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Rule of Law in Central and Eastern Europe
Abstract
Pursuant to the same logic that prevailed when Jean Monnet and Robert Schuman reached out to Germany after the end of World War II, and in keeping with the promise made in the Preamble of the founding treaty, the EU now reached out to Central and Eastern Europe after the end of the Cold War and offered integration. In recognition of the difficulties for the EU on the one side of absorbing a large number of countries without jeopardizing the functioning of the institutions, and the difficulties for the Central and Eastern European Countries ("CEECs") on the other side of transforming themselves into modern democracies with rule of law and functioning market economies, a number of pre-conditions for accession and a number of support schemes for the transformation were established. The present Article analyzes those pre-conditions that were supposed to promote the development of rule of law, as well as those schemes that were intended to support this development. It concludes that first, the concept of “rule of law,” although often quoted, is poorly defined and understood and this is an obstacle for countries aspiring to build a system based on rule of law. Second, Western support for the transformation in Central and Eastern Europe was and continues to be a combination of trial and error with a lack of appreciation of historic precedent and lessons.
... Conversely, positive externalities, i.e. benefits to third parties other than the decisionmaker(s) or partners of a deal, can be a justification for government subsidies. 50 Concentration is the problem of individuals who prefer to cooperate rather than compete. The ideal market is one of perfect competition, 51 characterized by an infinite number of small sellers constantly negotiating deals with an infinite number of small buyers (see figure 1), where transactions costs tend towards zero and full information transparency prevails. ...
... 49 Krugman and Wells, 2006, dedicate an entire chapter of their well-known textbook to negative externalities using the example of acid rain caused by coal burning power plants and other polluters, at pp. 455-474. 50 An example of positive externalities could be the social benefits of education or the environmental benefits of the installation of solar panels by homeowners. For discussion see, for example, Krugman and Obstfeld, 2008, at pp. 267 et seq. ...
... While Egypt may provide lessons of how not to introduce competition oversight, 102 the reforms enacted in India since 2007 seem much more in line with the recommendations in this essay and, therefore, an example of how to get the job done 99 The term "rule of law" has become at the same time more popular and ill-defined. For a systematic discussion of different definitions and the proposal of a better model see Emmert, 2008, especially pp. 551-569. ...
The article discusses first the differences between market economic models, socialist or planned economies, and economies controlled by monopolies or cartels, to make the case for competition supervision. Subsequently it argues for a broad approach to competition supervision - beyond a narrow view of antitrust law. The second part of the paper discusses monopoly or dominant position and the criteria to measure them. It reviews the reasons for merger control as a preventive step against monopoly or dominant position. Finally it discusses the issues related to collusion in the form of cartels and how to detect them. The third part of the paper focuses on the best ways for developing and transition countries to introduce or reinforce comprehensive competition supervision: Functioning institutions and how they have to be empowered and structured; priorities to be set; how competition oversight has to be embedded in the legal system, including court review; and why effective enforcement is so important and how it can be promoted. In an annex there are links to some 75 countries which have newly introduced competition laws in the past 25 years and their legislative materials. Finally, there are links to another 30 countries which have substantially revised their legislative bases in the same time frame.
... They support commercial transactions among agents that do not know each other, might not meet again and can therefore not rely on reputation and repeated interaction (Beck, 2012). The importance of "the rule of law" is unquestionable, since the European Union can exist without an internal market, but it cannot and does not exist without "the rule of law" (Emmert, 2008). In the context of EU enlargement, it is obvious that the EU Commission had to set the institutional guidelines for CEE countries in their pre-association phase. ...
... Accordingly, the development of the legal framework (and other institutional features) was heavily supported by Western countries, while the implementation itself was based on trials and errors (Emmert, 2008). However, there is significant progress in this field and the process is still active, since the institutional framework follows dynamic social changes within the EU community. ...
This article investigates the impact of institutional variables on economic activity (GDP) in 19 Central and Eastern Europe (CEE) countries, covering the period 1999–2016. We utilise Principal Component Analysis (PCA) to construct a hybrid measure of economic freedom, and the Random Effect model to estimate the causalities. The analysis shows that many CEE countries have improved their institutional setting, especially the control of corruption. The regression results indicate that the control of corruption and democracy have a positive and significant impact on the GDP. Also, political stability promotes growth, while the quality of regulation is statistically insignificant. Finally, the rule of law and economic freedom accelerate economic growth. Overall, the legal framework, political stability and economic freedom shape the economic reality in the CEE region. We conclude that institutions matter for growth in the CEE countries.
... Instead, they drew on tested principles of field-proven processes and adapted them to innovative circumstances. The French, American, and German constitutional systems have had a decisive influence on the constitutional status of contemporary European democracies (Emmert 2009), significantly contributing to the definition of positions of presidents within the hierarchy of state institutions. Presidents are often regarded as crucial figures at the top, with significant responsibilities, decision-making roles, and ceremonious authority. ...
... 80 (Sanger et al. 2021). 81 (Roy 2014;Emmert 2009). 82 Larson, Footnote 73 above. ...
This paper considers how science fiction, and the subgenres of speculative historicism and futurism in particular, might open legal discourse to hitherto unseen and potentially instructive perspectives. It begins with the proposition that recent historical events of global significance such as the election of Donald Trump in 2016, the outbreak of the Covid19 pandemic of 2020, and the extreme weather events of 2021, were widely predicted and foreseen in the media by way of political reporting as much as popular social and natural science reporting in the years and decades prior. The same tropes were also present in the plotlines of popular literature, television, and film during that period. The central argument of the paper is that before media pundits and policy-makers expressed their surprise at the fragility of the Rule of Law in the “unprecedented” ascent of Trump, the lethal capacity and transmissibility of a “novel” coronavirus, and the “sudden” arrival of climate change in the daily lives of North Americans and Europeans, the spectre of these menaces had already penetrated our collective conscious in a way that ought to have changed outcomes. Neil Postman’s conceptualization of the present epoch as “Technopoly” is a means of explaining how, despite ample warnings, we were not ready for much. Technopoly refers to the historical present as the historical moment in which the technocratic capacity of individuals, states, and markets to respond to existential problems is hindered by information overload, e.g., the threat to the Rule of Law presented by an outgoing American President who refuses to accept the verdict of the electorate; the threat to public health posed by persistent vaccine misinformation and inequitable global vaccine distribution; and, the threat posed to our collective habitat by extreme climate events. The paper concludes that fiction is a powerful potential antidote to the numbing effects of information overload in Technopoly if it is treated seriously as a source of normative authority rather than dismissed as pure diversion.
... While Egypt may provide lessons of how not to introduce competition oversight, 102 the reforms enacted in India since 2007 seem much more in line with the recommendations in this essay and, therefore, an example of how to get the job done 99 The term "rule of law" has become at the same time more popular and ill-defined. For a systematic discussion of different definitions and the proposal of a better model see Emmert, 2008, especially pp. 551-569. ...
This paper argues that the new form of auditing introduced by the recent EU regulations is not problematic but
creates issues that have to be taken into account by all interested parties. First, the expectations between the users of the financial reports and auditors are wider. Second, auditors’ independence is damaged due to the long years of auditor tenure and dependence of non-audit fees generated from consultancy services that not related to audit.The recent law reforms issued by the European Commission has brought some important provisions in terms of filling the expectations gap, reinforcing auditor independence and reducing the familiarity threat. EU’s relatively strict rules on provision of non-audit services and audit firm rotation are expected to have an important impact in the audit market. A critical analysis of the new EU law is submitted with some policy recommendations.
This paper examines international and European norms concerning the principle of the rule of law and its implications for the Republic of Serbia’s legal order. There is no universally accepted definition of the rule of law, but some common elements can be found in international legislative acts and jurisprudence. The European Union and Council of Europe have substantial legislation on this issue; with their courts’ jurisprudence, they have a significant influence on their Member States’ comprehension of the rule of law principle. The Republic of Serbia has embraced the principle in its Constitution and developed it in its legislation. It will also accept and include European interpretations of the rule of law in its legislation and judicial and administrative practice by joining the European Union.
In the last decades, we observe an increase in judicial self-governance all over the world. Encouraged by a variety of international documents, governments have given up on some powers regulating the judicial branch in favor of judges in an attempt to secure independence and better performing judiciary. Special emphasis has been placed on the issue of judicial careers, which according to these documents, should be administered by judges. Slovakia is one of the countries which went from a model of an administration dominated by the Ministry of Justice, to one in which bodies, where judges constitute a majority, make most of the decisions. Despite that, the Slovak judiciary meets expectations neither with regard to perceived independence, nor performance. This thesis looks at the process of selection of Slovak district court judges between 2012 and 2015 in the context of expectations of the truly independent judiciary when these powers are transferred into the hands of judges. To the theoretical discussion on judicial independence, the thesis introduces a step towards a unified theory of the concept, which aims to tie institutional design with outputs of the system through the substantive use of powers to change the composition of the judicial branch. Judicial independence is here defined as a consequence of the interplay between powerful actors’ capacity and willingness to influence courts in combination with resistance exercised by judicial actors. This definition acknowledges that threat to independence may not come only from external actors but includes internal threats as well. Internal threats are then a possibility when formal powers to influence courts belong to judiciary itself, and the judiciary has its own distinct interests to further. These are in a post-communist context related to bureaucratic and corporatist attitudes, which try to ensure the survival of existing practices and protection of the status quo. It is hypothesized that these attitudes are realized through preferring the selection of such candidates with higher social capital – knowing the ‘right’ people, and higher cultural capital – being educated and socialized with ‘right’ values. With regard to the methodological contribution, the thesis introduces Judiciary Autonomy Index, which measures allocation of formal powers concerned with professional careers of judges – hence, de jure institutional independence. This is in turn examined in the light of actual functioning of the process of selection of judges, understood as a funnel, where from eligible candidates only some are actively considered, of those only few are shortlisted, and of those only one is selected and eventually appointed. For this, the thesis uses a variety of statistical methods and finds that candidates with higher social and cultural capital are consistently preferred in the process as a whole, as well as in its particular stages.
Central and Eastern European countries have in last decades faced several obstacles to establish full-functioning liberal constitutional democracies and the rule of law. This article studies the impact of the European Court of Human Rights on the rule of law in Central and Eastern Europe by examining reasons for high number of judgements finding violations and difficulties in executing judgements in several of Central and Eastern Europe states. It analyses the contribution of the European Court of Human Rights in Central and Eastern Europe and asks whether its judgements have provided fundamental standards in the key dimensions of the rule of law. It does so by establishing the quadruple theoretical framework of the rule of law composed of: dealing with the past violations; the independence, impartiality and fairness of judiciary; pluralism, broadmindedness and tolerance; and protections under the right to life and the prohibition on torture, inhumane and degrading treatment. Central and Eastern European states have in last decades attempted to translate the rule of law de iure within governmental institutions and beyond. They have also attempted to internalise the values of the rule of law, constitutional democracy and democratic process. Equipped with this knowledge, this article argues that the European Court of Human Rights has contributed to establishing the rule of law de iure in Central and Eastern European countries, however its impact on the rule of law has been in practice limited due to institutional and policy limitations and wide-spread conundrums relating to the separation of powers, weak institutions and corruption. Therefore its values have yet to be internalised fully in domestic settings.
The international community’s efforts to promote the rule of law and human rights in developing countries have been largely unsuccessful. This record of disappointment is typically attributed to a lack of political will for reform in the host societies. As a result, an estimated four billion people worldwide are without access to human rights, and suffer without recourse from discrimination, theft, and other forms of physical and emotional harm.In order to more effectively bring about reform, it is time for rule of law promoters to draw upon the lessons of social science, and particularly the study of social movements. This Article represents the first effort to view the challenge of instilling political will for law reform through the prism of social movement theory and its analysis of events like the U.S. civil rights movement, the South African antiapartheid movement, and the Eastern European democracy movement. This social movement analysis reveals substantial reason for optimism about achieving significant law reform in developing countries. Rule of law promoters must re-orient their approach and begin supporting the existing and evolving grassroots law reform organizations that mirror in key respects the organizations that have proven to be the catalysts for change in social movements. Properly supported, these organizations can grow and nurture the political will for access to justice that is so desperately needed by billions of people in the developing world.
EU enlargement and the incorporation of the acquis communautaire are widely seen as successful and emboldening the integrity of political, administrative and legal institutions in Central and Eastern Europe (CEE). The analysis reported here describes the specific problems associated with affirming institutional integrity in the field of public procurement, which constitutes a ‘tough test’. Public procurement is namely an area where the acquis swiftly gained pre-eminence in accession states, but whose complex regulations depend on a well-functioning judiciary, effective administrative supervision and limited corruption. The experience in Poland and Bulgaria, countries that represent different stages of institution building in this area, is compared. The results suggest that an EU-compatible public procurement regime is being consolidated throughout the CEE region. At the same time, that regime may only work well when boundaries between institutional subjects, as well as between the spheres of law, politics and economics, are upheld in post-communist countries.
This article seeks to provide a comparative overview of relevant practice of the European Union ("EU") and the World Trade Organization ("WTO") with regard to the interpretation and use made of "good governance," and in particular with regard to "transparency," one of its core component elements.
In May 2004, ten new countries, all but two from Central and Eastern Europe, joined the EU. Suddenly, the European judiciary encompassed a panoply of courts which have just emerged from decades under communist rule. The problematic background of the post-communist judiciary discourages many legal experts. The soon to be European judges come from authoritarian and totalitarian traditions; they were trained under a centrally planned economy; and last but not least, many of them received a legal education which might be considered rather problematic from the Western view.
This article, published in 1995, examines and criticizes the results of Law & Development research since the 60's, based upon two collections of texts published in the 90's. It presents and shows the shortcomings of the two most important theoretical paradigms in the champ, the modernization theory and the dependency theory, and examines the nature of the crisis that dominated the L&D studies since the publication of the 1974 article " Academics in self-estrangement..." by David M. Trubek and Marc Galanter. It argues that the crisis that dominated the champ is a manifestation of a broader crisis that results from the hegemony of post-modern thought and its lack of confidence on social sciences heuristic power. The article also examines International Law texts on the " right to development" and the then recent production on L&D.
The following sections outline four main phases in the history of European integration. First, this Article examines the decisive contribution that European integration made in the immediate postwar years to solving the German question and achieving Franco-German rapprochement. Second, it looks at the steps taken in the mid-1950s to launch the broader European Economic Community (“EEC”). The next section explains the difficulties encountered in completing the single market, which were eventually overcome in the late 1980s. The mixed record of the EU, launched in 1993 following ratification of the Treaty on European Union ("Maastricht Treaty"), is then examined. The final sections provide a brief assessment of the achievements of European integration and an overview of the integrative opportunities and individual initiatives that have characterized the process so far.
This article examines the impact of European integration on the central executives, i.e. the central government and the ministerial bureaucracy, of the Czech Republic, Estonia, Hungary, Poland and Slovenia (CEEC-5) by distinguishing five stages of 'Europeanization'. The EU pressures candidates to reform their national administrations in anticipation of membership. These pressures are not uniform, but involve different 'mechanisms of Europeanization' and modes of governance. National reactions and solutions do not converge, not least because there is no single model of national administration in the EU itself. Moreover, the EU does not offer a precise administrative target zone for the adaptation process. In the current membership negotiations, the central executives of the CEEC-5 play a dominant role. This could reinforce a trend towards the strengthening of officials at the expense of other political actors in the EU policy cycle after accession. Anticipated EU membership is a driving force for administrative reform, but the candidate countries still need medium-term strategies for developing into efficient multi-level players in the European policy-making process.
The EU influences the development of governance in central and eastern Europe through its accession process in ways that go well beyond its official competences in the current member states. However, the EU's impact is diffused by the complexity of actor constellations involved. Moreover, it lacks the comprehensive institutional templates that would be needed to shape political institutions into an identifiably 'EU' mould. Instead, EU influence interacts with other pressures, both external and internal, becoming woven into domestic debates about institutional change. Accession conditions and negotiations privilege a relatively small group of central government officials over other political actors. The lack of involvement of parliamentarians and wider society in the accession process could, in turn, exacerbate the EU's own democratic deficit after enlargement.
It is quite difficult to write about my topic due to the extensive debate on the Constitutional Treaty, prepared by the European Convention. The work of the European Convention has been closely connected with the first wave of eastern enlargements. This connection was confirmed by Chancellor Gerhard Schroeder who, in the Palazzo dei Congressi in Rome on October 4, 2003, the first day of the inter-governmental conference, said that "enlargement and the constitution are two sides of the same coin." The complexity in writing about the enlargement process is that it is difficult to decide which perspective to adopt-that of the Eastern European, which I am, or that of theWestern European. It is also possible to adopt a third perspective, that of a sympathetic external observer. In this chapter I have opted for a different approach: not the position of an impartial judge nor a prosecutor or defence lawyer but that of a sceptical lawyer, similar to what is known in legal procedure as an expert witness. The arguments for such an approach are partly obvious. I am an academic lawyer with interest in the constitutional structure of the European Union. I am also an Eastern European with some insight into the problems faced by the citizens of the new Member States. The structure of this chapter is simple. I argue that Eastern Europeans wanted, and still want to, join the European Union but a Europe from the past rather than the present. I go on to look at the issues connected with the relationship between enlargement and constitutionalization in the European Union. I finish with some sceptical remarks relating to the prospects for a European rule of law.
The European Union's pre-accession conditionality was very effective in prompting the alignment of the post-communist candidate countries with EU law. As the conditional membership incentive was the main factor driving alignment, the changing incentive structure after accession suggests that - ceteris paribus - post-accession compliance with EU law will deteriorate. Data on infringements of EU law allow us a first insight into whether this negative scenario has materialized. The data suggest that, far from constituting an 'eastern problem', virtually all of the new member states outperformed virtually all of the old members during the first four years of membership. To explain this unexpectedly good performance, further research should focus on two factors, both related to the experience of pre-accession conditionality: a greater susceptibility of the new member states to shaming and an institutional investment in legislative capacity.
This paper tests the argument that assigning countries into three worlds of compliance helps to explain transposition performance in the European Union. Looking into what cultural features distinguish the 'culture of compliance' worlds shows that attitudes towards law-abidingness and rule-following, and trust in the EU institutions, are not directly related to membership in the three types. Then, focusing on the explanatory potential of the typology, the study finds that levels of non-transposition are consistent with the argument although the differences between the groups are only marginally significant. The implications of the typology for the variability of transposition performance and the differentiated impact of domestic politics in the compliance worlds are not, however, supported by the empirical analysis of yearly policy-specific data on non-transposition rates (1998-2005).