Backsliding, Weak Implementation, or Failed Institutionalisation? Reforming Judicial Councils in Macedonia and Serbia Under the Aegis of the EU

In recent years, the EU has striven to re-generate the lost dynamism of the enlargement processes in the Western Balkans. Much of this renewed focus stems from a fear of backsliding, which, given the slow pace of progress and the absence of a clear timetable for a further round of accessions, does represent a significant threat to the progress already achieved by both Serbia and Macedonia. The current deterioration of judicial independence in Poland and Hungary, as well as in Bulgaria and Romania, raises questions about the effectiveness of institutional solutions for rule of law reform, as well as the durability of the transfer of rules and processes per se. Whilst the Commission’s emphasis on strengthening the rule of law is to be welcomed, we contest the notion that the success of such reform initiatives is threatened by backsliding. Rather, we contend that the fundamental problem remains imperfect implementation and institutionalisation (which we define as informal rules fully aligning with formal rules, and new institutions being paramount and able to realise their designated jurisdiction and authority). What appears to be being conflated is the degeneration or reversal of reforms (backsliding), imperfect implementation and unintended consequences, and the failure of initiated reforms to be institutionalised. Our case studies are judicial councils in Serbia and Macedonia, both of which have been the focus of EU-supported reforms. We adopt an actor driven, neo-institutionalist approach that emphasises the perpetual interaction between domestic formal and informal veto players, and between existing formal and informal rules. We explore the processes of implementation / institutionalisation by means of semi-structured interviews and documentary sources. Reflecting on the dynamics of the two cases, we aim to offer insights on the conceptual notion of ‘backsliding’, as well as on the literature dealing with the interactions between formal and informal rules.