Rethinking Europe’s “Rule of Law” and Enlargement Agenda:           The Fundamental Dilemma

This paper sets out a strategy calling for a radical overhaul of the manner in which both the EU and aspiring member states define and implement what the Copenhagen criteria refer to as the “Rule of Law” in pursuit of the elusive goal of sustainability. While pointing to the limits of the current “anatomical method” centered on legal and institutional checklists, the paper stresses the existence of a fundamental dilemma between, on the one hand, the need to be more ambitious in assessing and promoting the “Rule of Law” and, on the other hand, the imperative to exercise humility and restraint regarding the claims made by the EU on behalf of “Rule of Law” assessment and assistance.

The paper argues that while tensions shall always remain, this dilemma may be addressed through a new approach, which is ends-based and focused on the viewpoint of citizens and their empowerment. Moreover, it argues that such an approach should deal with existing and aspiring member states in a consistent manner. Crucially, the paper warns that better applying a “sustainability test” should not serve as an undue pretext to delay enlargement. As a matter of fact, if applied, this new approach is likely to facilitate accession.

The paper suggests practical steps that may help navigate the dilemma and operationalise this new approach. Recommendations include:

  • The empowerment of institutional as well as civil society monitors to assess “Rule of Law” sustainability in both candidate countries and that of member states (e.g. through European Social Fund conditionalities).

  • In the realm of enlargement, establishing a better link between assessment and assistance, as well as a sharp distinction between the legitimate scope of EU assessment through “progress reports” and the more narrow legitimate scope of intervention through assistance programmes.

  • A broader definition of the ambit of the “Rule of Law” to encompass the socio-political and socio-cultural realms and an upgrading of the importance of constitutional and administrative law.

  • A recognition of the contested notion of the “Rule of Law” across cultural borders and the limits of EU competences in the ways definitions and list of principles are offered, including on the internet.

  • The focus on the end-users of the law, namely the citizens.

  • A number of concrete and immediate actions such as: identifying "Rule of Law" as the priority governance reform goal for its Public Administration Reform/Justice and Home Affairs programmes; the systematic support of local actors who can hold their government and administration to account; greater care in the pace and mode of EU acquis transposition; better use of ombudsmen reports; reconsidering assessment methodologies and capacities.