Discrepancies in European Union Pre-accession Evaluations: An Assessment of the European Commission’s Progress Reports

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Discrepancies in European Union Pre-

accession Evaluations: An Assessment of the European Commission’s Progress Reports

Author: Joel Gustafsson Hall Mentor: Thomas Persson

Word and Page Count: 13 978, 49 pages Subject: Political Science

Institution: Uppsala University, Department of Government

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Abstract

This study investigated whether EU Progress Reports measured the Copenhagen political criteria in a biased manner compared to independent indices. At stake is the credibility of the EU accession process and whether countries in the Western Balkans will seek partnerships with the EU or state-actors beyond the European peninsula. This is a case study of how well Albania and North Macedonia fared regarding the political criteria during 2014 and 2017.

Each country was ranked against one another in order to find potential discrepancies between measurements from Progress Reports and independent indices. This paper did find evidence that suggests the European Commission disfavored North Macedonia and favored Albania.

However, other results were inconclusive. The finding supported accession literature that has called into question the objectivity of the EU accession process.

Keys Words: EU accession, Copenhagen political criteria, Progress Reports, Western Balkans, Albania, North Macedonia, good democratic governance, rule of law, bias

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1. Introduction

Jean-Claude Juncker, former President of the European Commission, delivered a decisive message concerning enlargement of the Western Balkans in his State of the Union address 2018. He stated that “[w]e must find unity when it comes to the Western Balkans – once and for all. Should we not, our immediate neighborhood will be shaped by others.” (Juncker, 2018). This quote emphasizes the saliency of the enlargement into Southeast Europe for the European Union (EU). The Western Balkans accession into the EU is supremely relevant from both an academic and societal standpoint. Serbia, Albania, North Macedonia and

Montenegro are all seen as likely candidates to join the EU within the next decade. In fact, the European Commission (EC) have stated that with the delivery of ‘real and sustained’ reforms, in addition to solving sovereignty disputes with neighbors, that they might be eligible for membership in a 2025 perspective (European Commission, 2019a). However, in the past few years many Balkan countries have grown weary of an EU they perceive to be dangling fake promises of accession (Transitions Online, 2017). This frustration has been exacerbated by the lengthy and high-profile process of Brexit - which contributed to enlargement fatigue by many leaders and voters - and now with the COVID-19 pandemic, accession for the Western Balkans becomes less likely.

At stake is the credibility of the whole EU accession process, and the effectiveness of the EU’s foreign policy has long rested with its ultimate incentive of membership. This incentive is only useful if the offer of membership remains credible upon fulfillment of the Copenhagen criteria, and not at the whims of member countries (Noutcheva, 2012). The Copenhagen criteria, or promise, is when those countries eligible for membership fulfill the political, economic, legal and administrative requirements set in the Copenhagen summit of 1993; they may become members of the European Union. These conditions, or as it’s known in the academic literature – conditionality – is at the heart of Europe’s democracy promotion and state-building (Noutcheva, 2012). However, Feketija and Lazowki (2014) conclude that at risk for the EU is not only the legitimacy of their foreign policy within the Western Balkans, but also its Europeanization of the region. Stalling the pre-accession process without good reason or sufficient credibility could strengthen positions of rival powers, such as Russia and China, within the Balkans (Feketija and Lazowski, 2014).

The European commission claims in its enlargement package in 2017 that accession into the EU is based on already established criteria while simultaneously characterized by ‘fair and rigorous conditionality’. The EC further describes the process as “…objective and merit- based” (European Commission, 2017). However, Grabbe (2001) criticizes the notion that the accession requirements set by the EU are ‘objective and merit-based’ due to the vagueness of the Copenhagen promise. Grabbe (2001) writes that the European Council (EUCO) have been adverse and/or unable to provide guidance in how these lofty values can be concretized into a specific list of conditions to achieve. The Copenhagen promise therefore relies on vague definitions of their democracy standards that are difficult to evaluate objectively. The

European Commission (EC) was tasked with operationalizing democracy and then to measure the state of democracy in any given candidate country. The annual EU Progress Reports are

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5 how then the EC fulfill this mission. In the end however, this leaves considerable discretion to the EC in what to demand regarding the Copenhagen political criterion as well as deeming what to be sufficient in meeting those requirements (Grabbe, 2001). Furthermore, Noutcheva (2012) clarifies the benefits for the EU to have vagueness and uncertainty inherent in its conditionality requirements. If the instructions to accede into the Union were clear, the EC loses leverage prematurely if it would later wish to deal with either unexpected or

unanticipated problems. The vagueness and complete control over Progress Reports allow the EC to add even non-Copenhagen issues – such as matters dealings with sovereignty - into the reports while keeping pressure on candidate countries. In the end, these uncertainties

concerning the objectivity of how accession-progress is measured endangers the legitimacy of EU foreign policy.

1.1 Research Question and Purpose

The aim of this academic work is to investigate whether the evaluations in the EU Progress Reports are progress-based – as the EC claim they are –, or if they are arbitrary, through comparison with independent evaluations. Specifically, the focus will be on the Copenhagen political criterion, and the indicators used to operationalize it and then to examine it. The political criterion states that membership “…. requires that the candidate country has achieved stability of institutions guaranteeing democracy, the rule of law, human rights and respect for and protection of minorities” (European Council, 1993a). The indicators for the study are good democratic governance and rule of law.

The EU uses a qualitative evaluative category for determining the stage of completion of its indicators, which is in stark contrast to other research centers whom use quantitative

assessments. Qualitative level estimations often lack the clarity and ease of comparison that quantitative level estimations have. The EU’s deliberate methodological choice of using semi-qualitative indicators for their progress, and the discretion that potentially allows the EC, is the justification for this study. In other words, the credibility of the EU Progress Reports is the matter being examined.

The research question is the following:

Are there systematic discrepancies between how the indicators (good democratic governance and rule of law) in candidate countries are evaluated by the EU Progress Reports and the independent indices?

Systematic discrepancies are considered in this paper to be repeated differences that occur within the evaluations. For instance, if one country is repeatedly given a higher score than it achieves with the independent evaluators, there is proof of systematic discrepancies.

If systematic discrepancies were found, the EU Progress Reports might be intellectually and politically compromised. Furthermore, if such a compromised result was discovered, it would necessitate further inquiry into the design, logic, or interests behind the Progress Reports.

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6 However, such an inquiry is outside the scope of this study, due to the paper only having a descriptive purpose in nature.

2. Theory

2.1 Previous Research

Viljar Veebel examined if the EU “… follows official and objective criteria in its Progress Reports or if it’s dominated by institutional and national interests” (Veebel, 2011, p. 1).

Veebel tested his hypothesis by comparing the EU Progress Reports to calculations and reports done by six other reputable research organizations. His findings showed that the EU utilized two different evaluation methodologies in their Progress Reports in order to justify political reality. Firstly, his research found that there exist five essential accession criteria, which can be measured quantitatively. Here the EU tended to use a semi-quantitative

assessment that made it possible to inject a more subjective image into the Progress Reports.

This was additionally useful for the EU so that they could leverage candidate countries to also implement non-Copenhagen Criteria. Progress -or lack of progress - according to official criteria were therefore subject to EU’s combined political will and attitude towards the countries of Central and Eastern Europe. Lastly, Veebel found in his analysis of Croatia, Former Yugoslavia Republic of Macedonia, Bulgaria and Romania that between 2004-2006 that these Progress Reports were not objective. Instead, they subjected themselves to a political reality where it was politically necessary for Romania and Bulgaria to be accepted but Croatia rejected (Veebel, 2011).

2.2 Background

In this section, background information necessary to understand the Copenhagen criteria and EU accession process will be provided.

2.2.1 The Copenhagen Criteria

In June 1993, the European Council (EUCO) held a summit where they proclaimed that countries within the European peninsula, not already members of the EU, would be eligible to become members if only they satisfy the ‘Copenhagen criteria’. The EU would undergo several enlargement surges after this where countries acceded into the Union (Cameron, 2012). It was later in 2003 that the EUCO met in Thessaloniki to offer a more concrete roadmap to accession for the Western Balkans (Cameron, 2012, p. 84).

The Copenhagen criteria are the rules which a nation-state must fulfill to be considered eligible for membership within the European Union. The criteria, or principles, are meant to embody the spirit of the European Union. Marktler (2006) categorizes the Copenhagen

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7 agreement under three designations. The first is the political. These can be distilled into four aspects being rule of law, democracy, human rights and protection of minority rights. The second criterion concerns the economic; in which a market economy must be proven to be both functioning and capable to compete in the EU. Marktler defines the last criterion as the arquis criterion, aptly named after the acquis Communautaire, or ‘Community law’,

accumulated throughout the European Union. Basically, this is the legal framework that each member country must either abide from a supranational scale or incorporate into their own legislation. The Madrid European Council 1995 added a criterion for a more effective

implementation of the acquis, resulting in candidate countries expanding their administrative structure (Marktler, 2006). Lastly, additional sovereignty requirements were placed on the Western Balkans conditional to EU-accession due stability and security concerns.

2.2.2 Accession

The EU accession process broadly consists of three steps. Firstly, a country may submit an application of wishing to join the EU to the European Council. Before that, countries can be known as potential candidate countries, such as Kosovo. The European Commission monitors all countries aspiring to accede and therefore has Progress Reports on said country containing an opinion on the application. This opinion is delivered to the European Council where a consensus from each Member State’s government is required to accept the application. Now the country in question is granted the status of being an official candidate for membership (European Commission, 2016a). Secondly, the next step for the candidate country is initiating formal membership negotiations – or more commonly known as accession negotiations. This is the step where progress of the Copenhagen criteria is measured, and the country must adopt all the EU’s rules and laws. Thirdly, when negotiations and EU reforms have been

accomplished to the satisfaction of both parties, then the last phase begins. Now the European Commission gives its opinion if the country should be accepted into the EU. This process requires the consent of the European Parliament as well. Next, the country needs a unanimous vote in the European Council in order to close negotiations and sign an Accession Treaty.

Lastly, each Member State needs to ratify the Accession Treaty through their own

constitutional rules. When all Member States have formally approved the Accession Treaty, then the country is officially granted EU membership (European Commission and

Directorate-General for Neighborhood and Enlargement Negotiations, 2015, pp. 12–17).

2.3 Hypothesis

Previous research has found strong evidence to suggest that the EU utilized discretion when measuring progress of candidate countries; thereby advantaging or disadvantaging certain nation-states in the accession process due to geopolitical realities. This tendency in EU foreign policy is what inspired this study to have the following hypothesis:

There will be systematic differences between the EU Progress Reports and the independent indicis, since the European Commission will disfavor both nation-states.

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8 If this were to be the case, then it would justify a larger study to examine all enlargement countries to ascertain whether more biases are affecting the measurements. On the other hand, if there are no systematic differences, then this will strengthen the EU claim that the ‘fair and rigorous conditionality’ is indeed “…objective and merit-based” (European Commission, 2017). If this outcome were to occur, then it would behoove new studies to test whether the EU has improved the objectivity of their accession process.

3. Methodology and Material

3.1 Research Design

The research will be primarily based on the Progress Reports released annually on prospective countries wishing to join the EU. These reports are written by the European Commission (EC) for not only the EU’s own institutions, but also for the countries wishing to accede.

The research design in this study is heavily influenced by Viljar Veebel’s (2011) “Relevance of the Copenhagen Criteria in Actual Accession: Principles, Methods, and Shortcomings of EU Pre-Accession Evaluation”. However, pragmatic changes have been necessary as

Veebel’s study lacks methodological clarity at times. This author will, therefore, only use the research design as it remains an innovative model of examining credibility of EU Progress Reports.

The time period that Viljar Veebel (2011) studied Progress Reports were especially fruitful as, at this time, the Progress Reports would rank each country as which was deemed by the EC to be the farthest along in completing the pre-accession requirements. This incentivized reforms towards EU norms as no country wanted to fall behind the others. The ranking phenomena also provided opportunities for concrete comparative analysis between the EU Progress Reports and the independent research institutions. One of the first methodological problems for this study is then to overcome the lack of explicit ranking in the Progress Reports that this paper examines. In order to make a constructive comparison between the independent

indexes, relevant estimations in each report will be amassed. This author will then assign a rank to each nation-state relative to the other according to how this author interprets how the EC has rated the political criterion in each country. In addition to the comparison between countries, the indicators will be measured from different points in time in order to study trends. The ranking phase of the study will be the one most likely fraught with unintentional biases and mistakes, which is why extra care will be taken to make the process as transparent as possible.

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9 3.1.1 Why the Balkans Matter

It is said that to assess the EU’s external performance, one must check with the Balkans (Cameron, 2012, p. 156). They remain the essential gauge for the Unions capability with foreign policy. The Balkans are imperative as instability in that region – regardless if social, economic or political- affects the stability of member states too (Cameron, 2012, p. 155).

However, it has often occurred that the EU and the people in the Balkans have had differing opinions of the best ways to maintain peace and improve governance in the region

(Noutcheva, 2012, p. 51). It is not surprising that the enlargement policy has then been quintessentially known as a security policy by academia as well as its proponents.

Enlargement as a security method is therefore to expand the norms, rules and opportunities that already exist within, but which spread, would foster stability for the EU (Cameron, 2012, p. 86). Therefore, when the break-up of former Yugoslavia threw the region into a bloodshed that the EU was unable to stop – but that NATO could -, the EU later responded with

measures to bring the Balkans into the European Union fold.

However, if the EU does not bring the Western Balkans into the EU fold, opportunities arise for external state-actors to gain a foothold in the region and destabilize EU norms. The importance of enlargement into the Western Balkans is maintaining stability as well as ensuring prosperity for the members states. However, if accession into the EU is perceived as arbitrarily delayed, the EU loses influence over the region. This geopolitical reality allows for a multitude of academic studies, and this paper focuses on the credibility of the EU accession process, which determines whether the Western Balkans will seek ties to the EU or beyond the European peninsula.

3.1.2 Case Selection

Two countries have been chosen from the Western Balkans in order to examine the research question. These nation-states are Albania and North Macedonia. North Macedonia has until recently been called the former Yugoslav Republic of Macedonia, but in the interest of clarity, the nation-state shall be exclusively called North Macedonia henceforth. The countries have been partly chosen for their similar background. Albania and North Macedonia share a similar history by both having a long-lasting Ottoman legacy in their cultural foundations, but the resemblance becomes clearer due to the extended Soviet ideological influence under the rule of Enver Hoxha respectively Josip Broz Tito. The nationalistic socialist system built under those years remain in the foundations of these countries, despite economic and political reforms towards liberal democracy and capitalist market economies (Peshkopia, 2014, p. 35).

When considering the institutional legacies of both countries, it is not surprising that the EU highlights the necessity of rule of law for former Soviet-satellite states – as Albania’s institutions ran counter towards EU transition and North Macedonia had hardly any institutions to speak of. Both countries being post-communist had had economic models based on the Soviet-style mega-industrialization concepts, which invariably failed and left both economies in shambles.

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10 There are several differences between the nation-states as well. Today, North Macedonia’s BNP per capita is at £ 4800, which makes it the 3^rd richest enlargement country in that aspect, while Albania is the 2^nd poorest at £ 4000 BNP per capita. Ethnic homogeneity diverges significantly, as Albania is an overwhelmingly homogeneous society, while North Macedonia is heterogeneous with a large ethnic Albanian minority (Peshkopia, 2014, p. 38).

The case selection is justified on the notion of most-likely cases (Esaiasson et al., 2012, pp.

161–164). The circumstances involved creates a conducive environment for the hypothesis to be tested. Due to the overwhelming similar qualities of the two countries in question, as well as that they are last two candidate countries that got accepted into accession negotiations simultaneously in March 2020, an assumption can be made that they should be treated

similarly by the European Commission. If this were not to be the case, this could be evidence of systematic misjudgments from the EC.

3.1.2.1 Temporal Points of Interest

The temporal points of interest will be 2014 and 2017. 2014 was chosen as the baseline as this was the year when Albania was awarded candidate status from being a potential candidate.

The year is not as significant for North Macedonia as the EC recommended for a sixth time to the European Council (EUCO) to open accession negotiations with the country. 2017 was chosen because of the tumultuous time it represents in North Macedonia’s political landscape.

Counterintuitively, to examine the year 2017 the Progress Report from 2018 must be utilized as it covers the time period between October 2016 and February 2018. This means that the full year of 2017 is being studied, but an additional 5 months is included. Therefore, this study will only report on events occurring within the year 2017. This will minimize issues of validity stemming from the EU Progress Reports irregular format. The 2014 reports cover the time between October 2013 to September 2014. As the report covers this year for most of the reporting period, it shall be the year of interest. However, caveats will be issued in this section as events that occur in the end of 2013, or latter months not covered in 2014, cannot be

compared to independent evaluations. Both 2018 reports for the respective countries contain an unconditional recommendation from the EC to start accession negotiations. There is also a gap between the two points in time that will allow any change to have occurred to be more visible. Thusly, the paper can examine if changes in how the political criterion is measured differs from the EU Progress Reports to the independent evaluations.

3.2 Operationalization

The operational indicators chosen for the Copenhagen political criterion are; good democratic governance and rule of law. The reader should note that level of corruption as well as

protection and respect for human rights will be aspects of the rule of law indicator.

In this section, variables will be presented that operationalize each indicator. These variables will then, in the results section, be used to designate how well a country has fared within each

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11 aspect of the indicator. For the EU Progress Reports, each variable from each country will be ranked against one another in order to designate which country has fared better in that regard.

This will allow ranking of each indicator for every year in order to turn it into an indexed value, which can then be compared to the independent indices. Lastly, an overall score – which is a calculated average of all the variable values within an indicator- can be ranked against other overall scores in order to investigate whether EC evaluations are biased or not.

3.2.1 Good Democratic Governance – Indicator

This study utilizes good democratic governance to examine EU Progress Reports, to choose comparable indices, and to analyze the results. The indicator will be operationalized by the following variables: level of democracy, level of separation of powers, level of government control of agenda and ability to implement reforms, level of civil society and freedom from repression. These variables are inspired by Veebel as he in part utilized the same variables such as level of democracy. These variables are defined in the Appendix under header 8.1.

Table 1 is an overview of how this study has constructed a comparison through the indicator of good democratic governance. It can also be divided between the theoretical and the operational. The theoretical part showcases the part of the political criterion which will examined through this indicator. The operational part provides an overview of the four variables that operationalize good democratic governance. The last section showcases the material that will be examined using the indicator. Each column is meant to provide an easy overview of the reporting period and structure of both the EU Progress Reports as well as the independent indices. The variables - but not sub-variables - for each index are displayed here to clarify what is being measured from the indices. The sub-variables can be found in a more expansive table in the appendix.

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12 Table 1. Good democratic governance in EU Progress Reports, Democracy Index, and

Nations in Transit.

(**Full explanation of variables can be found in the Appendix.)

3.2.2 Rule of Law- Indicator

The rule of law indicator is operationalized by the way of the three variables: level of judicial process, level of corruption and efficiency of anti-corruption activities, level of fundamental rights and their enforcement. These variables are partly inspired by Veebel’s study as he utilized the first two variables in his paper. These variables are closer defined in the Appendix under the header 8.2.

Theoretical Operationalization Material Material Material

Copenhagen political criterion

Good Democratic Governance

(indicator)

EU Progress Report

The Economist Intelligence Unit (EIU) Democracy

Index

Freedom House’s Nations in

Transit Reporting

Period:

Reports vary from year to year.

Reporting Period:

Title year.

Reporting Period: Annual Reports cover previous year.

Variables Variables* Variables*

The political criterion is partly defined as “stability of institutions guaranteeing democracy…”.

The next column will describe how this will be measured theoretically.

- Level of democracy - Level of government control of agenda and ability to implement reforms - Level of

separation of powers - Level of civil society and freedom from repression

→ overall score, which is a

calculated average of all variable values

EU Progress Reports measure this part of the political criterion in two sections, namely

‘democracy’

and ‘public administration reform’.

-Electoral process and pluralism - Functioning of government - Political participation - Democratic political culture

- National Democratic Governance - Electoral Process - Civil Society - Local Democratic Governance

Index Scoring* Index Scoring*

Index scoring 0 - 10, with 10 being the best.

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13 Table 2. Variables for rule of law from EU Progress Reports, World Justice Project rule of law index, and Nations in Transit.

Theoretical Operational Material Material Material

Copenhagen political criterion

Rule of Law (indicator)

EU Progress Reports

World Justice Project’s Rule of

Law Index

Freedom House’s Nations in Transit Reporting

Period: Annual report covers time as of last observation period one year forward.

Reporting Period:

2017-2018 issue covers 2017¹ and 2015 issue covers 2014.

Reporting Period:

Annual Reports cover previous year.

Variables Variables* Variables*

The political criterion is partly defined as the “stability of

institutions guaranteeing

… rule of law… human rights and respect for and

protection of minorities”.

- Level of the judicial process - Level of corruption and efficiency of anti-

corruption activities - Level of fundamental rights and their

enforcement

→ overall score, which is a calculated average of all variable values

EU Progress Reports measure this part of the political criterion in two sections, namely

‘Judiciary and fundamental rights’ and

‘Justice, freedom and security’.

- Absence of corruption - Fundamental Rights

- Regulatory enforcement - Civil Justice - Criminal Justice

- Judicial framework and independence - Independent media - Corruption

Index Scoring* Index Scoring*

Index scoring out of 00.0 – 1.00, 1.00 being the best.

(**Full explanation of variables can be found in the Appendix.)

3.3 Discussion of Source Material

The index developed by Freedom House is Nations in Transit. Nations in Transit is an index used to study progress and setbacks of democratization in 29 formerly communist states that dates to 1995. Each annual report covers the events from January 1^st to December 31^st of the previous year. The index for each country is written by Freedom House staff, academic advisors, regional experts as well as an individual author for each report. The ratings are

1 The WJP 2017-2018 issue covers the years 2017 and 2018, but only values from 2017 are utilized.

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14 based on 1 to 7 scale, with 7 demonstrating the lowest level of democratization and 1 being the highest. Nations in Transit differ variably from the other ratings systems as it follows a quarter-point scale. This means that positive or negative change, when minor or moderate, change by (0.25) while significant change would mean a change of (0.50) (Freedom House, 2016).

The Economist Intelligence Unit, which is a sister organization to the news publisher The Economist, has conducted its Democracy Index since 2006. They provide annual assessments of the global state of democracy. Each report covers the year in which it was reported in, i.e.

the Democracy Index 2018 measures how democracy fared in 2018. The Democracy Index is scored on a 0 to 10 scale with 10 being the highest (Economist Intelligence Unit, 2014, pp.

37–39). As the EIU does not specifically define what makes a change in scale slight or significant, this author will decide. As the EIU designate a type of regime – full democracy, flawed democracy, hybrid regime and authoritarian regime – along a 2-point scale, this author will designate a change of 0.50 and under as slight, and a change above 0.50 as significant.

Unfortunately, the EIU has in the variable ‘Functioning of government’ one sub-variable that measures an aspect of rule of law, namely the pervasiveness of corruption. This will lead to a case of double accounting, but due to the aggregated nature of the Democracy Index: nothing can be done about it.

The World Justice Project Rule of Law Index has been released near annually since 2008, and its goal is to “…systematically and comprehensively quantify the rule of law around the world” (World Justice Project, 2018, p. 165). Each report covers the year designated in its title. Each report is based on two original sources; a General Population Poll (GPP) and a Qualified Respondents Questionnaires (QRP). Essentially, each country assessment is a combination of polling within a country and legal expert opinion (World Justice Project, 2018). The World Justice Project utilizes a spectrum scoring system where 1 designates a perfect adherence to the rule of law while 0 infers no possible adherence. In other words, a higher score is better. Measurement is done by examining statistically significant change;

which can either be improvement or degradation (World Justice Project, 2015, p. 168).

3.3.1 Discussion of Validity

In order to ensure validity and transparency, an operationalization of the indicators requires compatibility between the source materials. The methodological problem here is that different sources might use the same indicators in name, but that the sub-variables within them can differ. The sub-variables that make up the indicators must be present in both source materials in order to uphold validity. Another consideration for operationalizing the independent indicators is that there are no added sub-variables as to make comparison inconclusive. In short, for comparisons to be analytically fruitful, each source must contain the same information as well as not adding additional information irrelevant to the study. Each indicator will be examined in their own respective section. For the interested reader, the

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15 appendix will include a summary of all variables and all sub-variables used by the

independent institutions as well as the EU Progress Reports.

3.3.1.1 Normalization of Indices

In order to better compare the independent indices between themselves in the analysis section, each index scoring system will be normalized to their maximum score. Generally, this

involves rescaling the index scoring spectrum to a 0 -1 scale. This is now the common scale which will be applicable to all the indices. The directionality of the scoring systems differs as well: For the WJP and EIU, a high score corresponds to a strong performance in the measured parameter. Nations in transit, however, grades a poor performance with a high grade.

Therefore, the directionality of Nations in Transit was adjusted by subtracting the score from the maximum score prior to normalization in the following formula x = ^(7−𝑥)₆ . Note how there are only 6 scores from 1 – 7, while the other scoring systems include 0. For the other indices, the EIU needs only to be divided by ten to achieve a normalization to the maximum score, and the WJP is already accounted for within the common scale.

3.3.1.2 Assessing Trend and Level Estimations

Methodological difficulties with EU Progress Reports stem from their vagueness regarding methodology, operationalization, but also whether the EC is employing the use of trend or level estimations. This paper will be employing the use of both estimations but differentiating between these two is vital, as one accounts for relative change, and the other is a static state of things. Both estimations are necessary as the paper cannot rely only on level estimations as there are some discrepancies between what the EC and the independent indices measure.

However, by adding further descriptions from trend estimations, each country can have its indicator assigned within a hierarchical ranking in relation to one another. In the analysis, trend estimations will be utilized to deduce whether an indicator progresses or regresses between the temporal points of interest.

As Albania and North Macedonia were deemed by the EC to have achieved levels sufficient for opening accession negotiations, level estimations must be included in the reports. There should therefore exist some level of democracy, rule of law and human rights protection, as well as sufficiently low level of corruption that the EC decides to recommend a country for accession talks to the European Parliament and Council. The difference between trend or level estimation is discernible through the phrasing. For instance, the EC will write trend

estimations during the reported period as “[l]ittle progress was made”, “some progress was made”, and “good progress was made”. This phrasing is only used to indicate relative changes that have occurred during the reporting period, which only covers the time since the previous report was released. Level estimations, on the other hand, use phrasing such as “North Macedonia is moderately prepared…”, “Albania is well advanced…”, or “judicial

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16 infrastructure remains poor overall…”. The results section, chapter 4, will include examples of both kinds of estimation.

4. The Copenhagen Political Criterion Evaluated: EU Progress Reports versus Independent Evaluators

In this section, the state of good democratic governance and rule of law in North Macedonia and Albania will be presented. The indicators will be examined from both Albanian and North Macedonian Progress Reports and then compared to independent indices.

The independent indices that will be used as a control against the EU Progress Reports are the following; the Economist Intelligence Unit’s Democracy Index, Freedom House’s Nations in Transit, and The World Justice Project’s Rule of Law Index.

4.1 Good Democratic Governance

Good democratic governance is operationalized by the following four variables: level of democracy, level of separation of powers, level of government control of agenda and ability to implement reforms, and level of civil society and freedom from repression. The question now is how these four variables appear from year to year in the EU Progress Reports, as well as in the indices Nations in Transit and Democracy Index. The objective here is to clarify the degree to which the political criterion is currently being achieved regarding this indicator.

4.1.1 Albania

In this section, good democratic governance will be examined from both Albanian Progress Reports and independent evaluators.

4.1.1.1 Albania 2014 Report

Measuring the level of democracy in Albania utilizing the Progress Report on Albania is difficult as there is little written on elections. Universal suffrage exists in Albania, but the EC notes a deficiency in the independence of election administrative bodies. This deficiency was first acknowledged in the 2013 report and it could impact the credibility of the looming 2015 election (European Commission, 2014a, p. 5).

Separation of powers is another issue emphasized in the Progress Report. Although

parliament proved it could overrule a presidential veto on several occasions, parliament fails to use its oversight capability to its fullest potential as well as not following through in implementing constitutional court decisions (European Commission, 2014a, p. 5). Parliament has also been criticized by the EC for failing to secure the independence of institutions

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17 answerable to parliament that now lack the professionalism and functioning necessary to operate (Ibid, p.6). These traits are written into law, but do not exist in practice. In other words, these public powers fail to operate effectively as the principle of separation of powers was not applied to them vis-á-vis parliament.

Concerning the level of government control of agenda and ability to implement reforms, reforms have been trying due to difficulties in the legislature. The Albanian Parliament has been

characterized by a ‘tense political climate’, which has hampered constructive and sustainable political dialogue. Although the opposition has ‘generally’ participated in the legislature, they have also repeatedly abstained. These instances occurred during early 2014 and it came to a head when in July they started boycotting. These breakdowns in political dialogue are partly attributed to the parties in government not allowing the opposition the leeway to act as a

‘democratic control function’. However, the opposition also lacks constructive engagement in the democratic process (European Commission, 2014a, pp. 2, 6). Additionally, politicization and faulty professionalism degrade the public administration’s ability to deliver services

(European Commission, 2014a, pp. 1–7).

The level of civil society and freedom from repression is “…fragmented and overly dependent on donor funding” (European Commission, 2014a, p. 17) as national or local government funding for the civil sector is insufficient. A thriving civil sector is an essential safeguard for any democratic society.

Good democratic governance as a whole in Albania during 2014 does no more than satisfice the minimal requirements necessary to be accepted as an accession candidate and concerning the level of government control variable; glaring issues are found.

The level of democracy in Albania is technically approved, but with several underlying issues. Parliamentary elections happened in May 2017 with a high voter turnout for Albania (66.8 %) and OSCE/ODIHR determined the campaigns to have been competitive. However, the election occurred in a time of public mistrust for institutions and political elites alike.

Public distrust was inflamed by the widespread rumors of voter-buying, allegations of abuse of government resources, and reports of pressure on voters. Although a bilateral political agreement contributed to a less polarized election season, the OSCE/ODIHR criticize both parties for not fully addressing their recommendations concerning “…electoral violations, transparency and accountability of campaign financing, and the rights of observers”

(European Commission, 2018a, p. 9).

Concerning the level of separation of powers, parliament was hamstrung by strong party polarization as well as extended boycotts by the opposition. In order to secure the supremacy of the legislative branch it is therefore essential to fix its institutional shortages of “…effective oversight… constituency links… transparency and ethical conduct, and… Parliament’s research capacity” (European Commission, 2018a, p. 7).

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18 Level of government control of agenda and ability to implement reforms was indirectly

graded as the EC graded Albania’s public administration as “moderately prepared” (European Commission, 2018a, p. 6). Implementation of policy has improved due to reforms where efficiency and transparency of public services have increased, continued education for civil servants, changes to make recruitment procedures more open to the public, as well enhancing the professionalism of civil service procedures. What still plagues Albania’s public

administration is its politicization, inefficiency, and nepotistic networks (European Commission, 2018a, p. 6).

Regarding level of civil society and freedom from repression, the civil sector has the legal framework mostly in place to protect it, but legislation concerning civil society funding is not supported. This relates both to taxes and public funding. Civil society organizations also lack efforts from the state to be included in policy dialogue (European Commission, 2018a, p. 12).

Good democratic governance in 2017 has improved slightly but many of the same deficiencies that plagued 2014 persist. The largest improvement was seen in the level of government control variable and least change in the level of civil society variable.

4.1.1.3 EIU’s Democracy Index

In the EIU’s Democracy Index, scoring higher is better.

Albania’s overall score improved slightly as a result of both the functioning of government and political participation improving substantially. However, political culture and the electoral process remained stagnant.

Table 3. Good democratic governance indicated by four variables from EIU’s Democracy Index.

ALBANIA 2014 2017 OVERALL

SCORE

5.25 5.57

ELECTORAL PROCESS AND PLURALISM

7.00 7.00

FUNCTIONING OF

GOVERNMENT

4.00 4.71

POLITICAL PARTICIPATION

5.00 5.56

POLITICAL CULTURE

5.00 5.00

Source: (Economist Intelligence Unit, 2017, 2014)

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19 4.1.1.4 Freedom House’s Nations in Transit

In the Nations in Transit index, scoring lower is better.

Albania’s overall score increased slightly from 2014 to 2017. National democratic

governance, civil society, and local democratic governance all remain unchanged during the two points of comparison, which means the improvement is entirely due the electoral process improving substantially. The increased rating is due to a calm election, improved vote

counting, and that the results of the election were uncontested. However, the electoral process is still plagued by “…politicized institutions, procedural irregularities, violent clashes

between contending candidates, and allegations of vote-buying” (Freedom House, 2018a, p.

5).

Table 4. This displays a modified version of Nations in Transit where variables that match the good democratic governance indicator are examined.

ALBANIA 2014 2017 OVERALL

SCORE

3,75 3,625

NATIONAL DEMOCRATIC GOVERNANCE

4.50 4.50

ELECTORAL PROCESS

4.00 3.50

CIVIL SOCIETY

3.00 3.00

LOCAL

DEMOCRATIC GOVERNANCE

3.50 3.50

Source: (Freedom House, 2018b).

4.1.2 North Macedonia

In this section, rule of law will be studied in two separate Progress Reports and then results from the independent indices will be presented covering the same two time periods.

4.1.2.1 North Macedonia 2014 Report

Regarding the level of democracy, the EC states that democracy has been “consolidated”

(European Commission, 2014b, p. 5) while at the same time raising several concerns over the election that occurred in North Macedonia. The 2014 North Macedonia report states that an

“…increasing politicization of state institutions…” (European Commission, 2014b, p. 1) threatens the electoral process. The installation of the new government for 2014 is marred by allegations from the opposition of vote buying, phantom voters and intimidation. The main opposition party – the SDSM – has protested the legitimacy of the election to the degree that it would not recognize the results of either the parliamentary or presidential elections. The

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20 (OSCE/ODIHR) also express concerns about the “…blurring of state and governing parties”

(European Commission, 2014b, p. 8) in that it did not provide for a ‘level playing field’.

Another government party, the DUI, have been credibly accused of exerting undue pressure on public sector employees not to vote in the presidential election (European Commission, 2014b, p. 6). These problems undermine the fairness and freeness of North Macedonia’s electoral process as both voters and political parties faced difficulties.

The level of separation of powers is weakened by that “…public administration remains fragmented and subject to political influence….” (European Commission, 2014b, p. 9). Here the EC writes that additional efforts are needed to achieve levels required concerning the principles of ‘merit’, ‘equitable representation’, ‘accountability’ and ‘transparency’. The efficiency of the public administration is threatened by routine practices of nepotism, which weakens professionalism. The politicization on both the national as well as local level for public administration “…remains a serious concern” (European Commission, 2014b, p. 8) and has rocked the confidence the general public has on the independence of state institutions and its transparency (Ibid, p.8). The EC reviews the process of decentralization as incomplete and therefore a necessity to support local development to counteract the politicization of state institutions.

Regarding the level of government control of agenda and ability to implement reforms, it is noticeable that the problems in the electoral process have spilled over into the political culture; becoming ever more polarized. In fact, it has resulted in “…two political crises and a breakdown in political dialogue” (European Commission, 2014b, p. 5). The functioning of parliament has “…continued to be hindered by the lack of constructive political dialogue and the ongoing deep divisions between the political parties” (European Commission, 2014b, p.

7).

The level of civil society and freedom from repression variable seems to have legal

protection, but in practice those protections do little good. Formal improvements were made to legislation and consultation mechanisms regarding civil society, but non-governmental organizations keep conveying concerns about the difficult climate that they face, and the governments limited engagement to dialogue (European Commission, 2014b, p. 10).

Good democratic governance in North Macedonia faces serious issues as a consolidated democracy is plagued with severe electoral issues, nepotistic and politicized public administration, a parliament at a standstill, and a difficult climate for civil society.

4.1.2.2 North Macedonia 2017 Report

The EC commends the new administration for returning to the EU path by addressing issues of state capture through means of “… gradually restoring checks and balances [and]

strengthening democracy…” (European Commission, 2014b, p. 4 [grammar insertion]). The political atmosphere has markedly improved by becoming more open and inclusive. During the turmoil of 2015 and 2016, the EC changed its accession recommendation for the first time since 2009 for North Macedonia to ‘conditional’. This meant that the European Commission

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21 would only recommend North Macedonia for accession negotiations if it overcame its

political crisis and backsliding. The 2018 report of North Macedonia upgrades the

recommendation to unconditional due to the progress achieved by the new government. This means that once again North Macedonia inhabits the necessary threshold to be considered worthy for the second step of the accession process, initiating formal membership

negotiations.

The level of democracy had only deteriorated until the new administration took office as senior officials from the previous, ruling nationalist party VMRO-DPMNE had been tarnishing the integrity of the electoral cycle. Firstly, these officials accused civil society organizations as well as the international community of interfering in issues of no concern to them. Secondly and more egregious, the lawful transition of power was setback as the-then current president from VMRO-DPMNE refused to give SDSM the mandate to form a coalition government due to political self-interest. This delay postponed the election of the new President of Parliament until the 27^th April 2017, and whose election provoked violent assaults due to his Albanian ethnicity (European Commission, 2018b, p. 9).

Regarding the level of government control of the agenda and ability to implement reforms, it is positive that the political climate has improved to the degree to which parliament is a functional institution despite opposition parties chairing key committees. Legislation is hampered by the extensive tools available to stop the legislative process such as filibusters.

Overall, constructive political dialogue is found wanting (European Commission, 2018b, p.

11). The European Commission rates public administration reform to have undergone ‘good progress’ during the reporting period. When considering evaluations of relative change, this is the best praise that the EC can give (Jano, 2016, p. 4). The actions taken by the new

government to strengthen public administration are measures that standardize the principle of merit-based recruitment as well as furthering the de-politicization of the public

administration. Efforts to guarantee the professionalism is vital to the continued health of competence and capacity of the public sector (European Commission, 2018b, p. 6). All these measures culminate in an improved capability to conduct reforms.

The level of separation of powers has increased during the reporting period as Parliament was able to reestablish checks on the power of the executive - that had previously run rampant -, and that civil society is once again more capable of its role as a democratic safeguard after an extended period of state repression (European Commission, 2018b, pp. 4–7). Parliament is still found lacking on its role of overseeing the other branches - especially the executive – as the EC note deficiencies in its oversight function, which had previously allowed the VMRO- DME extensive state capture.

Civil society, which has before been experiencing undue pressure, is now steadily returning to form. Before the new administration took office, civil society had been repressed by various methods such as sharp rhetoric, pressure on civil organizations, as well as targeted

investigations (European Commission, 2018b, p. 5). The European Commission upholds civil society as an essential safeguard for democracies, which falter in such capabilities as they are repressed. The new administration has shown willingness to foster dialogue and engage with

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22 civil society organizations in an inclusive way, and even engaging organizations in the policy- making and legislative processes (European Commission, 2018b, pp. 4–7). Restrictions surrounding information, wanted by either journalists or the public, have lessened and the presumption of accessibility has instead become norm.

Good democratic governance has deteriorated severely in North Macedonia and is only now improving as the new SDSM administration initiates reforms to end state capture, strengthen the professionalism in public administration, and stop repression of civil society.

4.1.2.3 EIU’s Democracy Index

In the EIU’s Democracy Index, scoring higher is better.

North Macedonia’s overall score decreased substantially between 2014 to 2017. No variable even remained stagnant, as functioning of the government decreased the least by only slightly degrading while all others degraded substantially. The electoral process and pluralism

degraded by more than double the scale change necessary to decrease substantially.

Table 5. Good democratic governance indicated by four variables from EIU’s Democracy Index. Refer to header 3.3 for full description of index scoring.

NORTH MACEDONIA

2014 2017 OVERALL

SCORE

5.9 5.2

ELECTORAL PROCESS AND PLURALISM

7.75 6.50

FUNCTIONING OF

GOVERNMENT

5.36 5.00

POLITICAL PARTICIPATION

6.11 5.56

POLITICAL CULTURE

4.38 3.75

Source: (Economist Intelligence Unit, 2017, 2014).

4.1.2.4 Freedom House’s Nations in Transit

In the Nations in Transit index, scoring lower is better.

North Macedonia’s overall score worsened almost substantially from 2014 to 2017. Civil society was the only variable to improve, even if only slightly. National democratic governance and the electoral process degraded substantially while local democratic

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23 governance deteriorated slightly. The worsened state of national democratic governance is due to pervasiveness of state capture that ran rampant with VMRO-DME in power, but the new government has turned this trend back to democratic principles. Macedonia’s electoral process is plagued by inaccuracy of the voter registry, voter-intimidation and vote-buying on election day, as well politicized electoral authorities being impartial decision-makers. Civil society improved as the new government ended the constant state attacks against the independent sector and initiated reforms to reestablish trust with the civil sector (Freedom House, 2018b, pp. 5–9).

Table 6. This displays a modified version of Nations in Transit where variables that match the good democratic governance indicator are examined. Refer to header 3.3 for full description of index scoring.

NORTH MACEDONIA

2014 2017 OVERALL

SCORE

3.625 4.00

NATIONAL DEMOCRATIC GOVERNANCE

4.25 4.75

ELECTORAL PROCESS

3.50 4.00

CIVIL SOCIETY

3.50 3.25

LOCAL

DEMOCRATIC GOVERNANCE

3.75 4.00

Source: (Freedom House, 2018b).

4.2 Rule of Law

The rule of law indicator is operationalized by the way of the three variables: level of judicial process, level of corruption and efficiency of anti-corruption activities, as well as level of fundamental rights and their enforcement.

4.2.1 Albania

In this section, rule of law will be studied in two separate Progress Reports and then results from the independent indices will be presented covering the same two time periods.

Generally, the EC casts a dim - yet hopeful- impression on the level of the judicial system in Albania when they write that “[m]any shortcomings remain and there is an overall awareness

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24 that deep reform of the judiciary is urgently needed” (European Commission, 2014b, p. 2).

However, they also write that Albania has shown a willingness to reform the judicial system without it being just a show of rhetorical commitment. The problems remain substantial when the system is dogged by “…politicization, limited accountability, poor interinstitutional cooperation, insufficient resources and backlogs” (European Commission, 2014a, p. 11) as well as a lack of independence and efficiency within the judiciary. Already some of the principal pillars of rule of law seem to be on shaky ground.

More troubling for the state of rule of law is that universality and impartiality of both the judiciary and law enforcement is seen by a growing number of the public to be faulty. It is as the EC point out that “… justice must not only be done but also be seen to be done”

(European Commission, 2014a, p. 11 [author’s own italicization]) which is a fact that authorities in both the judiciary and law enforcement disregard. This disrespect for a fundamental rule of law principle erodes trust in the judicial system.

The level of corruption plagues Albania on several fronts, but corruption in the judiciary and law enforcement is especially troubling. Corruption in these two sectors results in a negative societal spiral where if organized crime is left unchecked, it will infiltrate the political, legal and economic system; thereby resulting in more corruption (European Commission, 2014a, p.

3). The EC commends Albania on demonstrating political will in its anti-corruption activities, but the challenge remains to implement anti-corruption legislation into enforcement. A

hindrance towards implementation, however, is that watchdogs lack human, financial, and technical capital to “…develop a convincing track record of investigations, prosecutions and convictions at all levels” (European Commission, 2014a, p. 11) and are also vulnerable to political pressure themselves.

In Albania, the level of fundamental rights exists to an acceptable degree within law and is generally implemented well, except for marginalized communities. Albania still struggles with forced child labor as well as protection and inclusion of marginalized groups, especially Roma and Egyptian communities; resulting in these children being particularly exploited and marginalized (ibid, p.54). Roma and Egyptians ”…continue to face very difficult living conditions and frequent social exclusion and discrimination, particularly regarding access to health care, social protection, education, employment and housing” (European Commission, 2014a, p. 56). Discussions between LGBTIQ persons and the state concerning their rights have fared better over the past year and the legislation regarding disabled people has been overhauled, but it’s vital the legislation is executed properly (European Commission, 2014a, p. 2).

The rule of law in Albania during 2014 is massively problematic, but with both the level of judicial system and the corruption indicator; reforms are happening for the better. However, marginalized communities persist without proper protection in practice, even if guaranteed by law.

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25 4.2.1.2 Albania 2017 Report

Measuring the level of judicial process can be done in part by observing the grade which the EC has given the Albanian judicial system, which is that it “…has some level of preparation”

(European Commission, 2018a, p. 5). During the reporting period, Albania initiated a

comprehensive judicial reform to strengthen the independence, efficiency, and accountability of the judiciary. This reform constituted changes that would rewrite one third of Albania’s constitution. These reforms ranged from improving accountability of judges and prosecutors by forming new judicial bodies tasked with oversight and actions to improve justice

efficiency as well as the availability to justice (European Commission, 2018a, p. 3). Although these reforms were not completed in 2017, their implementation is progressing well according to the timeline.

Further improvements were made to the Albanian judiciary by a reform that initiates a vetting of all judges and prosecutors, which resulted in the firing several of high-ranking judges and prosecutors (European Commission, 2018a, p. 4). The EC notes that one of the grand

objectives of the reform is to rebuild some essential public confidence into Albania’s judicial system. However, some shortcomings that have not been addressed are the failings

concerning the case management systems, on increasing the transparency regarding adjudications that are often delayed and incompletely reasoned, as well as allocating cases randomly to judges and prosecutors to prevent interference from biased parties (European Commission, 2018a, p. 16).

Level of corruption and efficiency of anti-corruption activities can be gauged partly by the European Commission’s designation of fight against corruption where they deem Albania to have “some level of preparation” (European Commission, 2018a, p. 7). Substantial efforts have been directed to enhance the legal and institutional framework to impede and combat corruption. Anti-corruption activities have ramped up all along the investigation chain where:

police increased number of referrals of corruption cases as well those sent to court;

convictions of junior or middle-ranking officials swelled; and even convictions of judges and prosecutors. However, convictions of high-ranking state officials persist at low levels even though more cases have opened against such officials (European Commission, 2018a, p. 4).

Despite good progress made by reforms, corruption still “… remains prevalent in many areas and continues to be a serious problem” (European Commission, 2018a, p. 7)

Regarding the level of fundamental rights and their enforcement, the problem lies in that Albania lacks the institutional capabilities to enforce and monitor human rights rather than that legal frameworks in place are deficient or nonexistent. Improvements have been made but the protection of minorities, children’s’ right, combating gender-based and domestic violence, are still lacking. Roma and Egyptian communities struggle with employment, living

conditions, delivery of social care services, as well as discrimination; thereby leaving their children and adolescents especially vulnerable to exploitation. However, some work has been done that improves their access to primary education, health care and the labor market. Legal framework that is missing is that regarding property rights, which needs to be further

Discrepancies in European Union Pre-accession Evaluations: An Assessment of the European Commission’s Progress Reports