Judicial Independence Under Contestation: Courts Power, and EU Enlargement

As Courts increasingly shape political outcomes, judicial independence has become a central arena of political contestation, particularly in contexts of democratic fragility and geopolitical pressure. This paper examines how judicial independence is constructed, constrained, and constrained in EU accession-related judicial reform processes, focusing on recent reform trajectories in Serbia and Georgia. The comparison highlights how judicial independence is challenged under different yet structurally comparable modes of political pressure: gradual executive entrenchment in Serbia and the politicisation of judicial institutions amid polarised domestic politics and contested European integration in Georgia. It asks from whom courts are expected to be independent, to what extent this independence is realised in practice, and how political dynamics shape the gap between de jure guarantees and de facto autonomy, including the ways in which courts are discursively mobilised as signifiers of national sovereignty. This paper argues that EU-driven judicial reforms, while formally strengthening constitutional safeguards, often reconfigure rather than eliminate political influence over courts. Drawing on a comparative analysis of Serbia and Georgia, it shows that judicial independence is not merely a legal status but a relational and contested outcome of interactions between domestic elites, courts, civil society actors, and transnational norm promoters. In both cases, EU conditionality – supported by the expertise of the Council of Europe’s Venice Commission – has led to significant formal reforms aimed at insulating courts from political pressure. Yet implementation remains uneven and politically fraught, as reform commitments coexist with informal practices, elite continuity, and selective compliance, all of which reflect a growing departure from core liberal-democratic commitments. To capture these dynamics, the paper conceptualises judicial independence through the lens of norm contestation in transnational constitutional settings. It identifies three recurrent patterns: contestation of the legitimacy of external norm promoters, framed as violations of sovereignty or constitutional identity; applicatory contestation, where formal compliance masks fragmented or selective implementation; and societal contestation, in which civil society actors question the EU’s transformative capacity due to its continued engagement with superficially compliant elites. By foregrounding the political struggles surrounding judicial autonomy, the paper contributes to debates on de facto judicial independence, legal pluralism, and the role of courts in accession-related contexts marked by democratic backsliding and contested European integration.