dictionaries speaks of a relation among individuals belonging to a community of interests, but also mutual support within a group.4 In more strictly legal terms, even in the absence of a universally recognized classification, an interesting definition of the principle of solidarity in the international legal order can be traced to UN General Assembly Resolution 56/151 where solidarity is defined as ‘a fundamental value, by virtue of which global challenges must be managed in a way that distributes costs and burdens fairly, in accordance with basic principles of equity and social justice, and ensures that those who suffer or [who] benefit the least receive help from those who benefit the most’.5 According to some scholars, the key elements of the concept are: (i) the presence of a system of common goals and values shared between all the members of a given interdependent community, such as the international community; (ii) a form of help given by some actors to other actors without expectations of reciprocity, not necessarily limited to the context of a State-to-State (horizontal) relationship, but also as help provided by one or more States to the population of the State (vertical 2

Kreilhuber and Kariuki (2020), p. 593. The analysis aims to export in the environmental matters the approach adopted by some scholars in transnational criminal law and concerning the role of the EU judiciary in enhancing the rule of law especially in its substantial dimension, i.e., the adequate protection of human rights and the State’s compliance with its international obligations to respect, protect, and fulfil individual guarantees. See Oriolo (2023). 4 See https://www.oed.com. 5 United Nations General Assembly Resolution 56/151 (19 December 2001) Promotion of a democratic and equitable international order, A/RES 56/151, para. 3(f). 3

Environmental Solidarity and the Rule of Law in the EU System:. . .

229

relationship); (iii) a clearly identifiable relation between providers and beneficiaries.6 While cooperation, mutual assistance, and solidarity do not entirely overlap, the latter seems to operate as a relevant value that permeates the international legal system in environmental matters. After all, it’s far the memory of the egocentric nature of international environmental law, concerned only with preserving the State territory from environmental damage caused by another member of the international community, quickly shifted towards ‘an altruistic approach [. . .] based on a cooperative will of all the parties in achieving new common objectives to preserve the environment’.7 This perspective has its foundations in many international environmental instruments. Consider, for example, Principle 7 of the Rio Declaration on Environment and Development of 1992, affirming that ‘States shall cooperate in a spirit of global partnership to conserve, protect and restore the health and integrity of the Earth’s ecosystem’.8 The solidarity perspective also underlies the cardinal principle of international environmental law concerning common but differentiated responsibilities— enshrined in Principle 7 of the Rio Declaration but also in the 1992 Framework Convention on Climate Change (UNFCCC) (Preamble and Arts. 3–4) as much as in the 2015 Paris Agreement (Preamble and Arts. 2–4)—according to which all countries are responsible for the development of the global society, although each with a different set of capabilities that they can contribute to this project. Indeed, an important step forward in the evolution of environmental protection was made at the 1992 United Nations Conference on Environment and Development (UNCED), namely ‘sustainable development’, a true achievement of the UNCED. With the 1987 Brundtland Report and the Rio Conference, the multidimensional nature of this concept (environmental, economic, and social) embodied the new (cooperative) perspective according to which State action for progress needs to take into account the repercussions on the whole global community, the common ecosystem, and above all, the interests of future generations. In fact, sustainable development is defined by scholars as ‘[the] development that meets the needs of the present without compromising the ability of future generations to meet their own needs’.9 This expresses a ‘solidaristic’ view where ‘the action of the single state determines collective benefits not only with regard to the protection of the environment and the enhancement of a new, more sustainable economic system, but also through a solidaristic dimension that enhances the interest towards the future generations’.10

6

Campanelli (2011). Gaudiosi (2021), p. 8. 8 Rio Declaration on Environment and Development, 14 June 1992, A/CONF.151/26/Rev.l (Vol. I). 9 Report of the United Nations World Commission on Environment and Development (4 August 1987), Chapter 2, para. 1. 10 Gaudiosi (2021), p. 9. See Bellinkx et al. (2021). 7

230

E. Vannata

3 An EU Understanding of Environmental Solidarity The EU does not escape from this reciprocity-based approach mindful of the ideas of solidarity and peaceful cooperation underpinning the construction of European integration since its first breath.11 In the EU system, solidarity is undoubtedly a founding value enshrined in Art. 2 of the Treaty on European Union (TEU), tangible in many provisions in the EU Treaties as well as in the Charter of Fundamental Rights of the EU (CFREU)— whose post-Lisbon legal construction highlights at least a three-dimensional understanding that includes horizontal solidarity (attaining inter-state relations), a vertical element (taking into account the role of individuals), and also an inter-generational dimension (in the perspective to reflect the responsibility towards future generations). In general terms, the EU and its institutions make prolific use of the term ‘solidarity’, despite that its real meaning is not entirely clear. In fact, while not defined in EU legislation, the academic literature12 is really prolific as well as the European Court of Justice (ECJ) case-law.13 Regardless of this, as for the environmental solidarity, explicit references can be found in EU legislation reflecting the shared or common interest in environmental protection and the need for transnational cooperation. In air pollution and environmental disaster regimes, solidarity is ‘the basis for the redistribution of financial resources, acknowledging economic differences and the need to support disadvantaged member states’.14 In the fight against ‘the existential threat posed by climate change’,15 the EU is committed to stepping up efforts to tackle climate change and delivering on the implementation of the 2015 Paris Agreement guided by its principles and based on the best available scientific knowledge in the context of the long-term temperature goal of the Agreement. The well-known ‘European Green Deal’ set out by the

11

Sangiovanni (2013). See also Menendez (2003), p. 374 and Barnard (2005). See, Biondi et al. (2018), Grimmel and My Giang (2017), Piernas et al. (2017), and Sangiovanni (2013). 13 See, ex multis, European Court of Justice, Judgment (17 February 1993), C-l59/91 and C-l60/91, Christian Poucet and Pistre v Assurances Générales de France (AGF) and Caisse Mutuelle Régionale du Languedoc-Roussillon (Camulrac) and Caisse Autonome Nationale de Compensation de l'Assurance Vieillesse des Artisans (Cancava); European Court of Justice, Judgment (16 November 1995), C-244/94, Fédération Française des Sociétés d'Assurance, Société Paternelle-Vie, Union des Assurances de Paris-Vie and Caisse d'Assurance et de Prévoyance Mutuelle des Agriculteurs v Ministère de l'Agriculture et de la Pêche. 14 Domurath (2012), p. 464. 15 European Parliament and Council Regulation 2021/1119 (30 June 2021) establishing the framework for achieving climate neutrality and amending Regulations (EC), No 401/2009 and (EU) 2018/1999 (‘European Climate Law’), O.J. L 243. 12

Environmental Solidarity and the Rule of Law in the EU System:. . .

231

Commission in its Communication of 11 December 201916 aims to build a new growth strategy able to transform the EU into a fair and prosperous society, with a modern, resource-efficient, and competitive economy, without net emissions of greenhouse gases in 2050, and where economic growth is decoupled from resource use. The Green Deal also aims to protect, conserve, and enhance the Union’s natural capital, and protect the health and wellbeing of citizens from environment-related risks and impacts. Even if the cited Communication does not mention the word ‘solidarity’, there is no doubt that in taking the relevant measures at the Union and national level to achieve the climate-neutrality objective, Member States and EU institutions should, inter alia, take into account fairness and solidarity between and within Member States, ‘in light of their economic capability, national circumstances, such as the specificities of islands, and the need for convergence over time’.17 In fact, in the new EU Climate Law establishing the climate-neutrality objective in Art. 2 of the Regulation 2021/1119, the EU legislator is clear in linking the goal to the importance of promoting both fairness and solidarity among Member States as well as costeffectiveness in achieving this objective. Despite these considerations concerning inter-state relations, key to understanding the correlation between solidarity and the environment in the EU order is the vertical element. The just transition towards environmentally sustainable economies and societies finds its most concrete application in a bottom-up approach that recognizes the essential role of the participation of individuals in policymaking to combat climate change no less than in reclaiming space in environmental justice. Fairness and solidarity are defining principles of the European Green Deal, implying solid policy actions to support people and their active participation as an essential requirement of a successful green transition.18 For what concerns the inter-generational dimension, some interesting elements emerge as a third understanding of solidarity according to Art. 3 TEU, para. 3 that finds expression in the concept of sustainable development, based on distributive justice and inter-generational equity. In the perspective of maintaining the environment in a way that future generations can fulfill their own needs, in the EU legal order, it implies the so-called integration principle (Art. 11 of the Treaty on the Functioning of the European Union (TFEU)) that anchors environmental protection requirements to the definition and implementation of the Union’s policies and activities in which the former must necessarily be integrated, particularly with a view to promoting sustainable development.

16 Communication from the Commission to the European Parliament, the European Council, the Council, the European Economic and Social Committee and the Committee of the Regions (11 December 2019) The European Green Deal, COM/2019/640 final. See Carta (2020). 17 Regulation 2021/1119, recital 34. 18 See European Commission Proposal for a Council Recommendation (14 December 2021) on ensuring a fair transition towards climate neutrality, COM(2021) 801 final.

232

E. Vannata

After all, EU environmental policy was conceived from the outset as a means of improving the living conditions of European citizens and the harmonious development of economic activities to ensure the establishment and proper functioning of the common internal market.19 If solidarity among individuals is more developed due to the link with internal market socio-economic law and the ECJ rights-based approach, solidarity among Member States appears to be underdeveloped due to the discrepancy in the approach of States to solidary obligations to cooperate.20

4 Environmental Rule of Law as Legal Foundation of Achieving Solidarity in Climate Matters In view of the growing environmental complexities, the role of democracy, good governance, and the rule of law at the national and international level play an increasingly important role in environmental protection and sustainable development, and hence in fostering sustained and inclusive economic growth and social development. The rule of law is a fundamental legal concept expressing a ‘principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards’.21 In the EU system, it is one of the founding principles of the common constitutional traditions of all EU Member States, and as such, a cornerstone of the Union recalled in Art. 2 TEU and in the Preambles to the Treaty and CFREU. Here too, the precise content of the principles and rules arising from the rule of law vary at the national level depending on the constitutional order of each Member State. However, according to ECJ and European Court of Human Rights (ECtHR) case-law, as well as documents drawn up by the Council of Europe,22 a non-exhaustive list of these principles can be deduced, and as such, defining the substantive core of the rule of law. Indeed, its requirements are ensuring adherence to the principle of legality, which implies a transparent, accountable, democratic, and pluralistic process for enacting laws, legal certainty, the prohibition of arbitrariness of executive powers, the independence and impartiality of courts, effective judicial review including respect for fundamental rights and equality before the law.

19

Mastroianni (2011). Domurath (2012), p. 466. 21 UN Secretary-General The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies (23 August 2004), U.N. Doc. S/2004/616, p. 4. 22 See Venice Commission (25–26 March 2011) 2011 Report on the rule of law study No. 512/2009, CDL–AD(2011)003rev. 20

Environmental Solidarity and the Rule of Law in the EU System:. . .

233

Translated to the environmental domain, the rule of law implies widely respected and enforced laws to allow people to enjoy the benefits of environmental protection.23 The Rio +20 Declaration on Justice, Governance and Law for Environmental Sustainability expressed the concern of all high-ranking representatives of the judicial, legal, and auditing professions about the continuing and unprecedented degradation of the natural environment, stressing that ‘environmental sustainability can only be achieved in the context of fair, effective and transparent national governance arrangements and rule of law’.24 At the same time, they outlined the precepts of the environmental rule of law, predicated on, inter alia, public participation in decision-making, access to justice and information and accessible, fair, impartial, timely and responsive dispute resolution mechanisms. As the International Union for Conservation of Nature World Declaration on the Environmental Rule of Law states, ‘without the environmental rule of law and the enforcement of legal rights and obligations, environmental governance, conservation, and protection may be arbitrary, subjective, and unpredictable’.25 In this perspective, the environmental rule of law should serve as the legal foundation for promoting environmental ethics and achieving environmental justice, global ecological integrity, and a sustainable future for all, including for future generations, a link that binds critical environmental needs with the essential elements of the rule of law, providing the basis for reforming environmental governance.26 In February 2013, the United Nations Environment Programme Governing Council adopted Decision 27/927 to support national governments in developing and implementing the environmental rule of law to mutually support governance features, including information disclosure, public participation, implementable and enforceable laws, implementation and accountability mechanisms including coordination of roles, environmental auditing, and criminal, civil and administrative enforcement. In particular, as Kreilhuber and Kariuki noted, the Decision highlights the fact that the law, coupled with strong implementing institutions, is essential for societies to respond to increasing environmental pressure in a way that respects the fundamental rights and principles of fairness, including for future generations.28 In fact, according to these authors, one of the key characteristics of the environmental rule of law is intergenerational equity as the foundation of sustainable development, strongly linked to the solidary rationale of the concept of sustainable

23

Kreilhuber and Kariuki (2020). Rio+20 Declaration on Justice, Governance and Law for Environmental Sustainability (20 June 2012), para. II. 25 International Union for Conservation of Nature World Declaration on the Environmental Rule of Law, p. 2. 26 Ibid. 27 Governing Council of the United Nations Environment Programme Decision 27/9 (22 February 2013) advancing justice, governance and law for environmental sustainability. 28 Kreilhuber and Kariuki (2020). 24

234

E. Vannata

development.29 The principle of intergenerational equity states that every generation shares the Earth with members of the present generation and other generations, past and future, articulating a concept of fairness among generations in the use and conservation of the environment and its natural resources.30 Thus concern for the needs of future generations falls into the category of what is sometimes termed intergenerational solidarity, that is widely understood as ‘social cohesion between generations’,31 where humanity as a whole forms an intergenerational community in which all members (generations) respect and care for each other, fulfilling the common goal of the survival of humankind. Even if still controversial as to whether the principle of intergenerational equity also conveys rights, as Brown Weiss stressed, intergenerational rights could be viewed as part of international human rights law arguably encompassed in the specific rights guaranteed in particular instruments in the absence of explicit references to the rights of future generations in international human rights agreements.32 Recognizing future generations as human rights holders would be a step towards sustainability, in a way that the rights of future generations become effective. Hence, the enforcement of these rights ‘must be founded on the elements of environmental rule of law’.33 In the EU system, intergenerational equity can be understood as policy principles in line with sustainable development—as a goal to be attained—together with, inter alia, the promotion and protection of fundamental rights and the involvement of citizens.34 After all, despite its inclusion in treaties (Art. 3, para. 3 TEU; Art. 37 CFREU), implemented in the so-called integration principle, the EU concept of sustainable development indicates, in the practical outcome of the principle, ‘its operational nature in the form of a goal to achieve, entered into the general treaty goals of the European Union in relation to Europe and Earth (. . .), among many other goals of an economic nature’.35 In essence, EU environmental law and policy reflect a general notion of concern for the interests of future generations that lacks specificity as well as normative power.36

29

Ibid., p. 595. See also Cordonier Segger (2008), p. 168 and French (2005) p. 29. See Brown Weiss (2021). 31 See Katz et al. (2005), Roberts et al. (2009) and Bengtson et al. (1976). 32 Ibid. 33 Kreilhuber and Kariuki (2020), p. 595. 34 See 2005 EU Guiding Principles for Sustainable Development. See also KenigWitkowska (2017). 35 Ibid., p. 65. 36 Collins (2007). 30

Environmental Solidarity and the Rule of Law in the EU System:. . .

235

5 EU Climate Justice: No Standing, No Party. Is There Light Beyond the Shadow? The HRBA is progressively affirming, bringing environmental protection within the broader human rights framework, resulting in the ECtHR’s findings on environmental dimensions of the right to life, health, privacy, food, housing, property, and non-discrimination, contributing decisively—at least in the European regional context—to the ‘right to the environment’, an evolutionary and interpretative approach known as the ‘greening of human rights’.37 While it is clear that the effects of climate change hinder the full enjoyment of human rights—civil and political rights (e.g., right to life and property), economic, social, and cultural rights (e.g., adequate standard of living, the highest possible standard of health), third-generation rights (e.g., to a healthy environment)—this path is by no means without difficulties (e.g., the ‘territoriality’ of human rights, the existence (or not?) of ‘collective obligations’, the excessive expansion of new rights, the identification of fictitious holders of rights), and procedural (e.g., proof of the quality of victim).38 Recently, on 29 July 2022, the UN General Assembly (UNGA) passed a resolution39 recognizing the right to a clean, healthy, and sustainable environment as a human right, affirming also that it is ‘related to other rights and existing international law’,40 and calling upon States, international organizations, businesses, and other stakeholders to ‘scale up efforts’ to ensure a clean, healthy, and sustainable environment for all.41 Only one year before, with the Resolution 48/13,42 the UN Human Rights Council (UNHRC)—stressing that environmental degradation, climate change and unsustainable development constitute some of the most pressing and serious threats to the ability of present and future generations to enjoy human rights, including the right to life—recognized that ‘the exercise of human rights, including the rights to seek, receive and impart information, to participate effectively in the conduct of government and public affairs and in environmental decision-making and to an

37

Sadeleer (2012) and Boyle (2006). Nollkaemper (2019) and Posner (2006). 39 United Nations General Assembly Resolution 76/L.75 (26 July 2022) The human right to a clean, healthy and sustainable environment, A/76/L.75. 40 Ibid., point 2. 41 It is interesting to note that – despite a recorded vote of 161 in favor and zero against – eight Member States, among which China and the Russian Federation, abstained. 42 UN Human Rights Council (UNHRC) Resolution 48/13 (8 October 2021) The human right to a clean, healthy and sustainable environment, A/HRC/RES/48/13. Also in that occasion—which represented the first formal recognition at the global level of the right to a clean, healthy, and sustainable environment—China and the Russian Federation, with the relevant addition of India, abstained. 38

236

E. Vannata

effective remedy, is vital to the protection of a clean, healthy and sustainable environment’.43 As noted, an important element of the international and European environmental rule of law is public participation in decision-making, and access to justice and information. Although the ECJ has addressed (limited) climate change issues, difficulties remain in effectively accessing justice in the EU in environmental matters, especially with regard to natural or legal persons asserting their legal standing before the Court. A global trend in climate litigation is that applicants are no longer only environmental associations operating within a State or recognized by the State against which they intend to act, but also individuals denouncing direct and concrete offenses to their lives and their extension. The Luxembourg Court has already dismissed several cases in the field of climate change—where the applicants strive for better EU legislation regarding climate change complaining also the violation of human rights—through the severe application of the locus standi pursuant to Art. 263, para. 4 TFEU,44 as interpreted seamlessly since the Plaumann judgment.45 The Court of Justice therefore seems to take the position of clearly rejecting a revision of the Plaumann test, preventing individuals from seeking reviews of the performance of States and institutions on acts or measures adopted, even when human rights are violated. While the position of the ECJ is partially justified by a vision of the EU as a ‘complete system of legal remedies and procedures’46 based on the combination of Arts. 263 and 267 TFEU, and hence the (decisive) role of national courts, relegating protection to exclusive recourse to a potential reference for a preliminary ruling (while the same could also apply to an infringement procedure ex 258 TFEU) could take the form of the right of access to justice that is only theoretical or illusory, rather than practical and effective.47 This approach would seem to be confirmed in the position taken with regard to the EU commitments made with the ratification of the Convention on Access to Information, Citizen

43

Ibid. See European Court of Justice (Fourth Chamber), Order (6 May 2020), T-141/19, Peter Sabo and Others v European Parliament and Council of the European Union; European Court of Justice (Second Chamber), Order (8 May 2019), T-330/18, Armando Carvalho and Others v European Parliament and Council of the European Union. 45 European Court of Justice (Chamber), Judgment (15 July 1963), 25/62, Plaumann & Co. v Commission of the European Economic Community. 46 European Court of Justice (Sixth Chamber), Judgment (25 March 2021), 565/19 P, Armando Carvalho and Others v European Parliament and Council of the European Union, par. 68; European Court of Justice (Eighth Chamber), Order (14 January 2021), C-297/20 P, Peter Sabo and Others v European Parliament and Council of the European Union, par. 17. 47 See Opinion of Mr Advocate General Jacobs (21 March 2002) on European Court of Justice (Third Chamber), Judgement (25 July 2002), C-50/00 P, Unión de Pequeños Agricultores v Council of the European Union. 44

Environmental Solidarity and the Rule of Law in the EU System:. . .

237

Participation and Access to Justice in Environmental Matters of 199848 by the Aarhus Convention Compliance Committee (ACCC) established to guarantee the effectiveness of the rights recognized therein. In fact, the 2011 and 2017 reports49 would appear to establish a violation of the Aarhus Convention by the EU, since it would not allow standing in cases of an environmental nature, insofar as neither the Aarhus Regulation nor ECJ case-law implement or conform with the obligations of the Convention (in particular, with reference to Art. 9, paras 3 and 4). On the other side, at the national level, several courts have been shown no reticence in recognizing a sufficient legal interest to bring a case, for example, on the grounds of the ‘protection of a sustainable society’50 or ‘intergenerational responsibility’,51 admitting the plaintiffs—in the latter case—on behalf of future generations, also thanks to the integration of intergenerational values in a constitutional dimension.52 A significant number of cases from different countries have found an intergenerational aspect of constitutional rights, assuming that future generations are protected by rights, that the principle of intergenerational equity

48

Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, done at Aarhus, Denmark, signed in 1998 and entered into force in 2001. The Convention was approved by the European Union by Council Decision 2005/370/EC (17 February 2005) on the conclusion, on behalf of the European Community, of the Convention on access to information, public participation in decision-making and access to justice in environmental matters, O.J. L 124. The European Parliament and Council then adopted Regulation (EC) No. 1367/2006 (6 September 2006) on the application of the provisions of the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters to Community institutions and bodies, O.J. L 264. 49 Findings and recommendations with regard to communication ACCC/C/2008/32 (Part I) (14 April 2011) concerning compliance by the European Union, ECE/MP.PP/C.1/2011/4/Add.1; Findings and recommendations of the Compliance Committee with regard to communication ACCC/C/2008/32 (part II) (17 March 2017) on compliance by the European Union, ECE/MP. PP/C.1/2017/7. 50 District Court of The Hague C/09/456689/HA ZA 13-1396 ‘Urgenda Foundation v The State of the Netherlands (Ministry of Infrastructure and the Environment’ (24 June 2015). 51 Supreme Court of the Philippines 224 S.C.R.A. 792 ‘Oposa v Factoran’ (30 July 1993). 52 See Kreilhuber and Kariuki (2020), p. 596, and Boyd (2011). See also German Federal Constitutional Court (24 March 2021) BvR 2656/18/1, BvR 78/20/1, BvR 96/20/1, BvR 288/20, ‘Neubauer et al. v. Germany’. A more recent analysis of modern Constitutions allows us to record a good margin of tendency towards a ‘constitutionalization of the environment’. In the perspective to give constitutional value to the protection of the environment and the common heritage of human being, see French Constitutional Court 2019-823QPC (31 January 2020). On the interpretation of the constitutional right to health as incorporating the right to live in a healthy environment in Italy, see Italian Constitutional Court 210/1987 (22 May 1987); Italian Constitutional Court 127/1990 (7 March 1990). In Italy, very recent is the definitive approval of the amendment of Arts. 9 and 41 of the Constitution (Proposal of Constitutional Law No. 3156), with which the principle of protecting the environment, biodiversity and ecosystems has been introduced, within the framework of the fundamental principles set out in the Constitution, ‘also in the interest of future generations’. An interesting overview of cases before European national courts can be found in de Sadeleer et al. (2002) and Ebbesson (2002).

238

E. Vannata

informs the interpretation of rights, and that sustainable development to meet the needs of future generations is a fundamental right in itself.53 Domestic legal systems, defining their own conditions for standing, demonstrate a more favorable attitude to the implementation of human rights treaties. Indeed, as Mayer noted, the absence of identifiable ‘victims’ ‘could strike a fatal blow to individual or group applications before regional human rights courts and complaints to treaty bodies’.54 The ECtHR has admitted relevant cases in environmental matters where admissibility was limited to applicants who were ‘directly and seriously affected’55 or otherwise could prove ‘a reasonably foreseeable threat’ to their rights.56 However, as rightly noted, ‘the relevant cases admitted by the European Court of Human Rights, for instance, typically concern individuals affected by a disaster or directly exposed to a major local source of pollution, rather than those exposed to more diffuse environmental harms’.57 Indeed, demonstrating the quality of victim of a human rights violation has proven to be an obstacle, since climate change hinders the enjoyment of human rights in a diffuse way. Instead, the well noted approach embraced by the ECJ led to inadmissibility rulings, for instance, in the Carvalho and others judgment where ‘the applicants have not established that the contested provisions of the legislative package infringed their fundamental rights and distinguished them individually from all other natural or legal persons concerned by those provisions just as in the case of the addressee’.58 Overall, this procedural caveat reveals a concrete obstacle to human rights-based climate litigation, and more generally, access to justice and the rule of law, with particular regard to the ‘draconian conditions’59 laid down by ECJ settled case-law on the legal standing of individuals, resulting in a vulnus to the effectiveness of their judicial protection. In view of the exceptionality of the interests at stake in the field of climate justice, a more courageous position of the ECJ60—reinterpreting the locus standi

53

Slobodian (2020), p. 583. Mayer (2021), p. 422. 55 European Court of Human Rights (First Section), Judgment (24 January 2019), 54414/13 and 54264/15, Cordella and others v Italy; European Court of Human Rights (Third Section), Judgment (1 December 2020), 17840/06, Yevgeniy Dmitriyev v Russia, para. 32; European Court of Human Rights (Grand Chamber), Judgment (8 July 2003), 36022/97, Hatton v UK, para. 96. 56 European Court of Human Rights, Judgment (29 June 2010), 48629/08, Hubert Caron and others v France. 57 Mayer (2021), p. 421. 58 See European Court of Justice (Sixth Chamber), Order (8 May 2019), T-330/18, Armando Carvalho and Others v European Parliament and Council of the European Union. See also European Court of Justice (Eighth Chamber), Order (6 May 2020), T-141/19, Peter Sabo and Others v European Parliament and Council of the European Union. 59 Ferraro (2022), p. 191. 60 Confirmed also in the appeal judgments of Carvalho and others and Sabo. See European Court of Justice (Sixth Chamber), Judgment (25 March 2021), 565/19 P, Armando Carvalho and Others v European Parliament and Council of the European Union; European Court of Justice (Eighth 54

Environmental Solidarity and the Rule of Law in the EU System:. . .

239

requirement of ‘individual concern’ to allow standing in cases of serious interference with human rights, or with their essence61—toward the traditional approach to standing would have contributed to making the right to effective remedy—enshrined in Art. 47 CFREU—fully effective and in line with the needs envisaged by the Aarhus Convention, and would also have allowed the Court to examine the substance of the dispute.

6 Conclusions A main challenge is to respond to increasing environmental pressure and pursue environmental sustainability in the context of fair, effective, and transparent (global) governance arrangements and rule of law, the strengthening of which is crucial to protecting environmental, social, and cultural values, and to achieving ecologically sustainable development. Intergenerational equity, as the first distinguishing element of environmental (rule of) law strongly linked to the solidary rationale of the concept of sustainable development, plays a crucial role in global environmental governance. The application of intergenerational rights by a notable number of national and international courts across the world addressing climate change issues shows a positive trend in the progressive affirmation of a rights-based approach in environmental matters, although several complexities are on the horizon. Many years ago, Judge Tesauro stated that a right is not such if it does not find adequate and effective protection.62 Nevertheless, in environmental domain, the effectiveness of access to justice as a relevant element of the rule of law is threatened, especially with regard to the difficulties encountered by natural or legal persons in asserting their legal standing before a judge. If domestic legal systems demonstrate a more favorable attitude— even if not entirely uniform—to the implementation of human rights treaties also through a dynamic interpretation of their standing criteria, the approach embraced by the ECJ is more reticent and de facto prevents individuals from reviewing the performance of States and institutions on acts or measures adopted, even when human rights are involved. Indeed, interest in human rights in relation to climate change largely concerns access to litigation and other compliance mechanisms. And if neither the UNFCCC nor the Paris Agreement have an effective compliance system, human rights treaties can provide individuals or groups with the opportunity to claim spaces of protection, subjecting States to an assessment of their performance with regard to their

Chamber), Order (14 January 2021), C-297/20, Peter Sabo and Others v European Parliament and Council of the European Union. 61 See Winter (2020), pp. 163–164. 62 Tesauro (1993), p. 1.

240

E. Vannata

obligations, whereas individuals cannot generally rely directly on treaties or customary law.63 Therefore, within the EU framework, it is reasonable to consider there is a need to go beyond the Plaumann test, through a less rigid interpretative approach to the locus standi criteria,64 taking into account the specific weight of climate change compared to the full and effective enjoyment of the rights strongly threatened by it, also in light of the findings of the ACCC pointing to the EU’s severe failure in terms of access to environmental justice. However, we also need to remember that even if we are right to want something more radical about change climate, the courts are not the starting point. They come at the end of the legislative process, not at the beginning.65

References Barnard C (2005) EU Citizenship and the Principle of Solidarity. In: Spaventa E, Dougan M (eds) (2005) Social welfare and EU law. Hart Publishing, Oxford, pp 157–180 Bellinkx V, Casalin D, Erdem Türkelli G, Scholtz W, Vandenhole W (2021) Addressing climate change through international human rights law: from (extra)territoriality to common concern of Humankind. Transnatl Environ Law 1–25 Bengtson VL, Olander E, Haddad E (1976) The ‘Generation Gap’ and aging family members: toward a conceptual model. In: Gubrium JF (ed) (1976) Time, roles, and self in old age. Human Sciences Press, Verona Biondi A, Dagilytė E, Kücük E (eds) (2018) Solidarity in EU law. Legal principle in the making. Edward Elgar Publishing, Cheltenham-Northampton Boyd RD (2011) The implicit constitutional right to live in a healthy environment. Rev Eur Commun Int Environ Law 20(2):171–179 Boyle A (2006) Human rights or environmental rights? A reassessment. Fordham Environ Law Rev 18(3):471–511 Boyle A (2020) Progressive development of international environmental law: legislate or litigate? German Yearb Int Law 62(1):305–333 Brown Weiss E (2021) Intergenerational Equity. In Max Planck Encyclopedias of International Law. https://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690e1421?prd=MPIL Campanelli D (2011) Solidarity, Principle of. In Max Planck Encyclopedia of Public International Law. https://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690e2072?rskey=bgIRtJ&result=3&prd=MPIL Collins LM (2007) Environmental rights for the future: intergenerational equity in the EU. Rev Eur Commun Int Environ Law 16(3):321–331

63

More in general, see Nollkaemper et al. (2019) and Posner (2006). A rethink by the Luxembourg judges could be envisaged on the ground of the recently approved reform of the Aarhus Regulation (Regulation (EU) 2021/1767 of the European Parliament and of the Council (6 October 2021) amending Regulation (EC) No 1367/2006 on the application of the provisions of the Aarhus Convention on Access to Information, Public Participation in Decisionmaking and Access to Justice in Environmental Matters to Community institutions and bodies, O.J. L 356). 65 Boyle (2020). 64

Environmental Solidarity and the Rule of Law in the EU System:. . .

241

Cordonier Segger MC (2008) Sustainable development in international law. In: Bugge HC, Voigt C (2008) Sustainable development in international and national law: what did the Brundtland report do to legal thinking and legal development, and where can we go from here?. Europa Law Publishing, Groningen de Sadeleer N, Roller G, Dross M (2002) Access to Justice in Environmental Matters. Final Report. https://ec.europa.eu/environment/aarhus/pdf/accesstojustice_final.pdf. Domurath I (2012) The three dimensions of solidarity in the EU legal order: limits of the judicial and legal approach. J Eur Integr 35(4):459–475 Ebbesson J (ed) (2002) Access to justice in environmental matters in the EU. Kluwer, The Hague Ferraro F (2022) L’evoluzione della politica ambientale dell’Unione: effetto Bruxelles, nuovi obiettivi e vecchi limiti. In Convegni Annuali e Interinali AISDUE. https://www.aisdue.eu/ fabio-ferraro-levoluzione-della-politica-ambientale-dellunione-effetto-bruxelles-nuoviobiettivi-e-vecchi-limiti/ French D (2005) International law and policy of sustainable development. Manchester University Press, Manchester Gaudiosi F (2021) The principle of solidarity in international environmental law: the multilevel governance role in the post-Pandemic Era. CamminoDiritto 3:1–18 Grimmel A, My Giang S (2017) Solidarity in the European Union. A fundamental value in crisis. Springer, Cham Katz R, Lowenstein A, Phillips J, Olav Daatland S (2005) Theorizing intergenerational family relations: solidarity, conflict, and ambivalence in cross-national contexts. In: Bengtson VL, Acock AC, Allen KR, Dilworth-Anderson P, Klein MD (eds) Sourcebook of family theory and research. SAGE Publications Inc, Thousand Oaks, pp 393–421 Kenig-Witkowska M (2017) The concept of sustainable development in the European Union policy and law. J Comp Urban Law Policy 1(1):64–80 Kreilhuber A, Kariuki A (2020) Environmental rule of law in the context of sustainable development. Georgetown Environ Law Rev 32:591–598 Mastroianni R (2011) Diritti dell’uomo e libertà economiche fondamentali nell’ordinamento dell’Unione europea: nuovi equilibri? Il diritto dell’Unione europea 16(2):319–355 Mayer B (2021) Climate change mitigation as an obligation under human rights treaties? Am J Int Law 115(3):409–451 Menendez AJ (2003) The sinews of peace. Rights to solidarity in the charter of fundamental rights of the European Union. Ratio Juris 16(3):374–398 Nollkaemper A, Reinisch A, Janik R, Simlinger F (eds) (2019) International law in domestic courts. Oxford University Press, Oxford Oriolo A (2023) The rule of law, transnational crimes, and the human rights-based approach in the European Union: The Court of Justice as Ultimate Guardian of the ‘Good’ Laws. In: this book Piernas JC, Pasquali L, Vives PF (eds) (2017) Solidarity and protection of individuals in EU law. Addressing new challenges of the union. G. Giappichelli Editore, Turin Posner EA (2006) Climate change and international human rights litigation. Univ Pennsylvania Law Rev 155:1925–1927 Roberts REL, Richards LN, Bengtson VL (2009) Intergenerational solidarity in families: untangling the ties that bind. Marriage Family Rev 16(1-2):11–46 Sangiovanni A (2013) Solidarity in the European Union. Oxford J Legal Stud 33(2):213–241 Slobodian L (2020) Defending the future: intergenerational equity in climate litigation. Georgetown Environ Law Rev 32:569–589 Tesauro G (1993) The effectiveness of judicial protection and cooperation between the Court of Justice and National Courts. Yearb Eur Union Law 13(1):1–17 Winter G (2020) Armando Carvalho and Others v. EU: Invoking Human Rights and the Paris Agreement for Better Climate Protection Legislation. Transnatl Environ Law 9(1):137–164

242

E. Vannata

Emanuele Vannata is Ph.D. candidate in ‘Legal Sciences’ (International, European and Comparative Law) at the Department of Legal Sciences (School of Law) of the University of Salerno (Italy). Until January 2023, He was Research Fellow on ‘Big Data and Patient Monitoring: Privacy Issues and Solutions’ at the Department of Management & Innovation Systems of the University of Salerno (Italy). At the same University, he is also Honorary Fellow and Teaching Assistant in International Law, Diplomatic and Consular Law and International Law and Cyber Security at the Department of Management & Innovation Systems as well as in European Union Law, European Union Migration Law, International and European Criminal Law, International Organization and Law of the European Single Market, International Trade and New Technologies at the Department of Legal Sciences (School of Law). In 2021, he achieved a Postgraduate Specialization on EU law at the University of Naples ‘Federico II’. Furthermore, he is Tutor of the 2022–2025 Jean Monnet Chair ‘Promoting Public Awareness on Enlargement Policy, EU Values and the Western Balkans’ Accession’ (EUVALWEB), Member of the EUVALWEB Legal Observatory, as well as Member of the EUWEB Legal Observatory of the 2019–2022 Jean Monnet Module ‘EU-Western Balkans Cooperation on Justice and Home Affairs’ (EUWEB), and Member of the Research Staff of IECLO (International and European Criminal Law Observatory on Cultural Issues, Human Rights, and Security), at the same university. He also serves as Editorial Assistant of the online Scientific Journal EUWEB Legal Essays. Global & International Perspectives. Due to his research interests in the domains of international and EU law and jurisprudence (i.e., climate change, environmental and health protection, migration and fundamental rights, and judicial and police cooperation), he participated as speaker in many conferences and seminars, but also in several research projects funded by University of Salerno. Together with his research’s activities, he is furthermore active in scientific production and in editorial assistance. Emanuele Vannata is also a Lawyer at the Salerno Bar Council.

Part IV

Solidarity and Rule of Law in Police and Judicial Cooperation

Building on Core Strengths: Lessons from Justice Sector Reform in Albania Steven Blockmans and Ardian Hackaj

Abstract Kick-started by a unanimous decision by parliament in 2016, rule of law reform in Albania is the first radical attempt in the Western Balkans at cleansing the justice system from corrupt and incompetent elements, burdensome procedures and other dysfunctionalities. While not discarding the ‘problem-solving method’ that defines the EU’s approach and that of many other international donors to transition processes in the region, it is by applying an ‘appreciative inquiry’ method to the findings gathered from extensive field research carried out in the ALBE project that this contribution identifies and assesses the features of the country’s new structures and institutions that belong to the ‘positive core’ of justice sector reform: vision, values, key competences, basic infrastructure, embedded knowledge, learning processes, organisational achievements, technical and financial assets and resources, facilitating macro trends, and the solidarity of partners. In a constructive, yet critical way, this chapter shapes up those (f)actors that help drive rule of law reform in the six countries of the Western Balkans (WB6) forward. It finds that, in order to be resilient enough to resist the kind of capture witnessed in some member states that have joined the EU since 2004, justice sector institutions in the WB6 should closely observe Albania’s ongoing reform efforts at earning ‘throughput legitimacy’ and make sure that they are well governed, plan for the long term, take account of the availability of local resources, and carry out regular risk-management exercises.

S. Blockmans CEPS, Brussels, Belgium College of Europe (Bruges and Natolin), Bruges, Belgium European Foreign Affairs Review, Brussels, Belgium e-mail: [email protected] A. Hackaj (✉) Tirana Connectivity Forum, Tirana, Albania Director of Research, Cooperation and Development Institute, Tirana, Albania e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 T. Russo et al. (eds.), Solidarity and Rule of Law, European Union and its Neighbours in a Globalized World 9, https://doi.org/10.1007/978-3-031-29227-9_13

245

246

S. Blockmans and A. Hackaj

1 Introduction For the past decade, EU membership aspirations of candidate countries have been conditioned on the progress of justice sector reform. In an effort to operationalise its monitoring and to strengthen the credibility of the pre-accession process, the European Commission put the emphasis on securing ‘fundamentals first’. In 2012, it presented a new approach to the rule of law, which focusses on EU accession negotiation Chapter 23—Judiciary and Fundamental Rights, and Chapter 24—Justice, Freedom and Security.1 In 2020, it put these into a cluster called ‘Fundamentals’.2 Gradually, the insistence on these fundamentals has been frontloaded, to the point where measurable progress on judicial reform and the fight against corruption and organised crime became explicit conditions to open accession talks. In Albania’s case, while the reforms had been advancing since October 2014, the June 2018 Council conclusions transformed them into an integral part of the conditions put forward by EU for the official opening of accession negotiations.3 At the same time they were further refined as the new conditions focussed on measurable impact; and the scope of existing conditions was enlarged to include ‘fundamentals’ such as respect for democratic principles, human rights and the rule of law.4 Those new additions were almost exclusively the result of requests coming from Member States, in particular France, the Netherlands and Denmark.5 The 2020 enlargement strategy confirmed this shift with the role that it foresees for Member States in on-site monitoring, reporting and providing assistance in selected sectors. This development has been at the centre of European Council discussions regarding the opening of negotiations with Albania and North Macedonia.6 As a result, the pre-accession instruments of political dialogue, conditionality and assistance have been geared toward making a success of the justice sector reform, so as to open the way for speedier convergence in other areas, i.e., strengthening of democratic institutions, public administration reform and economic governance. But it is the slow pace of judicial reform that has affected progress in those other areas, as well as the EU’s enlargement process writ large, resulting in a Catch-22 situation: the pre-accession incentives needed to complete justice sector reform are held back

1

Communication from the Commission to the European Parliament and the Council Enlargement Strategy and Main Challenges 2012–2013 (2012). 2 Communication from the Commission to the European Parliament, the Council, the Economic and Social Committee and the Committee of the Regions 2020 Communication on EU Enlargement Policy (2020). 3 General Affairs Council, doc. 10555/18 (26 June 2018). 4 Frontloading Conditionality: The EU Council Track Record Table for Albania. https://cdinstitute. eu/2020/04/21/frontloading-conditionality-the-eu-council-track-record-table-for-albania/. 5 See Fouéré (2019). 6 For a critical reflection, see Fouéré (2021).

Building on Core Strengths: Lessons from Justice Sector Reform in Albania

247

because of the slow progress made on judicial reform.7 As a result, the official opening of accession negotiations is pushed back. This raises the question how to break the downward spiral, and which lessons to draw for similar cases in other Western Balkans countries. The breadth and depth of justice sector reform in Albania represents a unique case to understand, assess and adapt the systemic importance of EU membership-driven reform processes in the WB6. We will do so on the basis of the findings gathered in the ALBE project (Sect. 2), to which we apply the ‘appreciative inquiry’ method with an aim of emboldening ‘throughput legitimacy’ to what is a long and cumbersome process of achieving institutional resilience (Sect. 3). We find that the choice of the reform design, the need for societal involvement and support for system change, the importance of comprehensive and long-term planning alongside the availability of resources, and the value of selecting reform partners to carry out such changes in full solidarity constitute the ‘positive core’ that conditions the overall success of such a transition in line with EU principles and standards (Sect. 4). The overall premise of this chapter is that in order to be resilient enough to resist the kind of capture witnessed in some member states that have joined the EU since 2004,8 justice sector institutions in the other WB6 countries should closely observe Albania’s reform efforts and make sure that they are well governed and plan for the long term, taking into account the availability of local resources and carrying out regular riskmanagement exercises.

2 Changing the Approach: How to Monitor the Reforms Extensive field research conducted in the framework of the ALBE9 initiative categorised the initial problems encountered in Albania’s judicial reform process as follows: First, the political will of local political elites was not sufficiently taken into account in the overall design of the judicial reform process. Most of the blockages in the set-up phase of new institutions and structures were derived from political 7

The Commission’s regular report of October 2020 notes that 35% of the EUR 98 million available for the implementation of the justice strategy is derived from international donors, in particular the EU. 8 Communication from the Commission to the European Parliament, the Council, the Economic and Social Committee and the Committee of the Regions 2021 Rule of Law Report. The Rule of Law Situation in the European Union (2021). 9 ALBE—Preparing and Supporting Albania for EU Accession Process, is an initiative implemented from 2018 to 2020 by Cooperation and Development Institute and supported by Dutch Embassy in Tirana. It focused on the inter-connectedness between enlargement and reforms. Other related research include: (i) EU Enlargement in SEE6 and Country Reforms: The Justice Reform in Albania as a Case Study; (ii) Frontloading Conditionality: The EU Council Track Record Table for Albania; and (iii) EU Candidate Country Reforms and the New Enlargement Methodology: Searching For a Roadmap, and; (iv) Good Governance of New Justice Institutions in Albania.

248

S. Blockmans and A. Hackaj

bickering. Only when it became apparent that international partners would not allow any deviation from the set course, did the Albanian political elites rally behind the reform (as illustrated by the 140 to 0 vote on Constitutional amendments allowing for justice reform to proceed). Second, no worst-case scenarios, no mitigation measures and no plans B or C were foreseen. Hence, many ad-hoc solutions and compromises were adopted to overcome the blockages during the institutional set up phase, thus affecting the longer-term resilience of the whole system. Third, the initial design of the reform, its overall architecture and subsequent resources were based on seven pillars: reassessment of the functioning of the Constitutional Court; judicial power; reassessment of civil and criminal law; the creation of anti-corruption structures; reassessment of legal education and training; financial arrangements for justice sector reform; and independent legal professions. Yet, once underway, the focus of the reforms shifted almost exclusively to the vetting process. When the vetting started delivering its results in 2018, many justice officials either resigned or were dismissed (mainly over unjustified owned assets). As a result due to, inter alia, delays in the re-evaluation proceedings and the lack of qualified candidates the country was left without fully functioning institutions (a situation which, for the Constitutional Court and High Court, persisted until well into 2020). Moreover many of the suggested replacement candidates were strongly contested by the opposition as well as by representatives of civil society, thus affecting the democratic legitimacy of the new structures. Fourth, the ten-month delay in parliament to raise the necessary budget for the new structures was carried over into the overall functioning cycle of the newly established bodies. As a direct consequence, the ‘triggering mechanism’ (which requires the total and perfect closure of one step to advance to the next), which was designed to guarantee the ‘purity of new institutions’, delayed the whole set-up phase. Fifth, the overwhelming focus on the vetting phase, the delays in setting up the new structures and institutions, the continuous political interference and huge public-opinion expectations to ‘catch the big fish’ distracted attention and resources from the operation phase. Once the legal set-up phase ended, the new justice structures faced technical and administrative hurdles to tap into the necessary financial and human resources to start functioning, found themselves with incomplete rules of procedure, as well as an over-reliance on external assistance. This affected their efficiency and, if not corrected, in the long term may impact their sustainability.10 These initial challenges faced in Albania’s judicial reform process11 had a direct negative impact on the pre-accession dynamics of the country. The EU compliance

10

A comprehensive overview of the reasons causing delays in the set-up and initial phase of operation of the new justice institutions is presented in Skendaj et al. (2019). 11 For a comprehensive view of main challenges that freshly established justice institutions faced, see Hackaj (2020).

Building on Core Strengths: Lessons from Justice Sector Reform in Albania

249

control of the ‘fundamentals’ duly reflected the shift from the Commission’s box-ticking exercise focussed on the establishment of new institutions, to the Member States’ insistence on the democratic legitimacy of the new structures.12 So while the Commission reported on the successes of the institutional set-up phase, the Member States in the (European) Council denounced the political manoeuvrings of Albania’s political parties accused of trying to control the set-up of the new justice reform institutions. This bifocal attention paid to legal establishment of new structures as well as to the democratic legitimacy of new justice sector institutions was eventually reflected in the New Enlargement Methodology (NEM) of February 2020, endorsed at the subsequent European Council summit. The focus on fundamentals and the increased role of the Member States in monitoring reforms on the ground, in the preparation of regular country reports, and in the provision of assistance in selected sectors is now an official part of the NEM.13 Yet, the NEM contains neither benchmarks nor a comprehensive methodology that unifies the monitoring of democratic legitimacy of the WB6 institutions with the control of their deliverables. The strategy is based on a problem-solving approach. As such its successful implementation depends on a thorough understanding of the root causes of the challenges faced by the WB6, identifying the right way to deal with them, assembling the necessary allies on the ground, and employing the instruments and resources to make sure that the solution is sustainable and the new institutions are resilient. The roadmap for the rule of law chapters, equivalent to the previous action plans, will have to address the need for realistic and efficient monitoring of progress of reform deliverables and of the democratic legitimacy of the WB6 institutions. Disconnected as it is from the historical, cultural and socio-economic foundations of individual WB6 countries, the NEM does not properly identify short- and longerterm local needs, resources and limiting (f)actors. It also insufficiently valorises the ‘leveraging of local structures’ core strengths’. And perhaps most interestingly, the strategy simply assumes the unwavering commitment of current WB6 political elites to European values and to full EU membership as an unchangeable constant.

12

The complaints of Member States were more about the capture of new democratic institutions, their representativeness or their accountability than about their deliverables. In concrete terms, while the Commission was OK-ing the deliverables of the reformed institutional framework, Member States were questioning their democratic legitimacy, as translated by Bundestag conditions. For an analysis of the shift of Member State conditionality towards democratic legitimacy and rule of law, see https://cdinstitute.eu/wp-content/uploads/2020/04/FRONTLOADING-CONDI TIONALITY_THE-EU-COUNCIL-TRACK-RECORD-TABLE-FOR-ALBANIA.pdf. 13 Communication from the Commission to the European Parliament, the Council, the Economic and Social Committee and the Committee of the Regions Enhancing the accession process - A credible EU perspective for the Western Balkans (2020). The NEM also made obligatory a roadmap for the Chapter on rule of law and on institutions, a scope dramatically larger than the ongoing public administration reform. By deciding that the cluster of ‘fundamentals’ be opened first and closed last, the Commission underlined the systemic importance that democratic legitimacy of WB6 institutions has for the EU.

250

S. Blockmans and A. Hackaj

Seen from this perspective, we consider it of high added value to use Albania’s experience in justice sector reform to build a coherent body of knowledge that will help to better plan, implement, monitor and maintain a sustainable institutional reform dynamic in the WB6.

3 An Appreciative Inquiry Method We estimate that identifying success (f)actors and using the core strengths of reform structures such as local context and examples of good governance can improve the efficiency and effectiveness of domestic reform processes, and the overall resilience of new institutions. Moreover, lessons learned can eventually be uploaded to the EU’s overall enlargement policy. While not discarding completely the ‘problem-solving approach’ of the NEM, we believe that an ‘appreciative inquiry’ approach can be used to identify and assess features of the new structures and institutions that belong to the core strengths of justice sector reform. After all, the ulterior aim of this policy study is to tease out lessons on how to maximise success (f)actors that render resilient the good governance mechanisms in the justice sector. As explained below, the emphasis is on ‘throughput legitimacy’. In contrast, exclusively adopting a problem-solving approach would mean isolating the justice reform from a country's socio-economic context, prioritising the production of short-term results without taking much account of the permissiveness of the local context, the origin, amount and long-term availability of mobilised resources, the availability of local inputs, the governance features of the reform process, the sustainability of results and the resilience of newly established institutions. Our analysis is primarily based on an adaptation of the research method developed by David Cooperrider, Professor of Social Entrepreneurship at Case Western University.14 His methodology of change management focuses on leveraging an organisation’s ‘positive core’ strengths to design and redesign the systems within an organisation to achieve a more effective and sustainable future. Rather than relying on public perception, our ‘appreciative inquiry’ into the sustainability of Albania’s justice sector reforms was therefore based on a series of semi-structured interviews, and a workshop with key stakeholders conducted in late 2020. By asking questions about the main results and achievements of aligning the Albanian justice system to European standards (see Annex 1), affirmative choices and success (f)actors can be identified for the past, present and future of the judicial reform process (cf. Sect. 4). Because of the long timeframes and limits to domestic absorption capacity, difficult transition processes are vulnerable to a return of bad habits. To ensure the sustainability of reform efforts and achieve resilience of key institutions, ‘throughput 14

See, e.g., Cooperrider et al. (2008).

Building on Core Strengths: Lessons from Justice Sector Reform in Albania

251

legitimacy’ is essential. Following the work of Vivien Schmidt, Jean Monnet Professor at Boston University, the study of ‘throughput legitimacy’ concentrates on what goes on inside the ‘black box’ of governance, in the space between the political input and the policy output.15 Core features of governance structures and processes include, inter alia, effectiveness, efficiency, transparency, accountability, predictability, sound financial management, fighting corruption, etc.16 It is those features of throughput legitimacy that we will use in our appreciative inquiry into Albania’s justice sector reform. As such, our analysis touches on: • The prevention of institutional entropy, i.e., if cost of input resources is higher than the cost (or financial value) of deliverables; • Whether crucial inputs such as financial and human resources are available and accessible during the whole duration; • A (mis)alignment of the local value system to the chosen institutional architecture (mostly conditioned by particularism vs. universalism); • The overall benefit for the citizen when policymakers shift the available resources and political capital away from health, social or education towards justice sector reform (or the Pareto improvement concept17); and • The amount of any eventual collateral damage done during the reform process (such as institutional blockage). Throughput quality directly impacts institutional resilience, i.e., the capacity of governance structures to withstand shocks induced by, inter alia, corruption and incompetence. Bad throughput—consisting of oppressive, incompetent, corrupt or biased governance practices—regularly undermines public perceptions of the legitimacy of institutions’ governance, regardless of the degree of input legitimacy or the effectiveness of their output. Insufficient or bad throughput more than often de-legitimizes both inputs and outputs. To learn about the throughput quality of their governance mechanisms as identified by their efficacy, accountability, transparency, inclusiveness and openness to interest intermediation, the interviews with office holders of new justice reform institutions (see Annex 2), covered the following components: • Human and technical resources, including office space, number and skill proficiency of support staff; availability of IT systems, manuals, etc. • Budget support and logistics for the institutional set-up; • Standard operating procedures, i.e., state of affairs of their design, adoption and implementation inside the new structure and institutions, as well as clear and efficient inter-institutional communication and coordination procedures between structures involved. 15

Schmidt (2013). See also Boerzel et al. (2008). 17 A situation is called ‘Pareto improvement’ when after an induced change some agents win and no agent loses. 16

252

S. Blockmans and A. Hackaj

The goal was to have a summary view on the administrative capacity built up during the reform process. We then organised a roundtable discussion with the interviewees and other key interlocutors to validate our initial findings (Tirana, 24 November 2020).

4 Constructive Criticism Albanian judges, lawyers, academics and even high-ranking politicians have accepted that one of the unintended results of the justice sector reform was the paralysis of the country’s highest courts for roughly 2 years.18 That paralysis opened the door for new forms of legal abuse and corruption.19 Indeed, many criticisms that inform such judgments were shared with us during the interviews and workshop: the lack of precision in some of the reform laws; the lack of an inception period; the delays incurred to start the reform due to lax attitudes by both the government and parliament to make the necessary financial and infrastructural resources available; alleged political interference in the appointment of candidates for vetting structures and in the new justice institutions; the insufficiency of the pool of recruits who could fill the spaces left by those who resigned or were sacked in the context of the vetting process; etc. These findings are well documented in regular (‘progress’) reports by the EU and other international partners monitoring and assisting the transition processes underway in the WB6. Their assessments result from the ubiquitous problem-solving approach applied to the identification of main blockage points and challenges affecting reform efforts, also in the justice sector. Criticisms are mainly focused on the problems met during the phase of (re-)design of justice structures. But after that initial phase the ‘new’ justice institutions and structures face a new set of challenges related to their functioning. In Albania, shortages of qualified staff, of logistic resources, incomplete operating procedures, and insufficient financial support were among the very first issues new occupants had to deal with, before proceeding with the prosecution for corruption and trial procedures. Efficacy, accountability, transparency and inclusiveness became the real benchmarks of these new organisations. Their survival depended on the legitimacy of their governance and on their success in overcoming these multiple throughput challenges. During the first year of operations of the new justice institutions we identified good practices and collateral benefits that were not planned, but were implemented by the newly appointed office holders to overcome their daily challenges. In that context the valorisation of endogenous resources and practices is crucial to assure the sustainability and resilience of newly designed structures, once the support and protection of foreign partners has ended.

18 19

See, e.g., Myckaj (2020). See, e.g., Vurmo (2020).

Building on Core Strengths: Lessons from Justice Sector Reform in Albania

253

As mentioned before, our ‘appreciative inquiry’ approach is geared toward identifying and assessing features of the new structures and institutions that belong to the ‘positive core’ strengths of the reform. We will try to understand what worked in their first year of functioning, how they dealt with the problems they faced, what is their vision of the future and what would be their next steps. These features are clustered as follows: (i) vision, values and political will; (ii) key competences, basic infrastructure, embedded knowledge, technical and financial resources; and (iii) sustainability, learning processes and the level of solidarity of partners.

4.1

Vision, Values and Political Will

Vision, values and political will are the sine qua non preconditions for any reform process to materialise. In the case of Albania they came from a combination of internal and external actors. The pull factor of EU membership and the push factor of the international community (mainly EU delegation and US embassy in Tirana) catalysed and channelled Albanian political and societal forces, to support and engage in an ambitious justice sector reform. A clear strategic vision, grounded in Albania’s amended constitution and European values, guided the process. Responding to the frustrations of Albanian citizens, the reform capitalised on their expectancies of fighting corruption, increasing their access to justice, ensuring the separation of powers and the independence and impartiality of the judiciary, promoting professionalism, and increasing overall efficiency and accountability of the judiciary. The reform was presented as an absolutely necessary first step to get closer to full EU membership, and to demonstrate Albania’s belonging to a European community of values. As such, the highly scrutinised 2016 Parliamentary vote of 140 to 0 in favour of judicial reform generated a historical paradigm shift for Albania. The crucial role played by unreserved support from US and EU allies is perfectly illustrated by the proverb ‘where there is a will, there is a way’. The role of political will of local elites (or its absence) appears in the establishment and functioning of the Justice Appointment Council (JAC).20 The initial chaos (no by-laws, no detailed administrative procedures regarding the recruitment of Constitutional Court members, no support staff and no adequate office space)21 was compounded by the heavy intervention of politics. Such ‘negative political will’ added to the planners inability to properly account for local restrictive factors made visible two defects: (i) the planning of the creation of the JAC was not optimal as it

20

A temporary Justice Appointment Council was foreseen in case it was impossible to set up the ‘real’ JAC in time. However due to missing political will and the failure to vet many candidates, the temporary JAC did not start functioning properly until 2018. 21 JAC Annual Report 2019.

254

S. Blockmans and A. Hackaj

did not address the eventuality of ‘capture’ phenomena; (ii) its throughput legitimacy was not addressed either, as evidenced by lacunas in its functioning. However after a tumultuous start, many pieces of the puzzle fell into place. Among the most relevant achievements the following can be mentioned: • The High Judicial Council (HJC) has for the first time adopted a strategic action plan and in 1 year has reached fulfilment of 70% of the planned measures. The Council managed to have regular and periodic meetings, despite COVID-19 restrictions. The HJC has been focussing also on ‘establishing a culture of justice, good judgment and organisation as a duty of new justice institutions’ and on establishing trust with the public. • Despite the limitations and restrictions faced by the High Prosecutorial Council (HPC) after a two-year delay in its creation, the Council has shown leadership (cf. >500 decisions taken since its establishment) and resilience in improving working processes. Best practices include the prioritisation of impactful decisions (cf. election of the General Public Prosecutor); taking initiative (cf. start of investigation against disciplinary measures for prosecutors, despite the High Justice Inspector not having been established); and good inter-institutional coordination with, e.g., the HJC, the Special Court and the Special Prosecutor’s Office Against Corruption and Organised Crime (SPOACOC). • Although SPOACOC was under high pressure to urgently deliver on its investigations of organized crime and corruption and communicate them with the public while drafting and adopting its own functioning rules, it has gradually moved towards a more strategic approach. The standards, internal processes and key performance indicators are being designed with the objective of efficiency and sustainability.

4.2

Key Competences, Basic Infrastructure, Internal Rules of Procedure, Technical and Financial Resources

The freshly created justice reform institutions hit the ground running. Despite the absence of an inception period, design flaws were addressed in the first year of their functioning; gaps in the new laws were plugged; relevant by-laws were adopted; and internal rules of procedure for the new institutions were drafted after their creation. ‘It was like fixing up a car while driving’.22 Top-down implementation proved effective yet revealed the need for pre-emptive accompanying bottom-up actions, for instance in the education of lawyers and the recruitment of new judges, of court staff and of prosecutors to ensure the continuation of operations and prevent delays in the implementation of the reform process. Quotation from Round Table ‘Making New Justice Reform Institutions Resilient’, organised by CDI with representatives of new justice institutions, in the framework of ALBE project, Tirana, 24 November 2020.

22

Building on Core Strengths: Lessons from Justice Sector Reform in Albania

255

Other relevant findings include: • All the new justice institutions had to, at the same time, administer the process of establishing their internal rules of organisation while running their internal administration, as well as exercising their constitutional and legal functions. • The establishment and functioning of SPOACOC and the National Bureau of Investigation (NBI) was a complicated and over-regulated process. During these operations, the new directors were almost exclusively lawyers who have proved committed and flexible enough to rise to the challenge of management and handson administration, despite not being properly trained or prepared for these tasks (‘juris non calculate’). • The procedures and rules of appointment and recruiting were overly regulated and complex. Sometimes the recruitment process for administrative staff (i.e., driver) takes 6 months or more. The supporting staff in some newly established structures has been transferred from the old structures. As such they were neither cleared, nor properly trained to be immediately operational and efficient in the new structures. • Logistical and infrastructural resources for the set up and initial functioning of new structures (i.e., working spaces, IT support, archiving systems, etc.) were made available, albeit belatedly. However now these aspects are regulated by law and fall under the remit of the newly established Justice institutions. This ensures their operational independence, helps them meet budget and recruitment requirements in a timely fashion and protects them against political interference. • The vision and commitment of office holders has been transmitted to the lower levels of the organisation as shown by their dedication and work ethic, notwithstanding the COVID-19 restrictions. To deal with the work surcharge and initial understaffing, the existing personnel have been dealing with a much higher workload than initially forecasted. Regarding the logistical facilities (especially for SPOACOC), even though accommodated temporarily in makeshift reduced office spaces, staff continued to perform their duties. The ability to function while still in the set-up phase is one of the main take-aways of that period. The main explanatory factor has been the professional and moral figure of the top office holder. We have identified cases where in the absence of support staff, it has been the institution head that has personally managed the HR selection and recruitment, supervised infrastructure work for the new offices or purchase of equipment, or deal with the outreach and communication with third parties. Within 1 year from its establishment, the HJC managed to successfully enable the functioning of the High Court and the process of appointment of judges to the Special Court Against Corruption; to improve the system for administration of courts, and; to advance the regulatory framework for the career evaluation of judges, etc. The Council managed to have daily and periodic meetings despite the pandemic. Yet the courts are facing limitations in terms of their functionality: their workload has been increased by 25%, while there is a 15% loss of resources due to the vetting process. A temporary scheme of ‘flying judges’ has been put in place to share the burden and deal with urgent cases (especially criminal law).

256

S. Blockmans and A. Hackaj

Within the first 11 months from its establishment, and with severe logistical and human resource limitations, SPOACOC started its first investigations into cases; elected the director of the National Bureau of Investigations (NBI), and; commenced the process of selecting candidates for the NBI. SPOACOC has had no problems in terms of budgeting, because the government approved the budget for 2020 before its establishment and met all requests for 2021. Moreover, SPOACOC was allowed to take financing from third parties (it received EUR 1 million from the USA and was expecting more financing in the framework of anti-mafia law). In anticipation of reaching a quorum (achieved at the beginning of 2021), the Constitutional Court (CC) continued to decide on the (in)admissibility of cases. Regarding logistic and administrative issues, it flagged infrastructural constraints posed by the building in which it was located, which has only one courtroom. The High Justice Inspector (HJI) presents a valuable case study where the head of the institution covers the planning gaps. During interviews it appeared that the head of HJI in the first days of establishment personally set up and arranged the administrative and financial procedures and obligations of the new institutions (right down to setting up Internet connections and arranging for payment of the public utility bills). After 10 months of functioning, a comprehensive assessment of the working environment led to the formulation of practical legislative and procedural proposals that aim to improve the functioning of HJI (i.e., review of recruitment criteria for legal inspectors, financial issues and inter-governmental relations). As the decision-making competencies move from elected politicians (for the design and set-up phase) to selected and vetted civil servants (for the operations phase), the impact of political will exercised by the executive and the legislative is expected to fade. The newly established independent heads of justice structures seem to have weathered the initial shock and are slowly but surely operating.

4.3

Sustainability, Transparency, Learning Processes and the Level of Solidarity of Partners

The reform has brought about significant change, by cleansing the justice system of a high number of officials who have failed to justify their wealth. Yet, the delays in recruitment and the small pool of suitable applicants have led to backlogs in dealing with cases. While the justice sector reform has benefitted from broad societal support, the delays, political bickering and large backlog have somewhat dimmed its initial shine. Unrealistic expectations about quickly catching ‘big fish’ have not played in its favour either. Yet, two developments have contributed to establishing the image of the new institutions. The first is transparency: almost all structures have paid great attention to communication and outreach. Online publication of proceedings has become the rule. Second, gradually the first deliverables have started to appear. While no big fish have been landed yet, a trickle of results have become evident. This

Building on Core Strengths: Lessons from Justice Sector Reform in Albania

257

includes the functionality of the Constitutional Court and the first indictments from SPOACOC. Hence the public discourse has shifted from delays in establishment and absence of results, to the quality of work of the new structures. The increased transparency on internal functioning and the production of outputs, have contributed to maintain unchanged the overwhelming positive expectations from the justice reform institutions.23 The support from international partners (EUD, USAID, support projects like Euralius, ICITAP, OPDAT and PAMECA) has proved crucial in this phase. The EU has allocated EUR 133.8 million for Rule for Law and Fundamental Rights for 2014–2020,24 out of which circa EUR 42 million is directly for justice reform, while different bilateral donors have also committed significant amounts. Moreover, it is to be strongly underlined that after the first moments, the Albanian executive and legislative have picked up the financial bill for the endeavour. Finally, the civil society has been an incomparable, even if underfunded, ally in support of the justice reforms through its critical knowledge, monitoring and advocacy. In dealing with their teething problems, the newly established institutions have been aware that they need to proceed with their reform obligations while keeping in mind the obligations arising from the European Convention of Human Rights, in particular Art. 6 of the ECHR which recognises the right to a fair trial and public hearing within a reasonable time. Regarding sustainability, capitalisation and resilience it is relevant to mention the following observations: • There is not only a need to secure sufficient budgets for the continued implementation of justice sector reforms; it is also necessary that such budgets are drafted by the institutions themselves, according to their needs in terms of, e.g., case management, training and education, internal audits and reviews of institutions’ role and functioning. While their functioning budget for the first year was drafted by external actors (politicians and external consultants), it is those very institutions that have drafted their own budget for the following years responding to their current and long-term needs. • After overcoming hurdles in the set-up phase, new institutions have been building up their own procedures as well as establishing inter-institutional relations. For example, the HJC works on the assumption that the sustainability and independence of the justice institutions is not just a case of logistics, raising capacities and drafting rules, but requires an esprit de corps and culture of justice. • In record time, the HJI has also drafted and adopted integrity compliance rules for the judiciary.

23 The total positive perception of SPOACOC remains within the statistical error margin, shifting from 88.7% in 2019 to 86.4% in 2020: for the Courts it remains virtually inchanged, from 91.81% to 91.2%. See Dyrmishi (2021), graph. 68 and 69. 24 Albania Financial Assistance under IPA II, at EU Commission, DG NEAR, extracted from: https://ec.europa.eu/neighbourhood-enlargement/instruments/funding-by-country/albania_en.

258

S. Blockmans and A. Hackaj

• Despite all these limitations and restrictions, the HPC has shown resilience and leadership. Three of the best practices identified in its activities are: (i) prioritisation (the election of the General Public Prosecutor), (ii) intake of initiative (start of investigation against disciplinary measures for prosecutors, despite the High Justice Inspector not having been established), and (iii) good coordination (start of investigation against disciplinary measures for prosecutors, despite the High Justice Inspector not having been established).

5 Concluding Remarks Critics have accused Albania’s justice sector reform for its high cost and vulnerability to political tampering, for decimating the numbers of judges and prosecutors, thus leaving the country for years without a functioning Constitutional Court and High Court, and for multiplying backlogs of lower courts, while failing to catch the big—corrupt—fish. They have a point. In a perfect justice reform process of such depth and scope, planning would have included worst case scenarios; the weight of political will of local elites would have been properly taken into account; the limited pool of suitable candidates for judges and prosecutors would have been accounted for; organisational development specialists would have been members of the reform planning team, and; public expectations would have been better managed. But after a difficult start, Albania is the first WB6 country to have successfully embarked in restructuring key components of its judicial system. Administrations of both the other WB6 countries and international partners alike would thus do well to heed the lessons learned from Albania’s radical rule of law reform efforts. (i) What has worked? On the political level: • key actors—internal and external—worked together to muster the political will needed to pass constitutional changes; • the vetting process is cleansing the judicial system from corrupt elements; • the new structures have been set up and, while not yet at full capacity, they are functioning. On the organisational level: • the profile of the leaders of the new justice structures has been key to further developments. Their values, vision, commitment and versatility have proven crucial for the completion for the set-up phase of the new institutions and the commencement of their regular functioning; • international support and ‘protection’ has been necessary to insulate the new structures against malign forces during the set up and first steps of functioning;

Building on Core Strengths: Lessons from Justice Sector Reform in Albania

259

• transparency with the media and with the wider public has been costly initially but is expected to pay off in the mid to long term. It has already contributed to public education. (ii) What could the next steps be? The main and crucial condition is to keep the independence of the (reform) structures intact from political and other interests. Once the mechanisms assuring their throughput legitimacy have been established, the focus should shift towards increasing the efficiency of processes and the quality and volume of deliverables. The fact that, now that they are functional, the new institutions can prepare their own budget and rules of procedure, and hire their own staff, is a very important step towards their sustainability and resilience. With the consolidation of their organisational structures, specialised administrative positions must be created and filled with a view to enriching the initially purely legal profile of new hires with financial, human resources and other management profiles. External technical assistance must include support in overall management of the new justice institutions. Targeted communication with—and better education of—the general population is necessary, on what to expect and how to approach the new justice institutions. Such expectation management would also contribute to an increased quality of individual complaints logged with different courts.25 It becomes crucial in this context to further develop the alliances of new justice institutions with their CSO and EU/US partners. (iii) Recommendations to be replicated and/or be uploaded in the enlargement methodology and/or disbursement of EU assistance Regarding the vision, values and political will, use the design phase to: (i) plan to mitigate the unavoidable intervention by politicians; (ii) plan for different scenarios and foresee safety nets in case of disruptions. Build capacity for resilience and not only for efficiency; (iii) plan for all laws and by-laws, while resisting over-regulation. Avoid the cases whereby laws are passed in parliament but the respective by-laws are left to be drafted latter on and passed by executive decision of the Council of Ministers (which lowers transparency and leaves space for capture); and (iv) plan and invest in the in-house culture (esprit de corps) and internal modus operandi of each justice institution. This requires, inter alia, leadership from management, a good exchange of information, continuous training and capacity-building.

25

For example, to improve citizens’ access to (and the workload of) the Constitutional Court, standard application forms, similar to those used by the European Court of Human Rights, could be drawn up. That would make it easier for citizens to submit a case despite lacking legal knowledge. Another instrument would be to strengthen the capacities of the bar association for submission of applications before the CC or other courts.

260

S. Blockmans and A. Hackaj

Regarding the key competences, basic infrastructure, internal Rules of Procedure, technical and financial resources, when setting up the new structures: (i) carefully scope and assess the available resources in finance and human capital, and design the future system accordingly; (ii) build in an inception period; (iii) provide flexibility in the regulation for recruitment of temporary replacements and administrative staff; and (iv) establish a set of key indicators for institutions to measure their own performance and create internal mechanisms of monitoring. Complement any external assistance with management development expertise. Regarding the sustainability, transparency, learning processes and the strength of partners: (i) straighten throughput legitimacy mechanisms by perfecting efficiency, transparency, accountability, predictability, sound financial management, and by fighting corruption; (ii) improve citizens’ access to courts by drafting standard application forms, to make it easier to submit a case despite lack of legal knowledge. Also strengthen the capacities of the bar association for submission of applications before the Constitutional Court; (iii) establish new channels and methods of communication with civil society organisations and the wider public in order to disseminate information about justice sector reform and the tasks and responsibilities of the (new) justice institutions. There is a need to package the information to make it easier for citizens to follow and understand; and (iv) create external mechanisms involving representatives of civil society, academia, bar associations, etc., to monitor the strategic action plans of the new justice institutions. Administering deep-cutting reforms that include building new institutions takes time, all the more so when such efforts are part of the democratic transformation of countries such as the WB6. While a ‘problem-solving’ approach is necessary to identify where the problem resides and what to fix, the ‘appreciative inquiry’ method is adapted to better use a country’s endogenous resources, to build on the positive core strengths of (reform) structures, and to use local strengths and the population’s aspirations based on European values. Applying the latter method in the entire judicial system of a country is a resource-intensive proposition. But the method is precious in selected high-value entry-points for policy-makers and reformers. For the new structures to flourish, the appropriate environment—positive, supportive and open—should take into account the available endogenous resources. In conclusion, after the first year of operations with Albania’s reformed justice institutions, the design flaws in the planning phase have more or less been overcome. Political will has accrued during the set-up phase mainly due to the extra-rigorous vetting of the newly recruited personnel, close monitoring by civil society, the support of international partners and—crucially—the work ethic injected into the

Building on Core Strengths: Lessons from Justice Sector Reform in Albania

261

newly designed institutions. Even when faced with huge challenges, their governance seems to be gradually falling into place. Human resources, finance, internal rules and logistical issues seem to be on track for resolving. The next challenges are shielding them from political interference and improving their governance. In doing so, they may provide further lessons to be learned by regional and international actors invested in durable justice sector reform in the Western Balkans.

Annex 1. Guiding Questions for Semi-Structured Interviews General – What has worked well in the justice sector reform process? – Which positive macro trends can be discerned?

Reform partners – Which mix of domestic (and external) stakeholders is key to ensure success? How do these stakeholders complement and reinforce each other? Which values should they represent? – How to involve key political constituencies and rally them behind the same flag so as to create champions of reform?

Design – What strengths did the vision of justice reform, and its formulation, encompass? – What are the benefits of a top-down and a bottom-up approach to reform? – Does it make sense to design a Plan B? If so, which are the variables that could facilitate compromise without detracting from the overall goal? – Which alternatives exist to the cascade methodology and the sequential triggering system (need to close one step in order to advance to the next)? Do these alternative methods enhance efficiency and sustainability to reform? Do they lessen the reliance on external assistance?

Implementation – – – –

Which basic infrastructure and knowledge could be relied upon? Which learning processes were put in place to guide the reform process? Were organisational achievements marked/’celebrated’ and, if so, how? Which technical and financial assets and resources were essential in following through with the implementation process?

262

S. Blockmans and A. Hackaj

Annex 2. Interviews – – – – – –

Mr. Arben KRAJA, Head of SPOACOC Ms. Naureda LLAGAMI, Head of HJC Mr. Gent IBRAHIMI, Head of HPC Ms. Marsida XHAFERLLARI, Member of Constitutional Court Ms. Adea PIRDENI, Deputy Minister of Justice Ms. Rudina HAJDARI, Chair of Parliamentary Committee on EU Integration

References Boerzel A et al (2008) Good Governance in the European Union. Berlin Working Paper on European Integration 7 Cooperrider D, Whitney D, Stavros J (2008) The appreciate inquiry handbook: for leaders of change, 2nd edn. Crown Custom Publishing, Brunswick Dyrmishi A (2021) Albanian Security Barometer National Survey 2020. Center for the Study of Democracy and Governance, Tirana Fouéré E (2019) Macron’s ‘Non’ to EU Enlargement, CEPS Commentary Fouéré E (2021) The EU’s enlargement Agenda is no longer fit for purpose, CEPS Commentary Hackaj A (2020) EU enlargement in WB6 and country reform: the justice reform in Albania as a case study. Cooperation and Development Institute, Tirana Myckaj E (2020) Judicial vetting: a key policy tool to fight corruption in Albania. U4 AntiCorruption Resource Centre Schmidt A-V (2013) Democracy and legitimacy in the European Union revisited: input, output and ‘Throughput’. Polit Stud 61:2–22 Skendaj E, Caka F, Bodgani M (2019) Study report on monitoring of the vetting process for judges and prosecutors for the period Jan 2017 – June 2018. Albanian Helsinki Committee, Tirana Vurmo G (2020) Tailor-made laws in the Western Balkans: state capture in Disguise. CEPS Policy Insight 12

Steven Blockmans is Director of the Centre for European Policy Studies (CEPS, Brussels). He is also a Senior Fellow at the International Centre for Defence and Security (ICDS, Tallinn), a Visiting Professor at the College of Europe (Bruges and Natolin) and Editor-in-Chief of the European Foreign Affairs Review. Blockmans is the author of Tough Love: the EU’s Relations with the Western Balkans (Springer 2007). For more than 20 years, he has advised governments in Southeastern Europe on justice sector reform and for 2 years he served as a long-term expert on legal approximation in the framework of an EU-sponsored project in support for the Ministry of European Integration of Albania. His latest book, The Obsolescence of the European Neighbourhood Policy (Rowman & Littlefield 2017) deals with the emergence of a more realist EU foreign policy as applied in its outer periphery. Ardian Hackaj is Director of Research at Cooperation and Development Institute, Tirana, and coordinator of Tirana Connectivity Forum. Mr. Hackaj has authored research on the Berlin Process, EU Connectivity Agenda, Belt & Road Initiative, Western Balkans 6 institutional reforms and good governance, etc. During his career Mr. Hackaj has held academic and management positions at the College of Europe-Bruges, International Organization for Migration, United Nations, and the EU Commission. He holds an MA from College of Europe and a BA in International Economics from Université Lumière, Lyon II.

Mutual Recognition in EU Judicial Criminal Cooperation and Its ‘Conditional Application’ to the European Investigation Order (EIO) Under ECJ Case Law Stefano Busillo

Abstract The European Union relies on the principle of mutual recognition for the circulation of judicial decisions of Member States, thus shaping their relations like clay resting on a pedestal of mutual trust. However, if this principle were applied without limitation, the fundamental rights of individuals involved in criminal proceedings would risk being unjustifiably compromised. In particular, blindly accepting the application of judicial cooperation instruments in criminal matters— e.g., the European Investigation Order—in a spirit of unconditional and unquestioning solidarity could lead to serious violations of these rights, endangering both mutual trust and the substantive rule of law. In this context, the chapter outlines the relationship between mutual recognition and solidarity, followed by a brief analysis of Court of Justice case law on the European Investigation Order and related practical indications and solutions to the aforementioned risks, with consequences for (even future) Member States that should not be underestimated.

1 Introduction This chapter analyzes the principle of mutual recognition as applied in the field of judicial cooperation in criminal matters in the EU1 in light of the findings of the Court of Justice concerning the European Investigation Order (EIO). According to the functions of the EIO, established with Directive 2014/41/EU, the competent (i.e.,

1 Laid down in Articles 82 to 86, Chapter IV, of the Treaty on the Functioning of the European Union (TFEU)—that can be depicted as a long-term commitment to the benefit of the Members States involved, since it allows more efficient and smoother ways to curb criminal actions that might endanger or undermine the (personal or economic) rights of citizens. Judicial criminal cooperation (JCC), therefore, may entail positive effects on substantive rule of law, represented by the safeguard and fulfillment of fundamental rights. For more details, see Fijnaut (2019), Rozée et al. (2018), Mak et al. (2018), Aprile and Spiezia (2009), Pasquero (2007) and Tizzano (1996).

S. Busillo (✉) Department of Legal Sciences, University of Salerno, Fisciano, Italy e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 T. Russo et al. (eds.), Solidarity and Rule of Law, European Union and its Neighbours in a Globalized World 9, https://doi.org/10.1007/978-3-031-29227-9_14

263

264

S. Busillo

issuing) authority of a Member State is entitled to demand investigative measures in another Member State for the purpose of obtaining evidence. However, as will be shown, this does not come without any condition to fulfil. As broadly recognized, mutual recognition as formally foreseen in Article 82 TFEU, is not a principle that is new to the Area of freedom, security and justice,2 but was initially developed in the internal market (Cassis de Dijon logic)3—in accordance with mutual trust built around common values and safeguards granted in Member States’ legal systems—implying direct recognition of judicial decisions from other Member States, with non-recognition as an exception.4 In this regard, the principle has specific characteristics, given the implications for fundamental rights and national sovereignty, and the extent to which it needs to be facilitated by the harmonisation5 of substantive and procedural criminal law. Nonetheless, the fight against crime through judicial cooperation may lead to negative effects on substantive rule of law6 regarding the rights and freedoms of investigated or convicted individuals in particular, in cases of disproportionate and unduly application of judicial criminal cooperation tools, such as the European Arrest Warrant (EAW) or the European Investigation Order (EIO). However, this chapter considers that another principle might govern judicial criminal cooperation (JCC), even if not expressly recognized in the Treaties. In particular, we will investigate the hypothesis of solidarity, a constant in EU law, extended to the JCC. In fact, solidarity has different roles in a wide array of fields, ranging from constitutional and institutional functions to others of a more substantial nature.7 From such different dimensions of solidarity, ensues the argument that it also may be perceived as a cross principle8 expanding to sectors not expressly ruled by the principle under scrutiny. Furthermore, JCC-driven solidarity assumes that it must comply with the existing framework of fundamental rights. In this sense, we will focus on the application of disproportionate or unduly judicial criminal cooperation tools that would jeopardise 2

A comprehensive description of the Area can be found in Di Stasi and Rossi (2020). Janssens (2013). 4 Bay Larsen (2012). Cf. Lenaerts (2015) and Satzger and Zimmermann (2008). 5 See Andersson (2006). Cf. De Hoyos Sancho (2008). 6 For a such definition, see Fuller (1963), p. 210; Dworkin (1985), pp. 11–13; Bingham (2011), p. 66 ff. Cf. Craig (2005); Mitsilegas (2016), pp. 109–128. 7 With respect to the Treaties, solidarity represents a value, a principle or an objective. It is true that it does not appear expressly amongst the proper values mentioned in Article 2 of the Treaty on the European Union (TEU). Yet, it is mentioned in the Preamble of the Charter of Fundamental Rights among the indivisible and universal value on which the European Union is founded (human dignity, freedom and equality), with a generic desire to intensify solidarity. See European Court of Justice, Conclusion of Advocate General Bot (26 July 2017), C-643/15 e C-647/15, Slovak Republic and Hungary v. Council, para. 19. In the subsequent judgment, however, the Court of Justice was not of the opinion of holding this paragraph down. Cf. Schiek (2020). This conception is then further expressed in solidarity as an objective that the Treaties have made their own—as Article 3 TEU clearly shows. 8 Dagilyté (2018), p. 61 ss.; Küçük (2016), p. 967; Klamert (2014), p. 35. 3

Mutual Recognition in EU Judicial Criminal Cooperation and. . .

265

substantive rule of law, especially with respect to the judicial independence dilemma. After some brief remarks concerning the relationship between the principle of mutual recognition and solidarity, we investigate the findings of the Court of Justice of the European Union (ECJ) to ensure that the JCC tools—with particular emphasis on the EIO—are employed in such a way as to not harm fundamental rights. One of the main concerns is the independence of the issuing authority of an EIO strictly connected to judicial independence as a guarantee for the respect of the rule of law.

2 The Relationship Between the Principles of Mutual Recognition and Solidarity in Judicial Criminal Cooperation Chapter IV TFEU on judicial cooperation in criminal matters makes no specific mention of solidarity, even if found in other areas such as external action, security, immigration, and energy.9 However, several factors contribute to the recognition of solidarity among the principles underlying JCC. First, the EU legal system, and the Treaties in particular, are rife with the term solidarity, with the potential result (as far as we are concerned here) that Chapter IV TFEU is implicitly ruled by this value/principle. It is precisely ‘the vagueness’10 of the solidarity concept that renders it versatile and adaptable to different meanings, in this case strongly linked to mutual recognition and sincere cooperation. The reduction of divergences through harmonisation (Articles 83 and 84 TFEU), the provision of mutual assistance through mutual trust and mutual recognition of judicial decisions (Article 82 TFEU), as well as the creation of common instruments (Articles 85 and 86 TFEU), are all essential aspects laid down in EU JCC. In particular, for Habermas, solidarity is one of the fundamental aspects of mutual recognition, the flipside of universalistic justice.11 At the same time, mutual recognition, which constitutes the ‘cornerstone’ of judicial cooperation in criminal matters, is itself based on mutual trust and on the rebuttable presumption that other Member States comply with EU law and, in particular, fundamental rights.12 Mutual recognition, nonetheless, is strongly interconnected with the sincere cooperation principle (Article 4, para. 3 TEU),13 whose application is required to actually bind States to mutual recognition. In judicial cooperation in criminal

9

Arts. 21, 24(3), 42(7) TEU; Arts. 6, 80, 122, 194, 222 TFEU. Schettini (2020), p. 295. 11 Habermas (1989). 12 European Court of Justice (Grand Chamber), Judgment (8 December 2020), C-584/19, Staatsanwaltschaft Wien (Falsified transfer orders), para. 40. 13 European Court of Justice, Judgment (10 December 1969), 6/69 and 11/69, Commission v. France, para 16: ‘solidarity which is at the basis of [. . .] the whole of the Community system 10

266

S. Busillo

matters, the former third pillar, it is always the State, in a bond of solidarity with other Member States, that remains the ‘director’ of the European integration process, but—by virtue of a subsidiarity ratio in the delegation of competences—it is the national judiciary system that is entrusted with putting into practice this bond of solidarity, consisting in the application of the mutual recognition principle.14 Emblematic in this sense is the Pupino case, where the Court of Justice admitted that ‘it would be difficult for the Union to carry out its task effectively if the principle of loyal cooperation [. . .] were not also binding in the area of police and judicial cooperation’ to prescribe the duty of consistent interpretation for framework directives, where harmonization enshrined in Article 83 TFEU is the leading objective.15 In the same judgment, the Court held that solidarity must be demonstrated in relations between Member States adhering to the Communities ‘supplemented by the policies and forms of cooperation established by that treaty’.16 This drives the notion that solidarity, as observable in the Treaties, is underpinned by sincere cooperation, the same principle governing Chapter IV TFEU. Also supportive of this conclusion is that in the case of mutual recognition, ‘specific coordination, loyalty, for instance, is not primarily an obligation imposed on the Member States in their relation to the Union institutions, but creates obligations amongst the Member’, defined as ‘horizontal loyalty’, similarly to mutual recognition of judicial decisions.17 Over time, solidarity has been seen ‘as an ideal to be upheld, expressing a horizontal bond of unity between the Member States’.18 Furthermore, the principle of sincere/loyal cooperation is by some deemed a ‘stand-alone’ principle that does not need a stated provision to a certain matter to apply,19 therefore showing a certain capacity to be anchored to mutual recognition, similarly to solidarity. We can maintain that, in general, ‘the inspirational culture of the principle of judicial assistance is based on the spirit of solidarity’20 and ‘mentioned in the TEU as a common value and mission of the EU with regard to the mutual relations of Member States, their relations with Third Countries, and relations among all citizens

in accordance with the undertaking provided for in [former, now Article 4 TUE] Article 5 of the Treaty’. 14 Magrassi (2010), pp. 78–80; Toniatti (2010), p. 266; Bergström and Jonsson Cornell (2011), p. 22. 15 European Court of Justice (Grand Chamber), Judgment (16 June 2005), C-105/03, Pupino, para. 42. See also European Court of Justice (Grand Chamber), Judgment (10 February 2000), C-202/97, FTS, para. 51. 16 European Court of Justice, Pupino, cit., para. 41. 17 Klamert (2014), pp. 18, 22. 18 Klamert (2014), p. 37. 19 Cf. Gormley (2008), p. 303. For a different view, see Durand (1992), p. 26. Cf. also, for instance, European Court of Justice (Grand Chamber), Judgment (20 April 2010), C-246/07, Commission v. Sweden, para. 105. 20 Liakopoulos (2019), p. 397; Magen and Pech (2018), p. 245.

Mutual Recognition in EU Judicial Criminal Cooperation and. . .

267

of the Union’.21 For these reasons, one might suggest that Member States are bound, through the sincere cooperation principle, to mutual recognition which is also a form of explication of the solidarity principle, creating an unwritten—yet existent— obligation of unity and mutual support between judicial authorities. Nevertheless, thanks to the interpretative efforts of the ECJ, mutual recognition requires meeting some specific ‘conditions’ to be effectively applied also with specific reference to the investigation tools.

3 Relativity of Mutual Recognition: A ‘Conditional Solidarity’ Application First, mutual recognition cannot be applied according to an irrebuttable presumption, instead ‘rebuttable’ and relative22 to safeguarding individuals against the peril of unjustified violations of human rights. Indeed, this is a risk clearly identified by the ECJ and its case law, which promptly put forward boundaries to JCC tools based on careful case-by-case controls. There is an actual conditionality on exercising mutual recognition to prevent abuses detrimental to the rights of individuals. However, there is some skepticism from scholars in terms of setting ‘concrete’ conditions as ‘it is difficult to come up with tests that, on the one hand, respect the duty of loyal cooperation and the presumption of mutual trust vested in the protection offered by the issuing Member States and, on the other hand, make the Court act as a constitutional court’.23

Giannakopoulos (2017), p. 14: ‘we look more closely at the legal definitions of solidarity within the primary and secondary legal frameworks of the EU, we are struck by the fact that not only integration but also its underpinning principle, solidarity, is characterized by a variety of definitions’. 22 Directive 2014/41/EU of the European Parliament and of the Council (3 April 2014) regarding the European Investigation Order in criminal matters, O.J. L 130/1, recital 19. Cf. Ruggeri (2014). 23 Cf. Bard and van Ballegooij (2018), p. 363. 21

268

S. Busillo

Even though the ECJ’s narrative has mainly focused, and with good reason, on the European Arrest Warrant (EAW),24 its recent decisions on the EIO25 have shed some light on the conditional suspension of mutual recognition. Similarly to the EAW, the EIO is adopted to swiftly enforce the law and combat crime, thus building up substantive rule of law as stated in the introduction. The EIO is a judicial decision issued or validated by the judicial authority of one EU State to obtain documents of investigations carried out in another EU State for the purpose of collecting evidence in criminal matters, and can also be issued to obtain evidence. Clearly, it is based on mutual recognition, i.e., the executing authority is required to recognize and guarantee the execution of the request made by the other country. Enforcement must be carried out in the same way as if the investigative act in question had been ordered by an authority of the executing State. In fact, the measure provides pre-conditions that must be fulfilled: (1) the issuing authority has to verify if it is necessary and proportionate for the purposes of the proceedings at stake and take into account the rights of the suspected or accused person; (2) the requested measure has to find an equivalent in a similar domestic case (principle of equivalence).26 Pursuant to Article 11 of the EIO Directive, optional grounds for non-recognition or non-execution apply when there are substantial reasons to believe that the execution of the investigative measure would be incompatible ‘with the State’s obligations under Article 6 TEU [ECHR provisions] and the Charter’. Blind acceptance of the EIO, negligently following the mutual recognition and solidarity principles would be a substantial violation of the investigated or convicted person’s right.27 Therefore, solidarity in JCC must be conditioned howsoever.

24

Just think of the Aranyosi, Radu, LM and L and P cases: European Court of Justice (Grand Chamber), Judgment (5 April 2016), C-404/15 and C-659/15 PPU, Aranyosi and Căldăraru, para. 104; European Court of Justice (Grand Chamber), Judgment (29 January 2013), C-396/11 Ciprian Vasile Radu; European Court of Justice (Grand Chamber), Judgment (25 July 2018), C-216/18 PPU, LM; European Court of Justice (Grand Chamber), Judgment (17 December 2020), C-354/20 PPU, L and P. Conversely, a steady basis for the instrument is far from being overlooked by the latest Court’s caselaw: European Court of Justice (Third Chamber), Judgment (16 December 2021), C-203/20, AB and others. For a broader description of the relationship between the EAW and rule of law, see in this volume Di Stasi and Festa, Breaches of the Rule of Law in the EU: What Implications for the Principle of Mutual Trust in the Area of Freedom, Security and Justice?. For more info on the EAW, see Kalb (2005). 25 For more details on this JCC tool, see Heard and Mansell (2011), De Capitani and Peers (2014) and Belfiore (2015). 26 Directive 2014/41/EU, cit., Article 6, para. 1. 27 Rusu (2016), p. 218, believes the protection of rights would be eased by inserting in the Directive a provision to oblige the executing State’s competent judicial body to ensure the defense by an attorney for both the protected person and the person causing a danger.

Mutual Recognition in EU Judicial Criminal Cooperation and. . .

3.1

269

The EIO Issuing Authority in the Interpretation of the Court of Justice: Staatsanwaltschaft Wien, A and Others, HP, Gavanozov

Accordingly, the Court of Justice admitted with the EIO-related case law from 2019 that an incorrect implementation of this tool might unduly harm fundamental rights, such as the right to a fair trial. Indeed, Article 47 CFREU requires EU Member States to respect the right to a fair trial, identified in practical access, within a reasonable time, to competent, independent, and impartial courts of law that can and will administer justice fairly. In any case, there is a general principle that the duty to verify respect for fundamental rights and the rule of law standards rests, first and foremost, on the authorities responsible for issuing or validating a decision to apply criminal jurisdiction across borders, with an assessment of whether EU fundamental rights and the rule of law are respected.28 These rules must be precise and clear in both content and scope, and subject to independent judicial or administrative review.29 Therefore, the issuing authority should ascertain whether the evidence sought is necessary and proportionate for the purpose of the proceedings in order to restrain fundamental rights; whether the investigative measure chosen is necessary and proportionate for the gathering of the evidence concerned; and whether, by means of issuing the EIO, another Member State should be involved in gathering this evidence. The same assessment should be carried out in the validation procedure, where the validation of an EIO is required under the EIO Directive (Articles 6 and 11, supra). On 8 December 2020, in the Staatsanwaltschaft Wien30 case, doubts were dispelled on the competence of the office of the public prosecutor to issue an EIO, even when the latter does not enjoy the status of total independence31 from executive power. The issuing authority, defined by the issuing State’s national law, is entitled to act as an investigating authority in criminal proceedings with competence to order the gathering of evidence. Due to its crucial role, the issuing authority must meet the requirement of independence ‘justified by the serious interference with the fundamental right’.32 Accordingly, a ‘reduced risk’ to the investigated person’s rights might condone the absence of total independence of procurators, determining a broader application of the measure. In particular, the legitimacy of domestic

28

González Fuster (2017). Cf. La Chioma (2019). One of the latest decisions to this end was European Court of Justice (Grand Chamber), Judgement (2 March 2021), C-746/18, H.K. v. Prokuratuur. Also, individuals must be granted to seek access to remedies in case of unlawful limitations, both within the EU and in third countries, see of the European Court of Justice (Grand Chamber), Opinion No. 1/15 (26 July 2017), EU-Canada PNR Agreement. 30 European Court of Justice (Grand Chamber), Judgement (8 December 2020), C-584/19, Staatsanwaltschaft Wien. 31 Cf. Rosanò (2021) and Falcone (2021). 32 European Court of Justice, Staatsanwaltschaft Wien, cit., para. 28. 29

270

S. Busillo

prosecutors to issue EIOs, in general terms and unlike the EAW, is not hindered by Directive 2014/41, as the EIO ‘may be intrusive, in so far as they entail an interference, in particular, with the right to privacy or the right to property of the person concerned’ but ‘unlike a European arrest warrant, is not such as to interfere with the right to liberty of the person concerned’.33 At the same, in the A and Others34 case, the Court maintained that, if a public prosecutor of a Member State, regardless of any relationship of legal subordination that might exist between him or his office and the executive of that Member State, is exposed to the risk of being directly or indirectly subject to orders/individual instructions from the executive when adopting an EIO, then said prosecutor can be qualified as a ‘judicial authority’ and ‘issuing authority’.35 This is stated acknowledging ‘the textual, contextual and teleological differences noted in the foregoing considerations between Framework Decision 2002/584 [EAW] and Directive 2014/ 41’36 and the fact that there is a ‘a set of safeguards both at the stage of the issuing or validation and of the execution of the European investigation order, whose aim is to ensure the protection of the fundamental rights of the person concerned’.37 The Court essentially does not rule on the problem of the issuing authority’s independence, being of the view that—also considering the different fundamental rights at stake38 (similarly to Staatsanwaltschaft Wien)—the pre-conditions of the EIO, as well as the existence of controls to declare its non-recognition or non-execution, allow stretching the ‘issuing authority’ notion. On the other hand, the general rule set out by the twin decisions of December 2020 implies resiling whenever an abuse occurs, and this is when conditional solidarity in the JCC manifests. In fact, the recent judgment of December 2021 in the HP39 case outlines a relevant principle for judicial cooperation according to which the EIO ‘may not replace’ the requirements and safeguards applicable in the issuing State (Bulgaria in the case at issue)—‘improperly issued by a public prosecutor’—while, in a similar domestic case, the judge has exclusive competence to adopt an investigative measure

33

European Court of Justice, Staatsanwaltschaft Wien, cit., para. 73 European Court of Justice (Grand Chamber), Judgment (8 December 2020), C-584/19, A and Other. This is a risk identified by the European Parliament Resolution (25 November 2009) on the Communication from the Commission to the European Parliament and the Council – An area of freedom, security and justice serving the citizen – Stockholm programme, para. 117, urging future EU action to be deferential to rule of law and fundamental rights; cf. Nascimbene (2009). 35 European Court of Justice, A and Others, cit., para. 74. 36 European Court of Justice, A and Others, cit., para. 74. 37 European Court of Justice, A and Others, cit., para. 69. 38 European Court of Justice, A and Others, cit., para. 73. 39 European Court of Justice (Four Chamber), Judgment (16 December 2021), C-724/19, HP, paras. 42 and 51. Cf. Gualazzi (2010). 34

Mutual Recognition in EU Judicial Criminal Cooperation and. . .

271

seeking to obtain such data.40 This thought is corroborated by a notable Court interpretation of the principle of equivalence: an EIO ‘cannot be issued by a public prosecutor where that public prosecutor not only directs the criminal pre-trial procedure, but also brings the public prosecution in subsequent criminal proceedings’,41 requiring in any case a minimum level of independence of the issuing authority in order to bypass the fixed safeguards of human rights. Also in late 2021, in the Gavanozov II42 case, the Court took the view that, when domestic legislation of a Member State issuing an EIO does not provide any legal remedy (access to a court, right to an effective remedy) against EIO issuance concerning carrying out searches and seizures as well as the organization of a hearing of testimonies by videoconference—as requested by the ‘equivalence principle’ set out in Article 14 of the EIO Directive43—it is considered non-compliant with EU law. In this sense Advocate General (AG) Bobek argued that ‘equivalence’ within the meaning of Article 14 is logically only acceptable if the situation in the issuing State, such as Bulgaria, is itself compatible with the minimum standards for the protection of fundamental rights, as required by the CFREU and ECHR.44 Additionally, one might believe that if EU law were to limit itself to prescribing a mere abstract equivalence in question, without anchoring it to any minimum standard, only a certain unsatisfactory level of protection would be ensured. The need for judicial review in relation to the issuance of the EIO, in fact, would only emerge in situations in which it is provided for by the law of the State concerned in relation to a similar domestic procedure. Precisely, agreeing with the AG Conclusion,45 the Court remarked that the issuance of an EIO—in relation to which there are serious reasons 40 European Court of Justice, HP, cit., para. 51. The same conclusion is reached in European Court of Justice, Opinion of the AG Campos Sánchez-Bordona (20 May 2021), C-724/19, HP, paras. 58–62. 41 European Court of Justice, HP, cit., paras. 40–45. The problem of equivalence of national criminal procedures has been highly perceived by the scholars such as Pérez Souto (2016): ‘it is crucial in order to ensure an effective implementation of the EIO that such aspect is as clear and detailed as possible in each Member State taking part in this instrument’. 42 European Court of Justice (First Section), Judgement (11 November 2021), C-852/19, Ivan Gavanozov (II). It is worth noting that on 24 October 2019, the ECJ delivered its first judgment interpreting Directive 2014/41/EU regarding the European Investigation Order in criminal matters in case Gazanov I where it was asked about the same preliminary ruling but eventually ‘reduced the dispute in the main proceedings to a mere formal question’ according to Wahl (2020); cf. Borgia (2020). 43 This provision has been seen as a positive innovation by Ambos (2018); however, Fauchon (2021), pp. 44–45, deems it as ‘unsatisfying regarding the ability of the defence to effectively challenge an EIO’ since ‘suspects are not offered a general right to request the issuing of an EIO across the EU. On the contrary, it would depend on whether the national law [of the executing State] grants suspects a right to request the execution of an investigative measure in domestic proceedings’. 44 European Court of Justice, Opinion of AG Bobek (29 April 2021), C-852/19, Ivan Gavanozov (II), paras. 28, 34, 50. 45 European Court of Justice (Opinion of the AG), Gavanozov II, cit., para. 84: ‘[it] does not mean that all responsibility can be shifted towards the executing Member State. Again, sincere

272

S. Busillo

to believe that its execution would involve a violation of Article 47 CFREU and should therefore be refused by the executing Member State—is not compatible with the principles of mutual trust and sincere cooperation.46 Needless to say, it is up to the issuing Member State to create the conditions for the executing authority to usefully grant assistance in accordance with EU law.47 Otherwise, we contend again, a suspension of mutual recognition and its solidarity tools must be put in place to preclude the State from issuing an EIO due to the evident disregard and violation of mutual trust, as occurred with Bulgaria in the absence of equivalent legal remedies. The implication would be the creation of a ‘two-speed’ judicial cooperation system in EU, even going beyond a case-by-case analysis, since it means entirely excluding a Member State from using an EIO, forcing it to make use of the traditional mutual legal assistance procedure.48 Even so, some scholars believe the Court could have been more unrestrained in clarifying what persons affected by an EIO can do if ‘there is no court in the issuing State, which examines the issuance of an EIO and takes an opposing position (to the law enforcement authorities), or if the issuing authorities ignore any justified objections against fundamental rights infringements in their country’.49 In addition, the Court could have found that Bulgaria implemented the EIO directive incorrectly, since it provides the right to legal remedy in a constricted manner in relation to the scope of an EIO.50 In any case, scholarly common sense can be summarized in the sentence ‘mutual recognition is a privilege; it cannot and should not be accorded for free. . .’,51 which everybody should indeed agree upon.

4 Conclusions: The Issue of Judicial Independence as a Guarantee of Solidarity Among Member States (and Acceding States) The hereby brief analysis has clarified that JCC is underpinned by mutual recognition and mutual trust, which can also be deemed a profile of solidarity, or in any case, strongly connected to this principle. Solidarity and mutual recognition in JCC, where the impact on fundamental rights may be the highest, are conditionally applied should specific requirements be satisfied in Member States’ judicial interactions

cooperation (and the mutual trust) are inter-relational. They include, by definition, all parties to the transaction’. 46 European Court of Justice (Judgment), Gavanozov II, cit., paras. 59 and 60. 47 European Court of Justice (Judgment), Gavanozov II, cit., paras. 56–58. 48 Simonato (2020). 49 Wahl (2022). 50 Szijártó (2021). The author, despite of his thoughts, admits it would result in other issues to be dealt with such as the right to contest the issuance of an EIO regardless of the requested investigative measure. 51 Salazar (2019), p. 261.

Mutual Recognition in EU Judicial Criminal Cooperation and. . .

273

under Chapter V TFEU. The evident awareness of the fundamental rights at stake are in particular the fixed requirement of judicial independence highlighted as a compelling pre-condition to prevent the infringement of investigated or convicted persons. The Court of Justice’s case law over the years has indeed confirmed in the first place that cooperation and mutual trust are closely and dialectically connected, discerning with respect to the JCC tools, EAW and EIO, being the latter less detrimental to some rights (freedom) and more intrusive to others (property and privacy). Nonetheless, the Court provided a set of limitations—an effective form of conditionality—grounded in its own interpretation of judicial independence and the ‘equivalence principle’. In fact, should the certain right to fair trial requirements not be fulfilled by an issuing Member State, with judicial independence standing above all, such State would lose the general ability to issue an EIO, as witnessed in Bulgaria in late 2021, in the sense that every subsequent case-by-case control by the executing State would inevitably end up with a rejected application, at least until the issuing State adjusts its legal system and ensures the requirements are met. Therefore, the above statement would seem a kind of evolution of the ‘stretching’ policy on the independence required by issuing authorities to issue an EIO. It also means that the JCC solidarity/mutual recognition tools, such as the EIO, albeit stemming from a superior legal system (primautè of EU Law), cannot overcome the boundaries set by national law to ensure respect of the rights of investigated or convicted persons, nor can they, in light of the prosecution’s purposes, neglect the requirements implied by the right to a fair trial. These principles again—identically to the Prokuratuur52 case that did not however concern the EIO itself, and where the vexata quaestio of judicial independence was similarly debated, as well as Council conclusions ‘Promoting mutual recognition by enhancing mutual trust’ of 201853— elucidate how solidarity/mutual recognition has to be conditioned according to not general rules but a careful case-by-case preemptive analysis. In conclusion, we contend that judicial independence has been elevated to the rank of guarantee in applying solidarity within the EU, as it is perfectly adequate to ensure not only respect of the rule of law (be it formal or substantive), but also the correct implementation of solidarity-driven JCC tools among Member States. This condition, at the same time a guarantee, allows fostering mutual trust. Nonetheless, it 52

European Court of Justice (Grand Chamber), Judgement (2 March 2021), C-746/18, H. K. v. Prokuratuur, paras. 52–26. The case refers to a criminal proceeding in Estonia against H. K., accused of theft and whose accusation was drawn up thanks to an interference of electronic personal data, with doubts concerning the actual independence of the prosecutors. In the case, the ECJ held that the requirement of independence entails that the authority in charge must be able to ensure a fair balance between the needs of the investigation and the fundamental rights (privacy and the protection of the personal data in the case at issue) of the investigated. From this reconstruction of the ‘independence’ requirement, it follows that the authority entrusted with the delicate task of evaluation must necessarily be third to the one formulating the request for the data access, such as the prosecutor office. 53 Council conclusions (13 December 2018) Promoting mutual recognition by enhancing mutual trust, ST/15272/2018/INIT, in O.J. C 449/6, para. 4.

274

S. Busillo

plays a critical role outside of the EU, with respect to relations with third countries or acceding States. Notably, Western Balkan countries are witnessing a form of entrenchment by the EU in terms of the requirements—under Chapters 23 and 24 of the accession negotiations—of absolute judicial impartiality and independence of the executive. Clearly, judicial cooperation has become a relevant feature of accession, now in a stalemate due to the loose adhesion of these countries to the EU’s values. Conversely, this is an issue within the Union, as previously highlighted with regard to Bulgaria, which lags behind with respect to other Member States in terms of safeguards and guarantees, a valid example of internal heterogeneity stemming from a less strict accession process. For this reason, the case of Bulgaria is a true wake-up call to avoid future conditional suspensions of solidarity/mutual recognition in newly acquired Member States, i.e., the Western Balkans, with judicial independence (Chapters 23 and 24) as the pre-condition able to tip the scales in their favor.

References Ambos K (2018) European criminal law. Cambridge University Press, Cambridge Andersson T (2006) Harmonisation and mutual recognition: how to handle mutual distrust. Eur Law Rev 17(3):747–752 Aprile E, Spiezia F (2009) Cooperazione giudiziaria penale nell’ Unione Europea prima e dopo il trattato di Lisbona. IPSOA, Milan Bard P, van Ballegooij W (2018) Judicial independence as a precondition for mutual trust? The CJEU in Minister for Justice and Equality v. LM. New J Eur Crim Law 9(3):1–13 Bay Larsen L (2012) Some reflections on mutual recognition in the area of freedom, security and justice. In: Cardonnel P, Rosas A, Wahl N (eds) Constitutionalising the EU judicial system: essays in honour of Pernilla Lindh. Hart Publishing, Oxford, pp 139–152 Belfiore R (2015) The European investigation order in criminal matters: developments in evidencegathering across the EU. Eur Crim Law Rev 5(3):312–324 Bergström M, Jonsson Cornell A (2011) Interests and actors in European police and criminal justice cooperation. Uppsala Faculty of Law Working Paper No. 6c Bingham T (2011) The rule of law. Penguin Books, London Borgia G (2020) La prima volta dell’ordine europeo di indagine penale dinanzi alla Corte di giustizia UE: strumento nuovo, approccio di sempre. Archivio Penale 1:1–9 Craig P (2005) Formal and substantive conceptions of the rule of law: an analytical framework. Routledge, London Dagilyté E (2018) Solidarity: a general principle of EU law? Two variations on the solidarity theme. In: Biondi A, Dagilytė E, Küçük E (eds) Solidarity in EU law. Edward Edgar Publishing, Cheltenham–Northampton, pp 61–90 De Capitani E, Peers S (2014) The European investigation order: a new approach to mutual recognition in criminal matters. EU Law Analysis (23 March) De Hoyos Sancho M (2008) Armonización de los procesos penales, reconocimiento mutuo y garantías esenciales. In: De Hoyos Sancho M (ed) El proces openal en la Uniòn Europea. Garantìas esenciales, Lex Nova, Madrid, pp 42–79 Di Stasi A, Rossi L (eds) (2020) Lo spazio di libertà sicurezza e giustizia. A vent’anni dal Consiglio Europeo di Tampere. Editoriale Scientifica, Naples Durand CF (1992) Les principes de coopération loyale entre les Etats membres et les institutions, vol 1. Commentaire Mégret

Mutual Recognition in EU Judicial Criminal Cooperation and. . .

275

Dworkin R (1985) A matter of principle. Harvard University Press, Cambridge Falcone A (2021) Indipendenza del pubblico ministero e cooperazione internazionale in materia penale nello scenario giuridico europeo. Eurojus 3:59–80 Fauchon C (2021) European investigation order directive: what about defence rights? Vilnius University Open Series Fijnaut C (2019) Peaceful revolution: the development of police and judicial cooperation in the European Union. Intersentia Fuller LL (1963) The morality of law REVISED EDITION (1977). Yale University Press, New Haven–London Giannakopoulos A (2017) Solidarity: sociological, legal and ethical aspects of a fundamental EU-principle. In: Giannakopoulos A (ed) Solidarity in the European Union: challenges and perspectives. S. Daniel Abraham Center for International and Regional Studies–Tel Aviv University Press, Tel Aviv, pp 11–19 González Fuster G (2017) A security union in full respect of fundamental rights: but how effectively respectful. In: Carrera S, Mistilegas V (eds) Constitutionalising the security union: effectiveness, rule of law and rights on countering terrorism and crime. Centre for European Policy Studies (CEPS), Brussels, pp 87–92 Gormley L (2008) Some further reflections on the development of general principles of law within Article 10 EC. In: Bernitz U, Nergelius J, Cardner C (eds) General principles of EC law in a process of development. Wolters Kluwer, Alphen aan den Rijn Gualazzi A (2010) Lineamenti europei del diritto di difesa. In: Filippi L, Gualtieri P, Moscarini P, Scattati S (eds) La circolazione investigativa nello Spazio giuridico europeo: strumenti, soggetti, risultati. CEDAM, Padua, pp 187–212 Habermas J (1989) Justice and solidarity: on the discussion concerning Stage 6. Philos Forum 21(1):32–52 Heard C, Mansell D (2011) The European investigation order: changing the face of evidencegathering in EU cross-border cases. New J Eur Crim Law 2(4):353–367 Janssens C (2013) The principle of mutual recognition in EU law. Oxford University Press, Oxford Kalb L (ed) (2005) Mandato di arresto europeo e procedure di consegna. Giuffrè, Milan Klamert M (2014) The principle of loyalty in EU law. Oxford University Press, Oxford Küçük E (2016) Solidarity in EU law. An elusive political statement or a legal principle with substance? Maastricht J Eur Comp Law 23(6):965–983 La Chioma F (2019) L’ordine di produzione e di conservazione europeo delle prove elettroniche, in Magistratura Indipendente (6 June) Lenaerts K (2015) The principle of mutual recognition in the area of freedom, security and justice. The Fourth Annual Sir Jeremy Lever Lecture. All Souls College, University of Oxford, pp 1–29 Liakopoulos D (2019) International cooperation, legal assistance and the case of lacking states collaboration within the International Criminal Court. Revista CES Derecho 10(1):374–417 Magen A, Pech L (2018) The rule of law and the European Union. In: May C, Winchester A (eds) Handbook on the rule of law. Edward Edgar Publishing, Cheltenham–Northampton, pp 235–256 Magrassi M (2010) L’Unione europea come spazio di libertà, sicurezza e giustizia: alcune note introduttive. In: Magrassi M, Toniatti R, Zenatti M (eds) Le nuove competenze dell’Unione europea in materia di giustizia. Provincia autonoma di Trento Publisher, Trento, pp 71–80 Mak E, Graaf N, Jackson E (2018) The framework for judicial cooperation in the European Union: unpacking the ethical, legal and institutional dimensions of ‘judicial culture’. Utrecht J Int Eur Law 34(1):24–44 Mitsilegas V (2016) Theorizing internal security from the perspective of the rule of law. In: Bossong R, Rhinard M (eds) Theorizing internal security in the European Union. Oxford University Press, Oxford Nascimbene B (2009) European judicial cooperation in criminal matters: what protection for individuals under the Lisbon Treaty? ERA Forum 10(3):397–407

276

S. Busillo

Pasquero A (2007) Mutuo riconoscimento delle decisioni penali: prove di federalismo. Giuffré, Milan Pérez Souto G (2016) The implementation of the Directive 2014/41/EU of 3rd April 2014 regarding the European Investigation Order (EIO) in criminal matters: the way forward. UNIO EU Law Journal (21 March) Rosanò A (2021) La chimera e il pubblico ministero: considerazioni relative alla giurisprudenza della Corte di giustizia dell’Unione europea e della Corte europea dei diritti dell’uomo in materia di indipendenza del PM. Questione Giustizia 2:74–84 Rozée S, Kaunert C, Léonard S (2018) Police and judicial cooperation policy. Routledge, London Ruggeri S (ed) (2014) Transnational evidence and multicultural inquiries in Europe. Springer, Cham Rusu IM (2016) Issuance and transmission of the European protection order in the European Union. Critical opinions – De Lege Ferenda proposals. Perspect Bus Law J 5(1):214–219 Salazar L (2019) Twenty years since Tampere – the development of mutual recognition in criminal matters. Eucrim 4:255–261 Satzger H, Zimmermann F (2008) From traditional models of judicial assistance to the principle of mutual recognition: new developments of the actual paradigm of the European cooperation in penal matters. In: Bassiouni C, Militello V, Satzger H (eds) European cooperation in penal matters: issues and perspectives. CEDAM, Milan, pp 31–60 Schettini M (2020) Concluding remarks. In: Del Chicca M (ed) New awareness of solidarity in European Union law and beyond. Campano Edizioni, Pisa, pp 293–307 Schiek D (2020) Solidarity in the case law of the European Court of Justice – opportunities missed? In: Krunke H, Petersen H, Manners I (eds) Transnational solidarity. Concept, challenges and opportunities. Cambridge University Press, Cambridge, pp 252–300 Simonato S (2020) Mutual recognition in criminal matters and legal remedies: the first CJEU Judgment on the European Investigation Order. European Law Blog (1 April) Szijártó I (2021) The implications of the European investigation order for the protection of fundamental rights in Europe and the role of the CJEU. Pécs J Int Eur Law 1:66–72 Tizzano A (1996) Brevi note sul ‘terzo pilastro’ del trattato di Maastricht. Il Diritto dell’Unione europea 1(2):391–403 Toniatti R (2010) La razionalizzazione del ruolo dello Stato: spunti e appunti per uno studio sistematico sull’ordinamento composto. In: Reposo A et al (eds) Federalismo, decentramento e revisione costituzionale negli ordinamenti policentrici - Liber Amicorum per Nino Olivetti Rason. CLEUP, Padua Wahl T (2020) First CJEU Judgment on European Investigation Order. Eucrim (12 January) Wahl T (2022) CJEU: Bulgaria (currently) precluded from issuing EIOs due to lack of legal remedies. Eucrim (22 January) Stefano Busillo is Ph.D. Candidate in ‘Legal Sciences’ (International, European and Comparative Law) at the Department of Legal Sciences, University of Salerno. Honorary Fellow and Teaching Assistant in European Union Law, European Union Migration Law, International and European Criminal Law, International Organization Law, EU Common Market Law at the Department of Legal Sciences (School of Law), University of Salerno, as well as in Diplomatic and Consular Law and International Law at the Department of Management & Innovation Systems, University of Salerno. Stefano Busillo spent a traineeship period in Bruxelles working for an Italian law firm dealing with European Law (more precisely Competition and Market Regulation Law). After that, he started off as a Lawyer at the Bar of Salerno. Having developed over the years a deep interest in International and EU Law, he actively serves as a Tutor of the 2022–2023 Jean Monnet Chair Promoting Public Awareness on Enlargement Policy, EU Values and the Western Balkans’ Accession (EUVALWEB), member of the EUVALWEB Legal Observatory as Young Researcher, and Editorial Assistant for the

Mutual Recognition in EU Judicial Criminal Cooperation and. . .

277

online Scientific Journal EUWEB Legal Essays. Global & International Perspectives, as well as a Member of the Research Staff at the International and European Criminal Law Observatory on Cultural Issues, Human Rights, and Security (IECLO-CUHRSE). He also is author of scientific publications on the topics of Digitalization of Criminal Justice, International Organizations and Migration Law.

Albanian Judicial Cooperation with the European Union: A Support of the Implementation of the Constitutional Reform to Ensure a Functioning Democracy Ismail Tafani

Abstract The continuing challenge of the state of Albania with the support of the European Union in the fight against corruption and organized crime was legitimized in 2015 with a constitutional amendment within the limits of the permissible restrictions on human rights. The objective, in line with the demands of the European Union, was to fight corruption by limiting the right of persons implicated in a wide range of crimes from being elected or appointed to high state functions. The reform, delegated to the Prosecutor General’s Office, was to be implemented by creating an electronic register based on cooperation with domestic and foreign judicial authorities, especially in the European Union, considering that most of those subject to the law live outside Albania and mainly in EU countries. Starting from the digital evolution of judicial cooperation in the European Union, this serves as a tool to contribute to the rapid transmission of data for persons living in the EU and subject to the law. The reform was initiated at the EU’s request to Albania in the context of functional democracy guaranteeing the integrity of Albanian representatives. Therefore, this chapter aims to analyze how Albania can achieve functional democracy by focusing on forms of cooperation in implementing the reform while avoiding any obstacle to achieving this goal despite the fragile will of Albanian institutions.

1 Introduction Albania’s relations with the European Union began immediately after the fall of the communist regime. Since then, Albania’s primary objective has been integration into the European Union, in turn aiming for the integration of all former communist European countries. Although for some of these countries the journey is over, despite the European Union’s continued efforts to integrate the Western Balkans and the challenges these countries face in meeting the membership criteria, the completion of the process seems to have been slowed down by the strengthening I. Tafani (✉) Barleti University, Tirana, Albania © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 T. Russo et al. (eds.), Solidarity and Rule of Law, European Union and its Neighbours in a Globalized World 9, https://doi.org/10.1007/978-3-031-29227-9_15

279

280

I. Tafani

of the rule of law, giving the impression that the criteria can only be met after EU membership.1 The European Union is based on four fundamental freedoms: the free movement of persons, goods, services and capital. These four freedoms are accompanied and facilitated by another related to the movement of criminals and cross-border organized crime, widely mentioned in the doctrine as the ‘fifth freedom’.2 Although starting to enjoy the right to free movement in recent years, since the 1990s, Albanians have taken every opportunity to move to the European Union. In this context, a certain section of Albanian society has become part of this so-called fifth freedom. Some of those who have taken advantage of this fifth freedom have assumed important roles in Albanian politics, calling for radical intervention with regard to the principles of the Albanian Constitution, since ‘The entry and promotion in politics, institutions and administration of individuals with criminal records significantly affected the decline of public trust in representative institutions and functional democracy, the increase of corruption and public frustration, the loss of belief that the country can undertake substantial reforms and make progress in the integration process’.3 Among the countries of the Western Balkans, Albania faces a specific situation that requires fundamental reforms to meet the criteria for EU membership and thus a revision of its constitution. Although the 2015 Constitution did not clarify whether constitutional changes could affect its fundamental principles, a constitutional amendment was introduced that further restricts the right to vote and, in particular, the right to stand for election. In relation to these restrictions, the Albanian Parliament enacted a provision in the 2016 Constitutional Amendments according to which laws revising the Constitution only have to respect procedural aspects in order to comply with the Constitution, but in revising part of the fundamental principles or the core of the Constitution, some limitations have to be recognized even if respecting the procedural aspect of the revision of the Constitution.4 The issue at stake is the European Union’s cooperative role in contributing to establishing a functioning democracy in the candidate country and whether this should be limited to the legislative level or accompanied by judicial cooperation to facilitate its implementation. The question that arises is whether Albanian institutions can implement such reforms without the EU’s cooperation and support, or whether the latter can contribute to the implementation of this law in the digital age.

1

See Tafani (2020), pp. 355–385. See Pellegrino (2016), p. 54. 3 See Krasniqi (2018), p. 5. 4 See Tafani and Tokrri (2021), pp. 22–29. 2

Albanian Judicial Cooperation with the European Union: A Support of. . .

281

2 Adoption of Reform and Constitutional Review Law No. 137/2015 on the revision of the Constitution has set a new standard that departs from some of the other provisions of the Constitution relating to fundamental human rights and freedoms. The need to strengthen the rule of law dictated one of the most important constitutional changes in Albania’s political pluralism, directly affecting the principles and fundamental human rights and freedoms, especially related to rehabilitation after serving a criminal sentence and the right to vote and stand for election. This was achieved by introducing Article 6/15 of the Constitution that aimed to create a law with a qualified majority vote to prevent the election and appointment of individuals with a criminal record to high public office. Law No. 138/2015,6 which entered into force in application of Law 137/2015, stipulated that anyone wishing to stand for election or to be appointed to a leading position in a State agency must fill in a form describing his or her background and defining his or her integrity. The Prosecutor General’s Office was tasked with verifying the accuracy of the self-declaration of candidates running as members of Parliament or senior civil servants, then creating a database of the verified entities. As regards the criminal background of individuals in Albania seeking election or appointment to leading positions, the Prosecutor General’s Office was able to monitor their integrity without difficulty, but the situation was complicated by checks on travel or previous temporary residence outside the country, which required cooperation in particular with European Union countries. Therefore, the implementation of this law, which the US and the European Union insisted on, would be supported by the EU, as the potential subjects to be checked mostly lived in these countries. Although the Albanian political parties agreed not to request a constitutional review of Law No. 138/2015, a request was made to repeal certain articles of this law. The Albanian Constitutional Court rejected the request, as it did not recognize the rationae personae illegitimacy of the subject.7 In so doing, the Constitutional Court implicitly accepted the constitutionality of the amendments relating to non-candidacy and non-eligibility.

5 Law No. 137/2015, ‘on some changes and additions to Law no. 8417 of 21 October 1998, ‘Constitution of the Republic of Albania’, as amended. According to this Law for the amendment of the Constitution, in Art. 1 it is determined that after Art. 6 of the Constitution of Albania is added Art. 6/1 which establishes some deep restrictions on the right to be elected with this content: ‘The election, appointment or exercise of a public office in one of the bodies provided for in this Constitution, or established by law, notwithstanding the provisions made in the other provisions of this Constitution, if circumstances affecting the integrity of the public official are verified, according to the conditions and rules established by law of approved by three-fifths of all members of the Assembly’. 6 Law No. 138/2015, ‘on guaranteeing the integrity of persons elected, appointed or exercising public functions’. 7 Albanian Constitutional Court, Decision, No. V-24/17 (23 March 2017).

282

I. Tafani

In the Albanian Constitution, the change is related to non-eligibility, while in the law ‘on the implementation of the constitutional changes’ it starts with non-candidacy followed by non-eligibility. On this point, ‘inviolability is included in the type of ineligibility’ in the broadest sense, meaning absolute electoral incapacity or the absence of a substantive subjective condition for access to office, which precludes exercising the passive right to vote and nullifies any possible choice. Ineligibility in the strict sense (or ‘proper sense’) refers to the existence of one of the cases provided for by law, which, despite the conditions for eligibility, is nevertheless a reason for impeding the establishment of a valid electoral relationship.8 With regard to non-candidacy, we refer to the Italian Constitutional Court, which defined it as a situation in which in light of a judgment of moral unworthiness a candidate is ineligible to hold certain offices.9 These constitutional changes were essentially the first necessary step in the constitutional reform of the judicial system in Albania. With these amendments, the Albanian Parliament was forced to set important standards for its members, starting with the fight against corruption and organized crime. In essence, both reforms were aimed at combating corruption and the penetration of organized crime at high levels of government, increasing public confidence in the governance and judicial systems, a necessary condition for Albania’s integration into the European Union.10

3 Guaranteeing the Integrity of Albanian State Representatives to Meet the European Union Membership Criteria The right to be elected is a universal right enshrined in many international instruments and fundamental laws. In Albania, the right to stand for election is guaranteed by international acts ratified by the Republic of Albania and its Constitution. The right to be elected was determined by the right to vote, precisely as exercised in Albanian political pluralism. However, the right to vote and, above all, the right to be elected, as provided for in the Constitution, like any other right, recognizes some limitations related to age and mental competence.11

8

See Rivosecchi (2011), p. 4. Italian Constitutional Court, Judgement, No. 118/1994 (23 March 1994). 10 See Tafani (2017), pp. 53–63. 11 Law No. 8417/1998 (22 November 1998), ‘Constitution of the Republic of Albania’ in its version of 1998, defined in Art. 45 the exercise of the right to vote and to be elected with the restrictions that are widely made to this right according to this definition. Art. 45: ‘1. Every citizen who has reached the age of eighteen, even on election day, has the right to vote and to stand for election. 2. Citizens 9

Albanian Judicial Cooperation with the European Union: A Support of. . .

283

Apart from the addition of Article 6/1 to the Albanian Constitution, Article 45 approved by Law No. 137/2015 states, ‘In exceptional and justified cases, the law may provide for restrictions on the right to elect citizens serving a sentence’. Pursuant to this, Law No. 138/2015 imposed further restrictions. To protect the right to vote, the Albanian Helsinki Committee appealed to the Constitutional Court to revoke some of its articles as incompatible with the Constitution. The Constitutional Court, referring to the jurisprudence of the European Court of Human Rights rejected the request, finding that these limitations did not conflict with Articles 17 and 45 of the Constitution, and Article 3 Protocol No. 1 of ECHR.12 However, ‘These limitations seem to go beyond the normal constraints attached to the implementation of a positive right. Although there are some principles related to the rehabilitation of convicted persons clearly expressed in the Constitution or the Criminal Code, it seems that these principles are not sufficient for a dignified rehabilitation of a representative figure or senior state official. This situation can be described as a ban on persons who have been convicted of the commission of facts, the gravity of which indicates a mismatch between the criminal responsibilities given to them and the fragility of the interests underlying the munus publicum’.13 Although a decline in the professional and political level of Albanian representatives in Parliament has been observed for years, it has never been the case that the values associated with human dignity were overturned to the extent where someone’s criminal past deserves respect and finds support from the people as a passive electorate. Albania’s transition took place in several phases, starting with the establishment of political pluralism in the 1990s, ostensibly based on the dignified and free exercise of the right to vote and to stand for election. This transition was accompanied by the mass emigration of Albanians, mainly to European Union countries, but also beyond. The international criminal activities of Albanian criminal organizations, which are carried out mainly in European Union countries within the framework of international cooperation between criminal organizations, are an obstacle to the democratic development of Albanian society and to integration into the European Union, in which, in accordance with the provisions of the Treaties of the European Union, Albania must also have its place. If criminal activity has been an obstacle to Albania’s integration into the European Union, and law enforcement agencies, in cooperation with foreign judicial authorities, have removed or at least fought against this obstacle, then it is a problematic battle that must be fought outside the context of criminal activity. Although the decline in the level of representatives started in the early 1990s, in 2015 the issue was no longer the level of representatives, but their integrity. In Albania’s long transition towards meeting the criteria and standards for European

declared by a final court decision mentally incompetent are excluded from the right to vote. 3. Convicts who are serving a sentence of deprivation of liberty have only the right to choose’. 12 Albanian Constitutional Court, Decision, No. V-43/17 (5 June 2017). 13 See Rolli (2017), p. 136.

284

I. Tafani

Union membership, one of the obstacles has been the high level of corruption in the administration and especially among political representatives. Albania’s political pluralism seemed in danger of moving from defining corruption according to the Penal Code as a relationship of illicit gain with a certain reward to legitimizing this phenomenon, given that there were individuals with a criminal past in Parliament who were clearly seeking the protection that logically follows from being representatives of the people.

3.1

Implementation of Functional Democracy in Albania According to the Italian Model, Analysis of International Institutions and the Role of Political Parties in Albania

As stated, this justified a reform that would specifically define the elements that limit the right to stand for election, going beyond the normal provisions of these limitations. This took place after a wide parliamentary and extra-parliamentary debate in 2015, when the Albanian Parliament approved Law 138/2015 on the prohibition of candidacy of a broad category of entities that, due to their past, could benefit from public representation to the detriment of this interest. Article 1 of Law 138/2015 defines its purpose and objective, establishing the need to ensure public confidence in the functioning of State bodies and in the democratic scrutiny of Parliament.14 In fact, the law is not only limited to guaranteeing the integrity of the elected representatives of the people through exercising the fundamental right to vote and to stand for election, but also to the representatives appointed or elected by Parliament for important constitutional and legal institutions. In the context of this study, the most relevant is the consideration of centrally and locally elected representatives, i.e., members of Parliament and mayors, as their position is defined by a fundamental constitutional right. The restriction of constitutional rights has emerged as a mechanism to pursue the path of integration into the European Union, within the framework of the Italian model of the fight against corruption and illegality in public administration, the so-called ‘Severino Law’. The Italian Constitutional Court ruled on this law in 2015 with Decision 236/2015 and seems to have resolved one of the most controversial aspects of Legislative Decree 235 of 2012, i.e., the retroactivity of the norms introducing new grounds for not standing for election.15 Indeed, on 17 June 2021, the Strasbourg Court ruled in favor of these restrictions with a final decision of inadmissibility in Galan v. Italy,16 and a decision of See Law no. 138/2015, ‘on guaranteeing the integrity of persons who are elected, appointed or exercise public functions’ Art. 1. 15 See Marini (2016), p. 1. 16 European Court of Human Rights (First Section), Decision (18 May 2021), 63772/16, Galan v. Italy. 14

Albanian Judicial Cooperation with the European Union: A Support of. . .

285

inadmissibility and non-violation in Miniscalco v. Italy.17 The Strasbourg Court adhered to the approach adopted by the Italian Constitutional Court that has consistently stated that the ban on running or dismissal does not constitute a sanction or the effects of a criminal sentence, thus excluding the existence of illegality profiles under Article 7 of the Convention.18 Albania has also drawn attention to the aspects of constitutional rights affected by the law on ensuring the integrity of representatives in the opinions of the Venice Commission. Indeed, in one of its conclusions, the Commission stated, ‘The loss of the parliamentary mandate should also be considered as a restriction on the right to free elections and should be presented as such’.19 In its opinion, the Venice Commission analyzed and looked at countries that provide for restrictions on the right to vote. The case of Italy and the adoption of the ‘Severino Law’ three years before the constitutional changes in Albania was analyzed in particular as a constitutional assessment of this law in light of the principle of the prohibition of punishment without law for having won a seat as a member of the European Parliament. An important element highlighted by the Venice Commission is that it refers to the jurisprudence of the European Court of Human Rights which states, ‘restrictions on the right to be elected should be limited to what is necessary to ensure the proper functioning and maintenance of the democratic regime (. . .). The limitations under consideration should not be seen as limiting to democracy, but as a means of preserving it’.20 Non-candidacy is conceived by the legislator as a ‘very specific cause of ineligibility’ which is related to the sentences, or preventive measures, for crimes that create social alarm.21 Moreover, the relationship between the elected and the electorate goes beyond the guarantees that the State authority must provide, with a significant impact on the limitation of the constitutional right with the ultimate aim of the free election of a representative. Whether they fully respect the principle of representative democracy cannot be dictated to them in the election of their representative. It should be noted that the need to safeguard the proper management of the State apparatus and public funds requires, in addition to the election of electors, the prior selection of subjects who possess certain moral qualifications and political capacity, and this cannot be done with legislature alone but by the political parties themselves through codes of ethics with stricter limits on candidatures for public office.22

17 European Court of Human Rights (First Section), Judgment (17 June 2021), 55093/13, Miniscalco v. Italy. 18 See Brambilla (2021). 19 See Opinion No. 807/2015 of the European Commission for Democracy Through Law (Venice Commission), Report on Exclusion of Offenders from Parliament, p. 33, para. 171. https://www. venice.coe.int/webforms/documents/default.aspx?pdffile=CDL-AD(2015)036cor-e. 20 Ibid., p. 28, para. 140. 21 See Rolli (2017), p. 137. 22 See Bevilacqua (2013), p. 32.

286

I. Tafani

In the Albanian political context, despite three decades of political pluralism, the representatives seem to have failed to define values that reflect the principle of democracy and respect of the rule of law. It seems unlikely, therefore, that the search for balance would go beyond further restrictions on the right to vote and, above all, on the right to be elected. The political parties in Albania, although initiating and supporting the law, have not taken steps to adapt their statutes to fulfil the purpose of the law and to ensure the integrity of their members, but have used the law to accuse each other of having individuals with criminal records in their ranks.23 This initiative of the political parties, like all other reforms, is dictated by the European Union’s constant demands to consolidate a functioning democracy in Albania. It is no exaggeration that the legislative initiatives in Albania are, in the simplest case, welcomed by the European Union, and in the most typical case, dictated by the European Union. In the most extreme case, they are accompanied by EU ad hoc institutions, as in the case of the international operation to monitor the vetting process of judges and prosecutors in the Republic of Albania, as provided for in Article B of the Annex to the Albanian Constitution. In the case of judicial reform, the European Union decided to monitor its implementation, noting that Albanian institutions cannot succeed without cooperation. The logic of Albanian political parties seems to be more about the values they can receive from the people than the values they should transmit to them. This is indeed the conclusion that emerges from the reports of international organizations monitoring the electoral process in Albania stating, ‘Some interlocutors of the OSCE/ ODIHR expressed concern that individuals with criminal backgrounds still played a significant role in the campaign, such as candidates or as supporters’.24 Thus, in the decades of political pluralism in Albania, the rule of law seems to have been the main enemy of the political power deriving from the right to vote. If Albania’s challenge in the context of integration into the European Union remains the consolidation of the rule of law, then this challenge cannot be met without sacrifices, which in this case require the urgent need to be governed by the strict rules of the principle of democracy. Rules that will have to guarantee the integrity of the institutions of the State by guaranteeing the human integrity of the representatives elected by the people, elected by Parliament or appointed by its representative. In conclusion, ‘Political theology teaches that when conditional decisions, inspired by particular or partisan logic risk threatening the general interest that makes a community cohesive political, salus rei publicae suprema lex esto, the salvation of the Republic is the only law that must be respected’.25

23

See Krasniqi (2018), p. 69. OSCE/ODIHR Election Observation Mission Final Report, Warsaw (28 September 2017), p. 13. https://www.osce.org/files/f/documents/2/d/351226.pdf. 25 See Morrone (2013). 24

Albanian Judicial Cooperation with the European Union: A Support of. . .

287

4 Implementing the Reform Is the Real Challenge in the Albanian Reality and the Need for Comprehensive Cooperation Having considered the constitutionality and the need for radical reforms in Albania, we next analyse the effectiveness and implementation of these reforms and relate them to the specific Albanian reality. The legal changes to ensure the integrity of representatives and senior civil servants in this context would be based primarily on international cooperation. As mentioned, while a criminal ‘past’ in the territory of the Republic of Albania is easily verifiable, the criminal past of candidates outside the Republic of Albania to be elected or appointed to high-level positions has and will remain a challenge. Article 8 of Law 138/2015 defines the competent authorities for the verification and implementation of the prohibition of the election or appointment to public office of entities subject to this law. Article 5 provides that such subjects must compile a self-declaration form, and a verification of the information contained therein will be carried out in accordance with the requirements of the appointing institutions. The purpose of the form is for any entity seeking to stand for election or appointment to declare the absence of the grounds that, according to the provisions of the law, prohibit candidature and election. Article 5(2) provides that the refusal or failure to submit the self-registration form shall be grounds for the Central Electoral Commission not to register a candidate in elections or for the competent authority not to appoint him/her in accordance with the law. The indication of false or distorted circumstances in the self-registration form is a criminal offence under Article 190 of the Albanian Penal Code, titled: ‘Falsification of stamps, seals or forms’. This offence is punishable by a maximum sentence of four years imprisonment, in accordance with the first paragraph of the Penal Code, also applicable in this case.26 The legislator has thus demanded that, at all costs, self-verification of candidates to be elected and persons to be appointed to high state positions be carried out in order to increase the level of representation and conscience-based governance of everyone who, in the event of compromise, is punishable by the Penal Code. If the candidates had a clear conscience, then there would be no need to pass a law prohibiting candidacy and election, so this role is left to the institutions that conduct background checks. According to Article 8, Point 3, the verification of self-registration forms must be carried out by the Prosecutor General’s Office that must set up an electronic data system.27 This electronic system, initially functioning as a database, may in the future serve new requirements for vetting candidates for election or appointment

Law No. 7895/1995 (27 January 1995), ‘Criminal Code of the Republic of Albania’, as amended. Law No. 138/2015, ‘on guaranteeing the integrity of persons elected, appointed or exercising public functions’. 26 27

288

I. Tafani

according to the criteria of the aforementioned law. On the other hand, this data system would also allow Albanian law enforcement authorities to respond to the requests of foreign judicial authorities. The digitization of data is already a necessary requirement of the so-called decriminalization law in the Republic of Albania. In the context of international cooperation, this digitization would produce much faster results than a physical database, allowing the application of the law in terms of the inviolability of those subject to the law. Another important element in the implementation of this law is the obligation to submit fingerprints that allow searches to ensure the clear identification of the subject. This is also important because many Albanians who have lived for years in European Union or other countries subject to the decriminalization law changed their name or identity at the time of sentencing. This was the case when the Interpol Rome fingerprint analysis verified that, despite having changed identity, an individual had violated the decriminalization law, albeit not indicating any precedent in the form.28 The Albanian Parliament Decision implementing Law 138/2015 stipulates that each institution must enter the application form in a register with a unique identification number, store and document it electronically, and publish it on its official website.29 In this way, anyone who has information on the ‘subject’s hidden past’ can communicate the name to the institution, which in turn communicates it to the Prosecutor General’s Office for appropriate checks. The Institute of Policy Studies in Albania conducted a questionnaire for professionals and citizens on the so-called decriminalization law and came to the conclusion that prosecution30 has a significant role in implementing this law. Under the decriminalization law, the Prosecutor General’s Office plays a key role and must liaise with foreign authorities to ensure the law is implemented effectively. In this respect, the new age of digitalization has had an impact on almost all areas, including the judicial system in the European Union, which in this context can play an important role in consolidating a functioning democracy in the candidate country. With regard to the implementation of the law, attention is drawn to the fact that anyone who is aware of an inaccuracy in the candidates’ self-registration form is expected to inform the Central Electoral Commission (CEC) in order to launch an in-depth investigation, noting that after several years, the law has already established a practice that is producing tangible results. This ensures that the CEC receives allegations and sends candidates denounced as dishonest for in-depth scrutiny as soon as possible to prevent those who do not meet the criteria for election as public officials from taking office in a timely manner.31

28

See Biba (2021). Decision No. 17/2016 of the Albanian Parliament for determining the detailed rules on the implementation of the prohibitions provided in Law No. 138/2015, ‘on guaranteeing the integrity of persons elected, appointed or exercising public functions’., p. 3. 30 See Krasniqi and Bërdufi (2020). 31 Speech of the State Commissioner for Elections (25 April 2021) at the meeting on the topic Decriminalization Law and implementation challenges in the parliamentary elections. http://kqz. 29

Albanian Judicial Cooperation with the European Union: A Support of. . .

4.1

289

The Need for Judicial Cooperation with the European Union for the Implementation of the Law and Guarantee a Functioning Democracy in Albania

Although the amended Constitution mentions incompetence, the main argument for the implementation of this law is non-candidacy, but as the representative of the Prosecutor General’s Office states in relation to the implementation of the law: ‘This process includes an investigation which, despite being complete and in-depth is of an administrative nature, not of a criminal nature. Juridical relations with foreign countries, meanwhile, provide that we can cooperate with the authorities of other states, only in the case of a criminal investigation. (. . .) It is understandable that the investigation in this case is not criminal, so we collect information of an administrative nature. This makes the process a bit difficult, as many states have no legal basis on where to rely to respond to the request. Since 2016 and until today, there have been many cases where investigations carried out by the decriminalization sector have remained suspended due to non-response, even by the police authorities with whom the state interact with international agreements, as cannot find the legal basis to respond, hence cases are carried over from previous years’.32 In this context, the European Union, as initiator and supporter of the implementation of this law, could enable the conclusion of a specific agreement to facilitate cooperation and the achievement of the results. In essence, in addition to seeking to increase the level of democratic representation of Albanian people, the law is itself a criterion for Albania’s accession to the European Union. The European Union’s support and encouragement for the establishment of a functioning democracy in Albania is needed by both the European Union and the Albanian people themselves. The digitization of the justice system in the European Union can help a candidate country join, as in the case of Albania. This may result from a clear database on individuals with final or non-final convictions who are running or seeking election to representative bodies or appointment to high state positions in Albania. European Union countries have started the process of digitizing the justice system, albeit slowly.33 The justice system in the European Union needs to be further digitalized so that it can strengthen the rule of law in the context of the implementation of important reforms in Albania. Indeed, if the necessary information can be quickly accessed and shared, the enforcement of the law would not create any unfair advantages for those elected or appointed at high levels of State institutions. In this way, public confidence in the administrative authorities would increase, making Albania’s fragile gov.al/wp-content/uploads/2020/12/Fjala-e-plote-e-Komisionerit-Shteteror-te-Zgjedhjeve-z.Ilirjan-Celibashi-ne-tryezen-per-zbatimin-e-ligjit-te-dekriminalizimit.pdf. 32 See Picari (2021). 33 See Communication (2 December 2020) from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Regional Committee, Digitization of taste in the European Union a package of opportunity, COM (2020) 710 final, p. 4.

290

I. Tafani

democracy truly functional. Digitalization and technology therefore play an important role in implementing deep but necessary reforms to strengthen Albania’s functioning democracy, to ensure respect for human rights, and to meet the required criteria for European Union membership. According to the annual reports of the Prosecutor General’s Office on the implementation of the decriminalization law, some cases remain outstanding. For example, the 2019 Crime Report states that 53 checks were carried out from 2016–2018, of which 10 were still pending in 2020,34 while the 2020 Report states that one subject of the decriminalization law has been verified based on the 2018 request and six others based on the 2019 requirements.35 In most cases, the alleged breaches of the decriminalization law have been raised by opposition parties that publicized the breaches, but the Prosecutor General’s Office has taken a long time to verify these allegations. This was the case of a mayor who was publicly denounced by the opposition parties, but the Prosecutor General’s Office only confirmed the allegations after more than a year. At the time, the opposition representative expressed doubts about the effectiveness of the Prosecutor’s work,36 as the decriminalization form did not declare that the mayor had received a judgment from a court in a European Union country, specifically Greece.

4.2

Monitoring the Implementation of the Reform by the European Union as a Guarantee for Its Enactment

Another very important aspect is that since decriminalization found the full support of the parliamentary parties, they seem to be benefiting from the lack of rapid results of the prosecutor’s searches due to the absence of a database that could have facilitated this process. The various reasons include, for example, some decriminalization law entities in the business category have gained popularity in their areas, or because, as often mentioned in political debates, they are easily contacted to buy and sell votes. For political parties aiming for a governing majority, even if at some point they were part of the decriminalization network, at the elections they made contributions to a party that placed them on the list of candidates for parliamentary election. For these

34 Prosecutor General’s Office (2020) Raport i prokurorit të përgjithshëm mbi gjendjen e kriminalitetit për vitin 2019 (Report of the General Prosecutor in Albania on the crime situation for 2019), p. 317. https://www.pp.gov.al/rc/doc/kuvendit_raporti_vjetor_2019_28_3_2020_pp_ perf_1864.pdf. 35 Prosecutor General’s Office (2020) Raportimi i prokurorit të përgjithshëm në kuvendin e shqipërisë ‘mbi gjendjen e kriminalitetit për vitin 2020’ (Summary of the Annual report of the General Prosecutor in Albania ‘On the State of Crime for 2020’), p. 5. https://pp.gov.al/Media/ Njoftime_per_Shtyp/Raportimi_i_Prokurorit_te_Pergjithshem_ne_Kuvendin_e_Shqiperise_Mbi_ gjendjen_e_kriminalitetit_per_vitin_2020.html. 36 See Nga (2021).

Albanian Judicial Cooperation with the European Union: A Support of. . .

291

reasons, it is often suggested that parties have a role to play in decriminalization, as defined by the law.37 According to Article 67 of the Albanian Electoral Code, political parties or coalitions are required to submit to the Central Electoral Commission a multinominal list of their candidates for each constituency no later than 50 days before election day.38 Potential candidates are published well in advance, but parties may publish their lists to filter them before submitting to the Central Electoral Commission. Another immoral yet legal departure from enforcing the law in the selection of candidates concerns political parties that accept as candidate’s family members or relatives of individuals subject to the decriminalization law. This was observed in the parliamentary elections in Albania in 2021, where subjects considered to have violated functional democracy by becoming subjects of the decriminalization law contributed to their circle or family representatives being ranked highly in parliamentary elections.39 Thus, political parties include in electoral lists contacts of subjects of the decriminalization law as parliamentary members, and while not in literal violation of the law, it violates the aim of the law, which is to increase public trust and functional democracy. This is why international cooperation, which goes beyond cooperation and the provision of information to the various institutions, is still a fact, and is particularly demanded by the European Union and US representatives in Albania. Thus, in addition to the need for data digitization and closer cooperation between the competent authorities, the EU and US representatives in Albania call for concrete results.

5 Conclusions The real challenge to political pluralism in Albania remains functional democracy. The implementation of the principle of a functioning democracy is indispensable for Albania’s membership of the European Union. Therefore, to meet the EU’s requirements, the Albanian legislature has implemented fundamental constitutional reforms, such as the 2015 amendments, to increase the integrity of the elected representatives of Albanian citizens and of those appointed to high government positions. The adoption of these reforms has produced some results in the form of the loss of the mandate of the people’s representatives, as they have become subjects of the 37

Instituti i Studimeve Politike (2021) Kandidatët e skeduar për krime/ Emrat te burgjet, por shumë janë në rrezik. http://dekriminalizimi.isp.com.al/index.php/2021/03/14/kandidatet-e-skeduar-perkrime-emrat-te-burgjet-por-shume-jane-ne-rrezik/. 38 Law No. 10-019 (29 December 2008), ‘Electoral Code of the Republic of Albania’. amended. 39 Top Channel (25 July 2021) Djali i Aqif Rakipit merr mandatin e deputetit të PS në Tiranë, ja kujt ia ‘rrëmbeu karrigen’. https://top-channel.tv/2021/04/29/djali-i-aqif-rakipit-merr-mandatin-edeputetit-te-ps-ne-tirane-ja-kujt-ia-rrembeu-karrigen0/.

292

I. Tafani

so-called decriminalization law, following the actions of law enforcement agencies. Functional democracy in Albania can be achieved through decisive constitutional changes which, at first sight, severely limit human rights and democracy, but which, in the case of Albania, seem necessary to consolidate a functional democracy. Albania’s constitutional reform has passed through the filters of the Albanian constitution, with reference to the Italian constitution and under the scrutiny of the case law of the European Court of Human Rights. The constitutional and conventional legitimacy of these constitutional constraints must aim to strengthen the institutions in Albania to implement it in a correct, timely, and rigorous manner. The timely implementation of the law would indeed bring the required results for the purpose of the law itself. As always, the bold legislative changes in Albania have been accompanied by equally bold acts of disregard for these constitutional and legislative changes, which in essence do nothing more than prolong Albania’s integration into the European Union. In the Albanian context, linked to its prolonged transition, and since the reform was a requirement of the European Union, an agreement between the EU and Albania is needed to allow the authorities access to judicial data in EU countries. The digitization of court data itself undoubtedly plays an important role in this respect. On the other hand, the European Union’s cooperative role in the implementation of reforms in Albania in the context of its integration into the European Union requires the accountability of Albanian authorities in the implementation of the reforms. The European Union’s role is clear in monitoring the implementing reforms, but should also include insisting on the morality of Albanian politics as an important element of establishing a functioning democracy in Albania.

References Bevilacqua B (2013) Le Misure Sanzionatorie Amministrative E Penali Della Legge Anticorruzione (L. 6 Novembre 2012, N. 190). Diritto Penale Contemporaneo (28 May):32 Biba D (2021) Në zbatim të legjislacionit të dekriminalizimit. Revista Avokatia 38. http://avokatia. al/revista/24-avokatia-38/97-kushtetutshmeri-38 Brambilla P (2021) Il decreto ‘Severino’ al vaglio della Corte di Strasburgo: escluso il ‘carattere penale’ dell’incandidabilità parlamentare e del divieto di ricoprire cariche elettive regionali. Sistema Penale (8 July) Krasniqi A (2018) Dekriminalizimi: Gjendja, Problematika dhe Pritshmëritë. Instituti i Studimeve Politike, Tirana, p 5. http://isp.com.al/wp-content/uploads/2018/02/DEKRIMINALIZIMIGJENDJA-PROBLEMATIKA-DHE-PRITSHM%C3%8BRIT%C3%8B.pdf Krasniqi A, Bërdufi D (2020) Pyetësor mbi dekriminalizimin: vlerësime të ekspertëve dhe qytetarëve. Decriminalization and transparency in albania: for clean politicians, clean elections and clean public officials Analysis, monitoring, lobbying, awareness-raising, legal and administrative initiatives 2019-2021. Instituti i Studimeve Politike, Tirana, pp 10–11. http://isp.com. al/wp-content/uploads/2020/09/ISP-PYETESOR-MBI-DEKRIMINALIZIMIN-GJETJETKRYESORE-2020.pdf

Albanian Judicial Cooperation with the European Union: A Support of. . .

293

Marini FS (2016) La ‘legge Severino’ tra le Corti: luci e ombre dell’incandidabilità dopo la sentenza n. 236 del 2015. AIC Osservatorio Costituzionale (6 February) Morrone A (2013) Berlusconi decaduto sarà Lei. Rivista il Mulino (9 September). https://www. rivistailmulino.it/a/decaduto-sar-lei Nga EK (2021) Dekriminalizimi/ Alibeaj: Prokurorisë iu desh një vit për ta verifikuar kryebashkiakun e Mallakastrës (Decriminalization / Alibeaj: It took the prosecution a year to verify the mayor of Mallakastra). In City News Albania (15 June). https://www.cna.al/2021/0 6/15/dekriminalizimi-alibeaj-prokurorise-iu-desh-nje-vit-per-ta-verifikuar-kryebashkiakun-emallakastres Pellegrino M (2016) Cap. II. Cooperazione giudiziaria penale nell’UE: dalle origini alla Procura europea. Exeo, Padua, p 54 Picari M (2021) ‘Dekriminalizimi’ prokuroria has pengesa në hetimet jashtë vendit. Voice of America (8 April). https://www.zeriamerikes.com/a/5845580.html Rivosecchi G (2011) Incandidabilità, Ineleggibilità, Incompatibilità con la carica di membro del Parlamento. AIC Rivista 3:4 Rolli R (2017) Le limitazioni al diritto di elettorato passivo: sfumature e criticità. Istituzioni del Federalismo 1:136 Tafani I (2017) Reforma kushtetuese e sistemit të drejtësisë në Shqipëri si condicio sine qua non i integrimit të vendit në Bashkimin Europian, Konferenca e 4-tërt Ndërkombëtare, ‘Problemet dhe Sfidat e transformimit të Shoqërisë Shqiptare drejt Standarteve të Bashkimit Europian’, organized by Albanian University in collaboration, 22 Dhjetor 2017, Tirana Tafani I (2020) L’integrazione dei Balcani occidentali nell’Unione europea tra gli sforzi per il consolidamento dello stato di diritto e le continue illusioni’. Illyrius International Scientific Review Special Edition ‘EU-Western Balkans Cooperation On Justice And Home Affairs’ 14(1):355–385 Tafani I, Tokrri R (2021) Some reflections on the constitutional review in Albania in a comparisonal key. Mediterr J Soc Sci 12(2):22–29

Ismail Tafani is Associate Professor and has a long experience and rich academic and scientific research activity. He has organized many national and international scientific activities within the framework of collaborations with various institutions. Ismail Tafani has referred to many national and international scientific activities and is the author of many academic publications in national and international scientific journals. He has a long experience in teaching and knows management at the University. Ismail Tafani has been engaged in teaching at different times in several Albanian and foreign universities. Thanks to his academic results, in 2002 he received the academic title of Associate Professor. From 2021 he is engaged as a lecturer at Barleti University and from 2015 to 2021 he was the Head of the Department of Legal Sciences and internal lecturer at Albanian University. Ismail Tafani completed his doctoral studies in Italy, at the University of Bologna in June 2014, with the highest rating from the evaluation committee, and graduated in Law from the same University. Ismail Tafani’s field of expertise is ‘Constitutional Law’, a field in which he also completed his doctoral studies, making important scientific contributions in related fields. During his doctoral studies, Ismail Tafani engaged in the academic and scientific research activity of the Department of Constitutional Law of the University of Bologna in collaboration with the best Professors of that department.

Afterword. The New Dimension of EU Security in a Transnational Justice and Governance System Teresa Russo

Abstract The title of this epilogue intends to highlight the results of the research carried out within the Jean Monnet Module ‘EU-Western Balkans Cooperation on Justice and Home Affairs’ and the ensuing insights chronicled in this book. Specifically, the findings highlight the new dimension of security in relation to protecting the EU system and its identity (‘unity in diversity’), albeit seemingly not adequately implemented at the level of EU law. Conversely, a system of justice and governance has emerged at the transnational level within the wider European area. This notion emerges from the analysis of doctrine that has long debated the exercise of public authority in the context of international institutional law, highlighting the impact of State organizations’ action in the life of international economic, social, and political relationships. However, for the purposes of this research, the exercise of public authority in the multilevel system of EU law (international, European, and national) has emphasized a model of cooperation among national public authorities that continue to operate and drive the European integration process, as well as the centralization of these cooperation activities within EU agencies.

The title of this epilogue intends to highlight the results of the research carried out within the Jean Monnet Module ‘EU-Western Balkans Cooperation on Justice and Home Affairs’ and the ensuing insights chronicled in this book. Specifically, the findings highlight the new dimension of security in relation to protecting the EU system and its identity (‘unity in diversity’), albeit seemingly not adequately implemented at the level of EU law. Conversely, a system of justice and governance has emerged at the transnational level within the wider European area. This notion emerges from the analysis of doctrine that has long debated the exercise of public authority in the context of international institutional law,1 highlighting the impact of 1

Von Bogdandy (2008), von Bogdandy et al. (2010), von Bogdandy (2012) and von Bogdandy and Venzke (2014).

T. Russo (✉) Department of Legal Sciences (School of Law), University of Salerno, Fisciano, Italy e-mail: [email protected] © The Author(s), under exclusive license to Springer Nature Switzerland AG 2023 T. Russo et al. (eds.), Solidarity and Rule of Law, European Union and its Neighbours in a Globalized World 9, https://doi.org/10.1007/978-3-031-29227-9_16

295

296

T. Russo

State organizations’ action in the life of international economic, social, and political relationships. However, for the purposes of this research, the exercise of public authority2 in the multilevel system of EU law (international, European, and national)3 has emphasized a model of cooperation among national public authorities that continue to operate and drive the European integration process,4 as well as the centralization of these cooperation activities within EU agencies. The critical issues that have emerged in the implementation of European Union law at the national level, from its founding principles and values up to primary and secondary law, have determined a stalemate in European integration at the political level. Conversely, a complicated ‘technical-legal’ integration process, both in Member States and even more in acceding States, has advanced. For years now, the so-called ‘agencification’5 of EU public administration has affirmed the reconfiguration of EU executive power and the creation of networks in which transnational regulatory networks are ‘fluctuating between levels of governance’.6 EU agencies have contributed to the transformation of the EU’s politicaladministrative order,7 specifically within the European area of freedom, security and justice, and for the purposes of this research, in the management of migration and asylum, in the fight against transnational crimes and judicial cooperation in criminal matters. This conclusion derives from the analysis conducted in this volume showing that by expanding the base of States, EU enlargement has increased heterogeneity among its members, hence not fully reflecting commonality of the values inherent in Art. 2 TEU. In integrating the EU and national legal systems, these States claim the sovereignty of their national law. From the original core of founding States, enlargement has provided member status to countries with very different political, economic, and cultural heritages. This has highlighted the need to identify a new dimension of EU security, and particularly the need to consolidate both internal and external actions based on a common aim, but also respectful of diversity. The ‘fragmentation’ of the EU legal system has in turn resulted in the fragmentation of 2

Delbruck (2003), p. 34. About the multiple aspects concerning multilevel and agencies, see Ongaro et al. (2015) and Trondal and Bauer (2017); whereas, about the delegation of power existent in such multilevel system, see Thatcher and Stone Sweet (2002), Eberlein and Grande (2005), Dehousse (2008), Thatcher (2011), Font (2015), Mathieu (2016a) and Simoncini (2018). 4 Such process is strictly interlinked with the safeguard of independence and autonomy of such authorities, as contended by Christensen and Lægreid (2006), Curtin (2007), Wonka and Rittberger (2010), Yesilkagit (2011), Bach and Ruffing (2013), Danielsen and Yesilkagit (2014) and Bach et al. (2015). 5 Levi-Faur (2011), Egeberg and Trondal (2016), Jordana and Triviño-Salazar (2017) and Nitszke (2018). 6 Plenty of scholars discussed of the real value and functioning of governance in this context. Among the others, see Coen and Thatcher (2008), Eberlein and Newman (2008), Toonen (2010), Hale and Held (2011), Groenleer (2011), Rittberger and Wonka (2013), Boin et al. (2014), Blauberger and Rittberger (2015), Johannessen (2015), Bach et al. (2016) and Mathieu (2016b). 7 Geradin et al. (2005), Hofmann (2008) and Heims (2015). 3

Afterword. The New Dimension of EU Security in a Transnational Justice. . .

297

the actions of Member States, or vice versa, continuous recourse to the mechanism of differentiated integration has determined an ‘integrated differentiation’, and hence a small group of States claiming national sovereignty. This new dimension of the security of the Union finds its raison d'être in the crisis that in the last decade simultaneously affected the principles of solidarity and the rule of law that our research has shown to be entirely interdependent. Indeed, all crises, especially the most recent that have affected the international community and especially Europe in the last decade, have highlighted a different concept and maturity of the principle of solidarity. There is no doubt that the minimum level of solidarity, namely functional to mutual interests, to achieve the common objectives characterizing the birth of the three Communities (the ECSC, the EEC, and the EAEC) moved toward a much more articulated and complex dimension. Here solidarity referred to a common sense of belonging that in the institution of European citizenship promoted ‘civic’ solidarity as a result of a common objective: the European demos not yet well identified. Yet solidarity, within the broader framework of the international order, entails political actions aimed at eliminating inequalities and providing mutual support in the event of difficulties, the greatest obstacles to concretizing solidarity among EU Member States. Thus, the crisis of migrants arriving on the threshold of the Union is a crisis to which Member States have responded and continue to respond by strengthening controls at external borders and reintroducing controls at internal borders to avoid secondary movements, with the creation of border areas without any jurisdiction. On the other hand, the same proposals made in the context of the European Pact on Migration and Asylum allow the creation of areas for pre-screening including an obligation for Member States to establish an independent monitoring mechanism8 which does not seem to solve a problem that is ‘structural’. ‘Virtuous States’, so to speak, because they are at the front line, are opposed to ‘non-virtuous States’ that loudly call for compliance with the Dublin Regulation and contest or evade the exceptional measures put in place precisely in the name of sharing responsibilities that should serve to overcome situations of crisis and difficulty. On the contrary, the migration crisis that began in 2014–2015 and continues today, first overwhelming and then involving the Western Balkans, elicited non-inclusive humanitarian solidarity, even more evident following the COVID pandemic and the military crisis in Ukraine. Apart from some initial uncertainty, the pandemic received a unanimous response from Member States and from the Union itself with a European and national recovery plan that States could access if above all they respect the principle of the rule of law, as recently reiterated by the Court of Justice linking solidarity with respect for the rule of law. With reference to the military crisis in Ukraine, the activation for the first time of a temporary protection mechanism, although approved unanimously, still suffers from

8 On 25 May 2021, the Commission asked the European Union Agency for Fundamental Rights (FRA) to prepare general guidance in the light of Article 7(2) of the proposed screening Regulation.

298

T. Russo

differentiating categories of migrants, some automatically granted the aforementioned protection and others not. Solidarity and the rule of law are thus intrinsically linked. And so, the principle of the rule of law is the new connotation of the solidarity of the Union and among Member States. Failure to respect the rule of law undermines the very foundations of the Union and even solidarity in the integration on common values. As a result, specific mechanisms for its protection have been implemented, albeit faltering in national law. Similarly, the transformative function that the Union has performed is also wavering, affecting the exercise of national legislative, executive, and judicial powers, which, conversely, some States now claim as belonging exclusively to national sovereignty. In this way, political incommunicability puts the supranational system of the Union on stand-by, not to say in crisis. On the contrary, within the European area of freedom, security and justice, a transnational dimension of governance and justice based on cooperation among national authorities and their horizontal and vertical coordination acts as a driving factor of both alignment with the membership criteria and the integration process itself.9 In other words, technical-operational ‘decisionism’,10 which passes through the unstoppable application of international and European Union law in the European governance and justice subsystem space, seems to make up for the lack of political decision-making, advancing the EU system toward a new structure of competences and powers that will be able to find formal answers in a potential revision process currently only glimpsed on the horizon or continue in the practice.

References Bach T, Ruffing E (2013) Networking for autonomy? National agencies in EUROPEAN networks. Public Adm 91(3):712–726 Bach T, Ruffing E, Yesilkagit K (2015) The differential empowering effects of Europeanization on the autonomy of national agencies. Governance 28(3):285–304 Bach T, De Francesco F, Maggetti M, Ruffing E (2016) Transnational bureaucratic politics: an institutional rivalry perspective on EU network governance. Public Adm 94(1):9–24 Blauberger M, Rittberger B (2015) Conceptualising and theorising EU regulatory networks. Regul Gov 9(4):309–376 Boin A, Busuioc M, Groenleer M (2014) Building European Union capacity to manage transboundary crises: network or lead-agency model? Regul Gov 8(4):418–436

9

For the politic reflections stemming from the regulatory actions of agencies see Peters and Wright (2001), Kelemen (2002), Chamon (2016), Everson and Joerges (2006), Pollak and Riekmann (2008), Egeberg and Trondal (2009), Maggetti (2014), Suvarierol et al. (2013), Trondal and Peters (2013), Stone and Ladi (2015) and Joosen and Brandsma (2017). 10 Decisions that, naturally, go through a decision-making process of which the administrative bodies are entitled and whose accountability resides under a big question mark as pointed out by Chiti (2009), Christensen and Nielsen (2010), Egeberg and Trondal (2011), Busuioc and Groenleer (2012) and Buess (2014).

Afterword. The New Dimension of EU Security in a Transnational Justice. . .

299

Buess M (2014) European Union agencies and their management boards: an assessment of accountability and demoi-cratic legitimacy. J Eur Public Policy 22(1):94–111 Busuioc M, Groenleer M (2012) Wielders of supranational power? The administrative behavior of the heads of European Union agencies. In: Busuioc M, Groenleer M, Trondal J (eds) The agency phenomenon in the European Union. Manchester University Press, Manchester, pp 128–151 Chamon M (2016) EU agencies: legal and political limits to the transformation of the EU administration. Oxford Studies for European Law, Oxford Chiti E (2009) An important part of the EU’s institutional machinery: features, problems and perspectives of European agencies. Common Mark Law Rev 46:1395–1442 Christensen T, Lægreid P (2006) Agencification and regulatory reforms. Autonomy and regulation: coping with agencies in the modern state. Edward Elgar Publishing, Cheltenham Christensen JG, Nielsen VL (2010) Administrative capacity, structural choice and the creation of EU agencies. J Eur Public Policy 17(2):176–204 Coen D, Thatcher M (2008) Network governance and multilevel delegation: European networks of regulatory agencies. J Public Policy 28(1):49–71 Curtin D (2007) Holding (quasi-)autonomous EU administrative actors to public account. Eur Law J 13(4):523–541 Danielsen OA, Yesilkagit K (2014) The effects of European regulatory networks on the bureaucratic autonomy of national regulatory authorities. Public Organ Rev 14(3):353–371 Dehousse R (2008) Delegation of powers in the European Union: the need for a multi-principals model. West Eur Polit 31(4):789–805 Delbruck J (2003) Exercising public authority beyond the state: transnational democracy and/or alternative legitimation strategies. Indiana J Global Leg Stud 10(1):29–43 Eberlein B, Grande E (2005) Beyond delegation: transnational regulatory regimes and the EU regulatory state. J Eur Public Policy 12(1):89–111 Eberlein B, Newman AL (2008) Escaping the international governance dilemma? Incorporated transgovernmental networks in the European Union. Governance 21(1):25–52 Egeberg M, Trondal J (2009) National agencies in the European administrative space: government driven, commission driven, or networked? Public Adm 87(4):779–790 Egeberg M, Trondal J (2011) EU-level agencies: new executive centre formation or vehicles for national control? J Eur Public Policy 18(6):868–887 Egeberg M, Trondal J (2016) Agencification of the European Union administration: connecting the dots. ARENA Working Paper 3:1–17 Everson M, Joerges C (2006) Re-conceptualising Europeanisation as a public law of collisions: comitology, agencies and an interactive public adjudication. In: Hofmann HCH, Turk AH (eds) EU administrative governance. Edward Elgar Publishing, Cheltenham, pp 512–540 Font N (2015) Policy properties and political influence in post-delegation: the case of EU agencies. Int Rev Adm Sci 81(4):773–792 Geradin D, Munoz R, Petit N (eds) (2005) Regulation through agencies in the EU. Edward Elgar Publishing, Cheltenham Groenleer M (2011) Regulatory governance in the European Union: the political struggle over committees, agencies and networks. In: Levi-Faur D (ed) Handbook on the politics of regulation. Edward Elgar Publishing, Cheltenham, pp 548–560 Hale T, Held D (2011) Handbook of transnational governance. Polity Press, Cambridge Heims E (2015) Explaining coordination between national regulators in EU agencies: the role of formal and informal social organization. Public Adm 94(4):881–896 Hofmann HC (2008) Mapping the European administrative space. West Eur Polit 31(4):662–676 Johannessen M (2015) How controlled by Member States? The management board’s role in EU agency governance. Department of Political Science, University of Oslo Press, Oslo Joosen R, Brandsma RJ (2017) Transnational executive bodies: EU policy implementation between the EU and Member State level. Public Adm 95:423–436 Jordana J, Triviño-Salazar JC (2017) European Union agencies: a transnational logic?. IBEI Working Papers 54:1–29

300

T. Russo

Kelemen RD (2002) The politics of ‘Eurocratic’ structure and the new European agencies. West Eur Polit 25(4):93–118 Levi-Faur D (2011) Regulatory networks and regulatory agencification: towards a single European regulatory space. J Eur Public Policy 18(6):810–829 Maggetti M (2014) The rewards of cooperation: the effects of membership in European regulatory networks. Eur J Polit Res 53(3):480–499 Mathieu E (2016a) Regulatory delegation in the European Union: networks, committees and agencies. Palgrave, London Mathieu E (2016b) When Europeanization feeds back into EU governance: EU legislation, national regulatory agencies, and EU regulatory networks. Public Adm 94(1):25–39 Nitszke A (2018) EU agencification? A new framework for the functioning of decentralized agencies of the European Union. Athenaeum Polskie Studia Politologiczne 59:205–223 Ongaro E, Barbieri D, Bellè N, Fedele F (2015) EU agencies and the European multi-level administrative system. In: Ongaro E (ed) Multi-level governance. Emerald, Bingley Peters G, Wright V (2001) The national coordination of European policy making. In: Richardson JJ (ed) European Union: power and policy making. Routledge, London, pp 155–177 Pollak J, Riekmann SP (2008) European administration: centralisation and fragmentation as means of polity-building? West Eur Polit 31(4):771–788 Rittberger B, Wonka A (2013) Agency governance in the EU. Routledge, London Simoncini M (2018) Administrative regulation beyond the non-delegation doctrine. Hart Publishing, Oxford Stone D, Ladi S (2015) Global public policy and transnational administration. Public Adm 93(4): 839–855 Suvarierol S, Busuioc M, Groenleer M (2013) Working for Europe? Socialization in the European Commission and agencies of the European Union. Public Adm 91(4):908–927 Thatcher M (2011) The creation of European regulatory agencies and its limits: a comparative analysis of European delegation. J Eur Public Policy 18(6):790–809 Thatcher M, Stone Sweet A (2002) Theory and practice of delegation to non-majoritarian institutions. West Eur Polit 25(1):1–22 Toonen TAJ (2010) Multilevel governance and intergovernmental relations: integrating the theoretical perspectives. In: Ongaro E, Massey A, Holzer M, Wayenberg E (eds) Governance and intergovernmental relations in the European Union and the United States. Theoretical perspectives. Edward Elgar Publishing, Cheltenham, pp 29–49 Trondal J, Bauer MW (2017) Conceptualizing the European multilevel administrative order. Capturing variation in the European administrative system. Eur Polit Sci Rev 9(1):73–94 Trondal J, Peters BG (2013) The rise of European administrative space: lessons learned. J Eur Public Policy 20(2):295–307 Von Bogdandy A (2008) General principles of international public authority: sketching a research field. German Law J 9(11):1909–1939 Von Bogdandy (2012) Democratic legitimacy of public authority beyond the state – lessons from the EU for international organizations. Eur J Int Law – Jean Monnet Working Paper 01/11 Von Bogdandy A, Venzke I (eds) (2014) International judicial lawmaking: on public authority and democratic legitimation in global governance. Springer, New York Von Bogdandy A, Wolfrum R, von Bernstorff J, Dann P, Goldmann M (eds) (2010) The exercise of public authority by international institutions: advancing international institutional law. Springer, New York Wonka A, Rittberger B (2010) Credibility, complexity and uncertainty: explaining the institutional independence of 29 EU agencies. West Eur Polit 33(4):730–752 Yesilkagit K (2011) Institutional compliance, European networks of regulation and the bureaucratic autonomy of national regulatory authorities. J Eur Public Policy 18(7):962–979

Afterword. The New Dimension of EU Security in a Transnational Justice. . .

301

Teresa Russo is Ph.D., Associate Professor of EU Law, Lecturer of International Law, International Organizations, EU Migration Law, International Law and Cyber Security (University of Salerno); Holder of the 2022–2025 Jean Monnet Chair ‘Promoting Public Awareness on Enlargement Policy, EU Values and the Western Balkans’ Accession (EUVALWEB); Scientific Coordinator of the 2019–2022 Jean Monnet Module ‘EU-Western Balkans Cooperation on Justice and Home Affairs’ (EUWEB), University of Salerno; Key Teaching Member of the 2019–2022 Jean Monnet Module ‘Solidarity in EU Law’ (SoEULaw); of the 2022–2025 Jean Monnet Chair ‘Reinforcing EU Responsible Global Leadership: Promoting Human Rights and Democracy Through Solidarity for a Rules-Based Multilateral World’ (ProSoEULaw Abroad), University of Pisa, both coordinated by Prof. Leonardo Pasquali; and of the 2022–2025 Jean Monnet Module ‘Democracy and the Rule of Law in the EU: a New Push for European Values’ (EU-DRAW), coordinated by Prof. Rossana Palladino. She is Scientific Coordinator of the ICM Project with Albanian Universities, co-funded by the European Commission’s Erasmus+ Programme – Key Action 1 with Partner States. She was bestowed of the Jubilee Diploma by the Rector, the Presidents of Senate and Board of Directors at the University ‘Titu Maiorescu’ of Bucharest on 23 April 2015. She has been invited as a visiting professor at several foreign universities and as a speaker in several international conferences. Teresa Russo is the Director-in-Chief of the online Scientific Journal EUWEB Legal Essays. Global & International Perspectives; the Director of the EUVALWEB Legal Observatory; Member of the Scientific-Technical Committee of the Observatory on European Area of Freedom, Security and Justice, Department of Legal Sciences, University of Salerno; Editorial Board’s Member of La Comunità internazionale (The International Community) of the Italian Society for international Organization (SIOI), Rome, Italy; Member of the Referee Committee of the online Journal Freedom, Security and Justice: European Legal Studies; Scientific Board’s Member of the Review OPTIME of the Albanian University of Tirana, Albania.