Conclusions

While the EU accession of the WB countries continues to depend mostly on the rigorous application of conditionality, poor rule implementation and extremely weak rule internalization of the judiciary reform in the Western Balkans are caused by the presence of veto players armed with rationalist calculations of social costs of deviation, and by inadequate institutional and administrative capacities in the target countries which are caused by legacies of the past. In order for EU rule of law conditionality to be functional, domestic adaptation costs must not be higher than the reward; otherwise the ruling elites of a rational target state will not comply. Moreover, despite the proper precautions such as later accession dates, the use of safeguard clauses and post-accession monitoring, the EU does not have a functional mechanism under which EU conditionality can be genuinely effective against the observed “legacies as deep conditions.”1 Finally, the EU’s established rule of law conditionality proved to be particularly incapable to answer the countryspecific challenges of (1) high political fragmentation which hampers Bosnia-Herzegovina, (2) ethnic cleavages that seriously impact processes in Bosnia-Herzegovina, Kosovo and Macedonia, and (3) the lack of fully affected state-building. On the other hand, constructivist institutionalism suggests the processes of

socialization and persuasion to be the central mechanisms of the EU’s domestic impact, through which national elites become convinced of the need to internalize the EU’s rules. A particular problem regarding this approach lies in the fact that the EU demands unilateral adjustments while the candidate countries did not participate in the setting of the rules that they need to adopt. In order to impact the public and domestic elites to positively identify with the EU demands and be more open to persuasion, the EU employs “transnational networks”2 as a facilitating factor for its influence. However, the success of EU socialization and persuasion strategies is highly dependent on both the de-politicization of projects and the expertise of individuals involved. By focusing exclusively on institutional socialization the EU has thus far failed to influence the wider community, particularly the expert

public, in order to empower it to become part of the cognitive convergence pressure group and thus exercise bottom-up pressure on the political elites in the target country. In practical terms, this implies that rationalist and constructivist strategies

for the promotion of the rule of law in Bosnia and Herzegovina, Kosovo, Macedonia, Montenegro and Serbia must not be considered as mutually exclusive, but rather as complementary approaches for the enhancement of the EU’s influence. The rule of law reform is a lengthy, potentially life-long process, during which the social and cultural continuity of the transferred norms is eventually attained, particularly by providing every responsible member of society with the skills and habits necessary for their implementation. Therefore, in order to achieve the goal of Europeanization by rule of law implementation, i.e. the goal of internalizing adopted norms in everyday life, it is necessary to include wider social strata into the rule of law transformation process. Basically, it is essential to achieve the transformation of traditional top-

down power structures in which governments are at liberty to influence both legislative and judiciary branch through clientelistic networks and/or methods of more or less open pressure into a horizontally structured civil society based on the rule of law. This exercise is not simply a superficial creation of healthier and less dependent relations between the state and civil society. It has much more serious consequences, particularly within the process of EU integration. As presented in Figure 3.1, the creation of civic networks composed of Judicial Associations, expert NGOs, various civil society organizations, independent investigative journalists, Ombudsperson, Commission for Protection of Competition, Securities Commission, Commissioner for Information of Public Importance and Personal Data Protection, Commissioner for

Figure 10.1 Good Governance Scheme

Protection of Equality, Judicial Academy, and so forth is crucial for ensuring the transparency and accountability of the state by providing control over its efficiency, effectiveness and responsiveness. Furthermore, this horizontal power structure is central to the prevention of the pervasive veto power of gatekeeper elites embodied in government representatives, and other parainstitutional actors such as secret services, tycoon networks, influential religious leaders, and so forth. Still, the proposed scheme would not yield sustainable results without the

credible promise of full EU membership. As Montenegro currently displays, a credible membership perspective is an effective mechanism in persuading national governments to adopt rules, create institutions, and establish relations with the civil society, they would otherwise resist. On the other hand, where the credibility of the EU promise is either weak or distant, such as can be observed in Kosovo, Bosnia-Herzegovina, and Macedonia, the achievement of formal compliance with the EU rule of law conditionality has proven to be less complete. This in turn opens a legitimate concern about how to influence the reform

processes in the current laggards of EU integrations; namely Kosovo and Bosnia and Herzegovina, but also Macedonia, whose accession has effectively been blocked for almost a decade now due to the Greek veto. The theory of “leverage and linkage”3 between the EU and the accession

countries suggests that the success of the EU’s influence in democracy and rule of law export is conditioned by high leverage, as manifested in an asymmetrical power relationship between the EU and the target state, and dense linkages through density of ties between the negotiating parties. The more an accession country becomes “entangled” in linkages with the EU, the more “vested interests will consolidate on both sides,”4 which ultimately leads to the natural desire of the holders of vested interests to preserve such ties. In other words, opening the gates wider would produce a path-dependency that in the long run constrains the maneuverability of gatekeeper elites. At the moment, newly established mechanisms of the European Commission, Structured Dialogue on Justice with Bosnia-Herzegovina, Structured Dialogue on the Rule of Law with Kosovo, and the High Level Accession Dialogue with Macedonia aim to advance structured relations on the implementation of the rule of law with aspiring member countries prior to the SAAs entering into force. However, while socializing the elites, Structured Dialogues still do not provide credibility in regards to the membership perspective. Hence, the question of the way forward towards the sustainable and long-lasting EU rule of law promotion to candidate countries remains open.