Commission compromising Rule of Law standards in the interest of Orban-Vucic axis

The last European Commission report on Serbia is a blatant example of how rule of law standards can be compromised under a Commissioner representing Viktor Orbán’s ideology, writes Viola von Cramon-Taubadel.

Viola Von Cramon-Taubadel is a German MEP from the Green/EFA group, member of the Committee on Foreign Affairs and the Delegation to the EU-Serbia Stabilisation and Association Parliamentary Committee.

For years, we have been listening that the Fundamentals – primarily the rule of law and other principles enshrined in Article 2 TEU – are the conditions for a country aspiring to become a fully-fledged EU member state. To put it concretely, if you do not have an independent judiciary and equal treatment for all before the law, you cannot make it to the Union.

Since the 1993 Copenhagen criteria were established, many things have changed, including our own internal rule of law crisis. This article is not directly about it, but it is inevitably linked.

Since the outset of von der Leyen Commission, the Greens have been warning that Olivér Várhelyi, as Commissioner in charge of enlargement and neighbouring countries, is the wrong man in the wrong place.

Someone appointed by a government that breaches the rule of law and shatters democracy cannot be a good example for countries like Montenegro, Serbia or Albania, which struggle with their own democratic transition paths.

The early signs of enhanced influence and politicisation instead of an impartial approach were floating around since the very beginning of Várhelyi’s mandate.

Yet, the worst has come with the present 2021 Enlargement Package, the Commission’s yearly assessment of the preparedness and achievements of Western Balkan countries on their EU paths. The Commission has officially gone below its own and European standards by watering down the Serbian 2021 Progress report on the rule of law standards in particular.

The target was clear – the independence of the judiciary, as this pattern is already applied in both Hungary and Poland. Briefly, Serbia is undergoing constitutional amendments whereby it intends to improve the independence of the judiciary. The constitutional amendments should, among other things, amend the composition of the State Prosecutorial Council, which chooses the prosecutors.

The EC has indicated in its 2014 Screening report of Serbian judiciary (p. 25) that prosecutors must represent at least 50% of the State Prosecutorial Council to avoid politicisation of the appointment of prosecutors. Nevertheless, seven years later, the Commission has welcomed the constitutional amendment proposal, which foresees that prosecutors are only 5 out of 11 members of the State Prosecutors’ Council, hence below the 50% threshold.

Furthermore, on 18 October 2021, just a day before the Progress report was published, the Venice Commission issued an opinion where it criticised this solution (para. 110). It also explicitly recommended that the prosecutors represent 6 out of 11 members and that the Minister and the Chief Prosecutor should not be members of the Prosecutorial Council.

This is thus a blatant example of how the European Commission became politicised for the interest of the Orbán-Vučić axis and that the rule of law standards can be compromised under the Commission’s watch.

Suppose the rule of law assessment – which is the very essence of the EU legal order and the area that conditions the overall progress in accession negotiations – is not to be fully trusted. In that case, the overall 2021 Enlargement package must be considered carefully since it is manifestly unreliable and flawed. This is furthermore a prime example of why the overall assessment of the Commission regarding Serbia in particular, and possibly some other countries, cannot be a trustworthy source and thus, the recommendation to open new clusters is misplaced.

The Serbian opposition, NGOs and independent media are under intense pressure from the regime and have recently held demonstrations arguing that political spin about positive grades in the Progress report might be the last nail in Serbia’s EU integration coffin. The EU must restore its credibility by applying strict conditionality and fair assessment and not merely pretending to do so.

Furthermore, we must thoroughly investigate the level of institutional capture and restore the Commission’s integrity, which should be again the Guardian of Treaties.

There must be no compromise on the rule of law in either the Berlaymont or Budapest and Belgrade. What is at stake is the integrity of the European Commission in the Western Balkans and the EU as a whole.

[Edited by Alice Taylor]