Legal Uniformity and Differentiation in the EU Enlargement Context – The Rule of Law as a Case Study

The successive enlargements of the European Union (EU) have prompted increased legal differentiation in the integration process. At one level, each wave of accession has involved transitional arrangements enabling new Member States to opt out of certain EU policy obligations for prolonged periods of time. At another level, the EU enlargement policy itself has involved accession conditions which go beyond obligations binding Member States, thus generating differentiation in the articulation and application of EU law in the pre- and post-accession phases. While at odds with the constitutional requirement of uniformity in the application of the acquis communautaire, these differentiation patterns have been expanding with the membership of post-communist countries from Central and Eastern Europe and the envisaged accession of countries from the Western Balkans considering their significant economic, administrative and political disparities with the EU-15. The ensuing tension between increased legal differentiation and the requirement of uniformity associated with membership ultimately raises the risk of a dysfunctional Union. The paper focuses on one specific area where this tension is increasingly visible and particularly problematic, namely the rule of law. According to Article 2 TEU, the rule of law is a founding value of the European Union that is common to the Member States, ensuring the uniform implementation of EU rules and mutual trust. It is also an accession condition whose significance has recently increased, in the sense that candidates’ respect for the rule of law essentially pre-determines advancement of the whole accession process. Through the accession conditionality, the EU has thus been advocating several standards pointing to a common rule of law acquis. This is particularly the case with regard to the organization of the candidates’ respective judiciaries, thereby promoting more legal uniformity across the candidate states’ judicial systems. For example, EU induced reforms of the judiciary revolve around the effective establishment of academies for training of judges and strong judicial councils in every candidate country. Meanwhile, the substantive contents of the rule of law standards binding Member States, including with respect to their judicial organization, have remained circumscribed and partly contested within the Union, as the on-going disputes between the Commission and several Member States epitomize. Considering the limited acquis in the area of judicial governance and the diversity of judicial traditions across the Union, what are the potential integration/differentiation effects of the EU’s approach to judicial governance in the candidate countries? Could the “model” of judicial governance advocated by the Union through its accession conditionality paradoxically foster differentiation, considering that it may create distinct modes of judicial governance between EU Member States and the candidate countries? Or could it conversely be part of the on-going internal development of common rule of law standards applicable to Member States?