The transformative power of EU: An Assessment of EU impact in the judicial system of Kosovo

• Author: Bahrie Besimi
• Pages: 35-50

Academic Journal of Business, Administration, Law and Social Sciences

IIPCCL Publishing, Tirana-Albania

Vol. 2 No. 2

July 2016

ISSN 2410-3918

Acces online at www.iipccl.org

35

The transformative power of EU: An Assessment of EU impact in the judicial

system of Kosovo

Bahrie Besimi

Abstract

In the process of EU integration, the aspiring and potential candidate countries have under-

gone a major process of reforms. The question that is aroused in this sense is to what extent

the EU has had transformative power and impacted the internal judicial structures of Kosovo

andunderwhichconditionstheEUismoreeectiveThisarticleanalyzesthendingsofthe

Progress reports for a ten-year period (2005 – 2015) and the extent of the EU impact. It uses

the conceptual and rational framework of external incentives model and argues that the EU

impact in the judiciary system of Kosovo is crucial considering the starting low phase of re-

forms in Kosovo.

Keywords: European Union, Kosovo, Judicial System, Transformative power, impact.

Introduction

The transformative power of EU integration processes and its impact in the

candidate countries and potential candidate countries has been deeply analyzed

by the Europeanization literature (Schimmelfennig, Frank, and Ulrich Sedelmeier,

2004). The EU incentives formed the basis of a strong conditionality policy which

the EU used to press for democratic reforms and to monitor compliance with its core

political values (Grabbe 2006; Schimmelfenning and Sedelmeier 2004; Vachudova

Theliteraturehasaemptedtomovebeyondtherationalistbargainingmodel

which is referred as the external incentive model, by introducing new variables both

at the EU and at the domestic level. Most of the literature I have consulted with has

shown a top down approach by introducing variables at the EU level to explain the

complianceornoncomplianceandtheeectivenessofEUconditionalityGrabbe

2006; Schimmelfenning and Sedelmeier 2004; Vachudova 2005; Noutcheva and

Aydin-Dyzgit 2011).

Considering the fact that majority of the Western Balkan countries have been

empirically analyzed on the impact of the EU integration/accession processes, the

case of Kosovo has been barely addressed. In this regard, with the aim of addressing

theimpact and the transformative powerofthe EU integration processes on the

judiciary system in particular, this paper argues that despite the slow reforms that

gradually took place and the weak state capacities to absorb the required reforms, the

EUasanactorandtheEUintegrationaccessionprocessesasdiusionofideaBörzel

Tanja A. and Risse T. 2009), was the most crucial actor/mechanism, respectively, that

had a crucial impact on gradual changes in Kosovo in. In conceptualizing the EU

impact, this paper will make use of the work of Schimmelfenning and Sedelmeier

whichprovidedthetheoreticalframeworkoftherationalexternalincentivesmodel

which follows the logic of consequences and is driven by the external rewards and

sanctionsthattheEUaddstothecostbenetcalculationsoftheruleadoptingstate

Vol. 2 No. 2

July 2016

Academic Journal of Business, Administration, Law and Social Sciences

IIPCCL Publishing, Tirana-Albania

ISSN 2410-3918

Acces online at www.iipccl.org

36

Therefore, this article has been designed to illustrate the extant and ways the EU

exercisesitsinuence on the accession countries namely in the judicial system of

Kosovo. The extant of the EU impact is limited on the formal structures of judiciary,

namely developed legal framework and institutions. However, considering the

very low starting point of judiciary in Kosovo, these reforms are tangible which

transformedthejudiciarysystemofKosovoTheeectivenessandtransformative

impact of EU integration will be proven by studying and analyzing the EU progress

reportsitsndingsgapsandprogressesthatcoveraperiodofyears

Literature Review and Theoretical background: The EU impact through

Conditionality

In the most literature review, EU is rightly described as an actor, which seeks to

transformthedomesticstructuresoftheWesternBalkancountriesinordertofoster

peacestabilityandprosperityintheregionriddenbywarandethnicconictBörzel

2011). In this regard, Croatia is seen as the only country of the Western Balkans to

havemade sucient progress to successfully conclude the accession negotiations

whereas in the other extreme lies the case of Kosovo and Bosnia Herzegovina, which

are considered seriously lagging behind. The reasons behind the lack of progress

remainthelimitedstatehoodthathasseriouslycurbedthetransformativepowerof

the EU in the Western Balkans - despite their membership perspective.’

Thelackofstatecapacitieshasalsobeenarguedtohaveanimpactontheeectiveness

of EU conditionality. Even though features of EU conditionality, in particular its

prescriptiveessencearefarfrombeingwelldenedconditionalityisseenasagate

keepingmechanismembodyingclearlyidentiableandgenerallyunderstoodnorms

rulesandinstitutional congurationsthatareappliedconsistently andovertimeto

regulate the entry of new members’ (Hughes, 2005). It is argued for its ambivalence

andambiguitybecauseCopenhagenCriteriawas politicized and operationalized

in a selective manner. Therefore Hughes et al, argues that this ambivalence and

vagueness of the acquisacrosspolicyareashassignicantlyweakenedtheimpactof

conditionalityNeverthelesswehavetobeawareofthefactthatEUconditionality

doesnothaveauniformlogicbutratherhasawispishnaturethatshisandtransforms

depending on the content of the acquis, the policy area, the country concerned and the

political context.’

Another contribution in the literature was given by Heather Grabbe in her book

The Eu’s transformative power in 2006, who investigated the mechanisms used

instrumentallybytheEUtoaectchangethroughconditionalityandtheaccession

processgroupingthemintovecategoriessuchasModelsprovisionoflegislative

and institutional templates, Money aid and technical assistance, Benchmarking and

monitoring, Advice and twinning, and Gate-keeping: access to negotiations and

further stages in the accession process’ (Grabbe, 2006).

A close look at the Central Eastern Europe candidate countries illustrates that potential

candidate countries of CEE had to undertake all the EU’s existing laws and norms in

order to be subject to the same Eurpeanisation pressures as member-states in policies

and institutional templates that they downloaded from EU level. Furthermore, the

legal transposition of the acquisand harmonization with EU laws was essential to

becomingmemberstateInthecaseofCEEdierentlyfromtheexistingEUMember