Central and Eastern Europe After Transition

Towards a New Socio-legal Semantics

Wojciech Sadurski, Alberto Febbrajo

• Publisher: Routledge
• Year: 2016
• Print ISBN:
  9781409403906
• eBook ISBN:
  9781317168997
• Topic: Law
• Subtopic: Jurisprudence
• Index: Law

How have national identities changed, developed and reacted in the wake of transition from communism to democracy in Central and Eastern Europe? Central and Eastern Europe After Transition defines and examines new autonomous differences adopted at the state and the supranational level in the post-transitional phase of the post-Communist area, and considers their impact on constitutions, democracy and legal culture. With representative contributions from older and newer EU members, the book provides a broad set of cultural points for reference. Its comparative and interdisciplinary approach includes a useful selection of bibliographical resources specifically devoted to the Central Eastern European countries' transitions.

PART 1
The Constitutional Framework

Chapter 1
Constituting the Heterarchy of European Constitutionalism in the EU’s New Member States¹

Jiří Přibáň

Introduction

This chapter focuses on institutional and jurisprudential reflections on sovereignty and constitutionalism in the context of European integration of post-communist nation states and their political and legal systems. The EU’s constitutional domain is subsequently used as an example of profound changes in contemporary European societies and their constitutional systems and cultures.

After importing laws and constitutional doctrines during post-communist legal and political transformations, constitutional courts of new member states needed to adopt constitutional concepts and arguments related to EU membership and specific structural preconditions of European legal and political institutions. While the 1989–2004 period was concerned with defining the principles and jurisprudence of the sovereign constitutional state and the democratic rule of law, the post-2004 period has been characterized by attempts to assimilate the notion of divided sovereignty and thus to grasp complexities of EU law and national constitutional systems and cultures. The concept of divided sovereignty was therefore adopted by the constitutional courts of new member states, and internalized as a form of emerging EU constitutional jurisprudence and a common legal culture for European society in the post-national constellation.

‘Asymmetric’ Europeanization of Post-communist States

Between 1989 and 1993, post-communist states made establishing EU membership a foreign policy priority, an objective which was not perceived as clashing with the coeval process of rebuilding national sovereignty, constitutional statehood and the rule of law. EU membership was considered to be a matter of national interest, despite there existing a profoundly asymmetrical relationship between the ever more economically and politically integrated EU and emerging post-communist democracies.

This ‘asymmetric interdependence’ defined the whole period between the 1989 revolutions and the 2004 EU enlargement.² Critics comment frequently on the EU’s vague promises to accept post-communist countries ‘in five years’, which it has been making ever since the fall of the Berlin Wall. Nevertheless, post-communist political and constitutional transformations of the early 1990s and the profound coeval transformation of the European Community into the EU after the ratification of the Maastricht Treaty in 1992 eventually led to the outline of a specific integration policy for post-communist countries. Thus, in 1993, the newly established EU adopted a set of EU membership conditions for candidate states. These conditions became known as the ‘Copenhagen criteria’ and formed the basis of the conditionality process for EU accession.

As Milada Vachudova pointed out, the leverage of the EU over candidate states was originally passive and limited to the most general attractions of EU membership; however, it was transformed into active influence after the introduction of the Copenhagen criteria by the EU in 1993.³ The Copenhagen criteria were adopted by the European Council in June 1993 and divided the EU accession conditions into three different categories – political, economic and legal. While economic conditions specified the need to establish a functioning market economy compatible with market pressures, competition and regulations within the EU, political conditions made it necessary to guarantee the institutional stability of emerging democracies and their constitutional systems, including the rule of law principles and human rights catalogues.⁴ Political conditions even included respect for and protection of minorities, for which there were no grounds within the framework of European law.⁵

The asymmetrical relationship between the EU and post-communist accession states was justifiable by the EU’s role as a political stabilizer at the time of social transformation.⁶ There were also accompanying ethnic and national tensions in the region of Central and Eastern Europe.⁷ Until the Copenhagen Council, the issues of democracy and the rule of law were automatically associated with member state governments and no formal criteria for applicant countries were defined by the EU. As Wojciech Sadurski commented:

[T]hese matters – democracy, the rule of law and human rights – have largely been taken for granted within the Community itself, and never before 1993 were they included in a formal set of criteria for former applicant countries, whose democratic and human rights credentials always seemed impeccable to the members at the time. But after 1993 the contrast between the rules for existing members and the admission criteria for prospective newcomers became sharp.⁸

During the accession process, political and economic targets coincided with the legal requirement that all candidate states had to harmonize their national legal systems with the body of European acquis. Substantive political and economic achievements were thus accompanied by the instrumental need to adopt the EU acquis to adhere to the political, economic and monetary goals of the EU. The harmonization of European and national laws, along with the incorporation of European legal regulations, became a major political objective.

The system of Europe agreements which obliged candidate states to harmonize their laws with EU law formed the legal basis for the European integration of post-communist countries.⁹ Strengthening the instrumental control of the accession process, the Commission introduced its Agenda 2000 in 1997, which focused on the need to assimilate the enormous body of the EU acquis, including the treaties, secondary legislation and case law of the European Court of Justice.¹⁰ In 1998, the Commission formed accession partnerships with individual countries which incorporated the legal systems harmonization deadlines and priorities. These partnerships further led to the formation of national programmes for adopting the Community acquis, in which candidate states were required to specify their harmonization policies including the adoption of legal acts, institutional reforms and financial resources. These policies were then assessed annually in the Commission’s progress reports.¹¹

While the 1993–1997 period generated little more than general remarks regarding democracy and the rule of law reforms, the progress reports turned political conditionality into a detailed monitoring technique after 1997. The first reports were published in the autumn of 1998.¹² They consisted of a number of subsections evaluating different branches of government, detailing the justice system and its efficiency, judicial professions, corruption and anti-corruption measures, protection of civil and political rights, social rights, minority rights and policies and so on. The reports assessed progress in legislation and administrative measures in specific policies in individual countries, described accomplishments, and prescribed further measures to keep the whole process from coming to an end. National governments were asked to set out short- and medium-term priorities for the adoption of the acquis and were provided with financial assistance to achieve these goals.¹³

Was the EU a ‘Patron’ of the Democratic Constitutionalization of Post-communist States?

The Copenhagen criteria and subsequent progress reports and other policies introduced by the EU, like any other external policies, largely depended on internal conditions and factors facilitating their adoption by candidate states.¹⁴ They had to be reformulated at national level as political interests, party ideologies, and governmental and constitutional programmes changed. Though incorporated EU laws heavily influenced constitutional and political developments in post-communist countries,¹⁵ the effect of such laws became entirely dependent on national and cultural legal and political institutions.¹⁶ The EU was able only to monitor this process of legal harmonization.¹⁷

From the perspective of democratic constitutionalism, the Copenhagen criteria and the Commission’s progress reports (designed with conditionality in mind) had very mixed results. EU membership was considered such a political priority in all candidate states that the laws were approximated without appropriate democratic deliberation and then justified as historical necessity. The candidate states did not participate in the creation of EU acquis and their contribution to the Europe agreements and conditionality documents was very limited.¹⁸ Nevertheless, the candidate states did enjoy racing in what was nicknamed the EU accession ‘regatta’, competing with each other in terms of their number of completed chapters of EU negotiations.¹⁹ In this context, one can legitimately ask whether metaphors of races at sea should be replaced by an old-style East European metaphor of ‘Potemkin villages’ scattered along riverbanks of Central and East Europe.

Despite fundamental criticisms, however, the whole process of European integration had an enormously positive and stabilizing effect on post-communist candidate states throughout the 1990s and early 2000s. While drawing on the difference between ‘insiders’ and ‘outsiders’, and using the rule of law, constitutionalism, democracy and human rights criteria as political pressure devices, the conditionality of the Copenhagen criteria successfully pushed ‘outsider’ post-communist countries to enact specific policies and comply with standards of democratic constitutionalism and the rule of law.

After the fall of communism, the process of Europeanization was always closely associated with the processes of democratization and constitutionalization. Some academics even wrote about the ‘accession’s democracy dividend’ when examining the force, impact and limitations of the EU’s external pressure on the accession countries.²⁰ EU membership was considered the best protection for emerging constitutional democracies in Central and Eastern Europe against illiberal and authoritarian politics, corruption, arbitrary use of power by civil servants, lack of public accountability, and many other sorts of political failure. In other words, EU institutions were expected to promote and police exactly the same goals which defined post-communist constitutional and political transformations. Weak national political and legal institutions, which were suffering from insufficient resources and experience, and were prone to political cronyism and corruption, were expected to be externally supported and stabilized during the transitional period by the EU.

The EU was a major point of reference and represented a ‘normal state of things’ towards which post-communist countries in transformation were heading and which, therefore, could and actually did have a strong synergistic effect in European politics.²¹ The candidate states’ ‘patronized status’ did not change until the EU’s engagement in the constitutional treaty-making process. Opened by the Convention in 2002, it was continued by a draft of the constitutional treaty being approved in 2004, though it eventually failed owing to the ‘no’ results of ratification referenda in France and the Netherlands in 2005. During the Convention’s work on the constitutional treaty, the candidate states were invited to contribute to its drafting but they were not able to block any consensus that could be established amongst member states at the time. In other words, the post-communist states’ status changed from passive recipients of EU laws to active participants in EU constitution-making.

Furthermore, the stabilizing effect is still detectable five years after the 2004 EU enlargement, even in such Eurosceptic countries as the Czech Republic. The EU finds itself in the paradoxical situation of being the sort of highly suspicious political organization typical of impersonal administrative power and already imposing too many of its regulations on post-communist countries, whilst containing even worse political inclinations of national political and bureaucratic elites.²² Traditional Central and Eastern European distrust of the state as an alien and incomprehensible institution has been associated with the EU bodies, yet the same bodies are locally believed to have powers to make national politics more accountable and bring it under the public’s control. The dividend pays off in spite of local distrust of the company’s management because all other alternatives would amount to political losses rather than profits.

Democratizing Effects and Democratic Deficits of EU Accession

The EU can demand its member states and candidate states to be democratically governed and rule of law-based. However, the EU as a supranational organization itself is short of democratic governance. The EU draws heavily on the administrative state’s legitimacy, based on efficiency and outcomes rather than on values and democratic procedures.²³ It resembles earlier political developments within the nation state in the late nineteenth century, when bureaucracy became the most important legitimizing part of political will and the rationality of bureaucratic order informed the notion of legitimacy by legality. Regulatory ‘necessities’ and efficiency measures encourage the EU to copy the design of the administrative state and invoke ‘the common benefit’ rather than seek legitimation through ‘representative democracy’.

In this situation of ‘things administering themselves’,²⁴ political goals of democracy, human rights and the rule of law can be formulated by the EU as external conditions but not as EU internal principles, which need to be adopted at post-communist nation-state level. These goals can be referred to as ‘member state intrinsic principles’ and as such can be legitimately expected of candidate states. However, this ‘horizontal argument’ is impossible to supplement by the ‘vertical argument’ of an EU democratic rule of law permeating the candidate state political and legal institutions.

The EU, therefore, is best described as having the rule of law without legitimacy by democratic procedures, yet legitimized by democratic constitutionalism at member state level.²⁵ In European legal and political studies, this structural setting is widely discussed as the EU’s ‘democratic deficit’. For some, the lack of democracy at EU level merely proves how wrong all Euroenthusiasts have been in pursuing their visions of European statehood. For others, the deficit has been just a minor structural deficiency fully compensated for by the common benefits of EU membership and democratic legi...

Table of contents

• Cover Page
• Half Title Page
• Title Page
• Copyright Page
• Table of Contents
• List of Tables
• List of Contributors
• Introduction
• Part I: The Constitutional Framework
• Part II: The Legal Professions
• Selected International Bibliography 1989–2009
• Index