EU enlargement has been one of the principal vectors of differentiation in the process of European integration due to transitional opt-outs from some obligations (and privileges) of membership (Schimmelfennig 2014). Also, EU accession conditionality has demanded compliance with conditions which in some cases have entailed much stricter obligations for the (potential) new Member States in comparison to the obligations that bind existing Member States (Hillion 2004, 2014). This in turn has increased variation in application of the EU acquis, enhanced the tension between growing heterogeneity and the requirement for legal uniformity, and raised the risk of a dysfunctional Union. This strain has been especially visible in the EU stance on the rule of law in general and on Member States’ judiciary in particular. On the one hand, the rule of law is a founding value of the EU (Article 2 TEU) that is also deemed common to all Member States, and that they should fully respect as prerequisite for their full enjoyment of membership rights. On the other hand, the rule of law in general, and the organisation of a Member State’s judiciary in particular, remains characterised by a high level of heterogeneity in view of the limited EU acquis in the field.
As the rule of law became a conditio sine qua non for successful accession to the EU, the Union has been extremely active in articulating and advocating rule of law standards in the “pre-accession” context. This process, which started during the accession of the Central and Eastern European Countries, has culminated with the EU’s enlargement strategy for the Western Balkan candidates. By extensively borrowing legal standards from external sources such as the various bodies of the Council of Europe, the EU has progressively articulated a specific set of EU standards epitomised by the two accession negotiation chapters related to the rule of law, chapters 23 (Judiciary and Fundamental Rights) and 24 (Justice, Freedom and Security).
Within this accession conditionality framework, particular attention has been devoted to judicial governance and independence. In the past two decades, the standards regarding judicial governance have profoundly evolved, to the extent that a particular model of this type of governance (Bobek and Kosar 2015, Presova et al. 2017), centred around institutional empowerment of strong and independent judicial/prosecutorial councils and training academies, has been promoted as a key criterion for advancement in the accession process. Compliance with this conditionality has produced a high level of homogeneity of judicial governance across the Western Balkan candidate states.
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