“What” versus “Who”: Europe’s Rule of Law Agenda Revisited

As we all know, observance of the “Rule of Law” is a central criterium for accession. The way this concept is handled in the enlargement process raises a number of serious concerns, addressed in a recent paper by Rachel Kleinfeld and myself, entitled “RETHINKING EUROPE’S RULE OF LAW AND ENLARGEMENT AGENDA: THE FUNDAMENTAL DILEMMA”. In it, we advocate inter alia a consistent rule of law approach across the EU instead of keeping the Copenhagen criteria solely for the realm of the enlargement process.

The background for the paper is this: In 2010, noting problems inter alia in Romania and Bulgaria, the EU Commission turned to the OECD SIGMA Programme (Support for Improvement in Governance and Management) for a background report on rethinking the way we promote and sustain the rule of law in the process of enlargement. The SIGMA Programme was created in 1991 to assist the EU in the enlargement process and is principally financed by the EU. It supports public governance reform efforts, including on the rule of law in both EU actual and potential Candidates well as European neighbours. Although I protested that Rachel and I were not lawyers, the OECD secretariat wished for us to expand on our argument in the book edited by Gianluigi Palombella and Neil Walker on Relocating the Rule of Law (2009). We thus produced this report with considerable support and enthusiasm from the OECD secretariat and a network of brilliant EU legal scholars who met at OECD. Unfortunately, in spite of being published by the OECD, the report has gone nowhere fast. Wonder why…

Anyway, it is now a Jean Monnet Paper (08/2012) and we hope it may elicit some further discussion.

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 ...

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