Why the EU benchmarking on the rule of law needs to be revised

The European Union needs to create clearer benchmarks for the rule of law and judicial reform in Ukraine, which could then be replicated for other reform areas, write Snizhana Diachenko, Liubov Akulenko, and Viktoriia Melnyk.

Snizhana Diachenko is an analyst at the Ukrainian Centre for European Policy. Liubov Akulenko is the executive director at the Ukrainian Centre for European Policy. Viktoriia Melnyk is the head of international relations and European integration at the Centre of Policy and Legal Reform.

The decision on EU enlargement is usually a political one, followed by a technocratic methodology that can either strengthen or weaken a candidate country’s progress towards the EU.

In the case of the Western Balkans, the enlargement methodology fell short of enhancing the EU’s transformative power in terms of the rule of law – the present and potential candidate countries there have yet to make much progress in fundamental reforms.

Now, Ukraine has an opportunity to become a member of the EU in the future, but it may end up in the same endless negotiation loop if the EU’s approach remains as it is. We believe the time has come to improve the methodology if we want candidate countries to demonstrate progress.

Furthermore, improving the methodology is necessary to achieve a lasting result and prevent potential rollbacks of democratic reforms.

Unlike other negotiating chapters, there is no EU legislation (so-called “hard acquis”) for most areas under Chapters 23 and 24, which cover the rule of law, justice, security, anti-corruption, and fundamental rights.

An additional predicament arises from the difficulty of quantitatively verifying the achieved level of compliance regarding the political accession criteria.

The EU usually relies on the data collected and provided by several international organisations, like OSCE or the Council of Europe, when assessing candidate countries’ compliance, particularly regarding the political criteria of democracy and the rule of law.

At the same time, the EU and other international institutions may have different assessments of a particular decision and/or legislative act, which leads to the need to find a reasonable balance between different standards.

While the rule of law lacks unified EU standards, it remains the core principle of the EU functioning and represents its basic value.

Each enlargement wave has been characterised by increasing attention to the rule of law conditionalities for candidate countries, landing in the current approach of ‘fundamentals first’.

The revised methodology envisages an interim benchmarking system assessing each country’s preparedness to open and close a negotiating chapter.

Hence, Chapters 23 and 24 represent the main instrument of the European Union’s strategy towards the Western Balkans. The benchmarking system linked to these chapters aims to help a candidate country meet the EU requirements through specific tasks facilitating the measurement and evaluation of progress.

These tasks are translated into the opening (the adoption of comprehensive Action Plans for Chapters 23 and 24), interim (adoption of relevant legislation, the set-up or strengthening of rule-of-law related institutions) and closing benchmarks (a solid track record of reform implementation).

In practice, the interim benchmarks are very broad and represent a long-term goal, which makes their assessment rather superficial. In addition, the benchmarks are not tailored to the specific circumstances of the countries they target, as seen from the example of the identical benchmarks developed for the two accession frontrunners — Serbia and Montenegro.

For Ukraine to avoid this trap, Ukrainian and European experts undertook to develop a unique approach which combines the EU’s flexibility in formulating benchmarks and the need for clarity of requirements specific to the national context of Ukraine.

The expert team focused on judicial reform in Ukraine and developed a comprehensive set of benchmarks for independence, accountability, efficiency and effectiveness of the judicial system.

Following the EU methodology, the tasks were divided into three categories of benchmarks: opening, interim, and closing.

This approach is strictly Ukraine-specific and based on the normative and empirical analysis of the state of judicial system reform. The proposed set of benchmarks is clearly formulated and addresses the identified gaps and problems.

For instance, one of the identified problems is an acute shortage of both financial and human resources, which impairs access to justice.

In this case, the opening benchmarks would be updating the procedure of selection and evaluation of judges and starting the selection process; conducting an audit of the activities of the State Judicial Administration and enterprises under its management.

Interim benchmarks: filling vacant positions in the judiciary and introducing regulations for transparent planning and allocation of budget resources in the judicial system. It should be noted that a clear division of policy recommendations is possible only at the first two groups of benchmarks — opening and interim.

Closing benchmarks can be formulated as goals that Ukraine should achieve at the end of the accession negotiation process. Further, the closing policy recommendations can be refined as subtasks when analysing the state of implementation of the opening and interim recommendations.

Clear policy recommendations are vital for effective reform, while flexibility addresses new challenges during accession. This allows for prompt adjustment of tasks if implementation proves ineffective.

The clear and measurable benchmarks are useful for all parties:

The European Commission will be able to organise monitoring of Ukraine’s commitments more effectively, ensuring transparency for member states. Ukraine’s government will gain clarity on necessary steps, while civil society can independently monitor reforms and support the government.

A clear set of benchmarks will add predictability to the process and help restore the lost credibility of EU enlargement in general.

This is especially true in the Western Balkans, where public attitudes towards the EU are declining. 

The EU now has a unique chance to regain its transformative power by tailoring its conditionalities to each candidate country. This needs to be done not only to consolidate democracy but also to strengthen European resilience and security.