¹ The notion of the rule of law has been conceived over time and different geographical areas, receiving various interpretations. Although this principle can be perceived, prima facie, as a guarantee of the supremacy of law—in other words as a limit on the exercise of political power against the risk of its possible arbitrary expansion—it is well known that it corresponds to different patterns in the common law (rule of law) and in the civil law (Rechtsstaat, État de droit, Stato di diritto, Estado de derecho) legal traditions. For a thorough study on these legal traditions and their possible convergence in light of the existence of some common traits, see Pietro Costa & Danilo Zolo, Lo stato di diritto Storia, teoria, critica (3rd ed. 2006); for a mainly historical analysis of the principle of the rule of law, see Roberto Bin, Lo stato di diritto (2004).Google Scholar

² See Danilo Zolo, Teoria e critica dello Stato di diritto, in Lo stato di diritto Storia, teoria, critica 17, 33 (Pietro Costa & Danilo Zolo eds., 3rd ed. 2006).Google Scholar

The judicial protection of fundamental rights is, in fact, the most significant expression of the principle of the rule of law. The emphasis on the effectiveness of the protection of rights is the basis of the distinction between two possible connotations of the rule of law. In its formal (“thin”) meaning, the notion of the rule of law mainly embodies the procedural limits to the exercise of State's authority; in other words, it represents a guarantee of compliance with the formal procedures pertaining to the assignment and exercise of public powers. In its substantial (“thick”) meaning, the notion of the rule of law incorporates the concept of judicial protection of rights by taking into consideration the content of the exercise of public authority. In accordance to this latter version, the rule of law entails that the legitimacy of rules—or more generally of the law-making activity—is linked not only to the respect of formal procedures (mainly related to the principle of the division of powers) but also to the respect of fundamental rights. On these two different meanings of the notion of the rule of law, see in particular Luigi Ferrajoli, Lo Stato di diritto fra passato e futuro, in Lo stato di diritto Storia, teoria, critica, 349 (Pietro Costa & Danilo Zolo eds., 3rd ed. 2006).Google Scholar

³ With regard to international organizations’ activities for promoting the rule of law, see in particular Amichai Magen, The Rule of Law and Its Promotion Abroad: Three Problems of Scope, 45 Stan. J. Int'l L. 51 (2009).Google Scholar

⁴ In the United Nations context, the rule of law is closely associated with the protection of fundamental human rights; in this perspective, see the Universal Declaration of Human Rights, G.A. Res. 217 A (III) (Dec. 10, 1948), U.N. Doc. A/810 at 71 (1948), in particular para. 3 of the preamble. Moreover, the principle of the rule of law is a critical issue with regard to the promotion of development and democratic principles; in this perspective, see in particular the 2005 World Summit Outcome, G.A. Res. 60/1, paras. 11 and 119, U.N. Doc. A/RES/60/1 (Sept. 16, 2005) and the United Nations Millennium Declaration, G.A. Res. 55/2, para. 24, U.N. Doc. A/RES/55/2 (Sept. 8, 2000). In addition, the rule of law is gaining increasing importance in relation to security and conflict prevention; in this perspective, see Simon Chesterman, The UN Security Council and the Rule of Law, The Role of the Security Council in Strengthening a Rules-based International System, Final Report and Recommendations from the Austrian Initiative, 2004–2008, in Annex, UN Doc. A/63/69-S/2008/270 (2008).Google Scholar

⁵ The difficulty of depicting the meaning of the rule of law, due to the existence of various theoretical patterns developed in the legal and constitutional practice of States, has been analyzed in-depth in the framework of the Council of Europe; with regard to this, see in particular Eur. Parl. Ass., Motion for a Resolution on The Principle of the Rule of Law, Doc. No. 10180 (2004) and Eur. Parl. Ass., Report of the Committee on Legal Affairs and Human Rights on The Principle of the Rule of Law, Doc. No. 11343 (2007), both available at http://assembly.coe.int. The concept of the rule of law upheld by the Council of Europe—identified with the expression prééminence du droit (i.e. supremacy or primacy of law), which is used in both the French version of the Statute of the Council of Europe and in the preamble to the European Convention for the Protection of Human Rights and Fundamental Freedoms—summarizes the common traits of the different legal traditions concerning the rule of law, inter alia the principle of legality and rules on fair trial; on this issue, see Eur. Parl. Ass. Res., The Principle of the Rule of Law, Doc. No. 1594 (2007), available at http://assembly.coe.int.Google Scholar

⁶ In the context of the OSCE, the concept of rule of law—which plays a central role in the activities for the protection of human rights—encompasses not only formal legal aspects, but also the idea of justice aimed at the full respect for human dignity. In supporting the enhancement of the rule of law, OSCE assistance covers several areas, such as legislative reforms, human rights monitoring, fight against corruption, law enforcement. The concept of the rule of law endorsed by the OSCE has been clarified in some important documents adopted, in the aftermath of the fall of the Berlin Wall, in the framework of the Conference on Security and Cooperation in Europe, i.e. the Charter of Paris for a New Europe, adopted by the Meeting of the Heads of State or Government of the Participating States of the Conference on Security and Co-operation in Europe (CSCE), Paris, Nov. 21, 1990 (hereinafter Charter of Paris) and the Document of the Copenhagen Meeting of the Conference on the Human Dimension of the CSCE, Copenhagen, June 29, 1990 (hereinafter Copenhagen Document).Google Scholar

⁷ See Secretary General, Report of the Secretary-General: Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies, para. 6, U.N. Doc. S/2004/616 (Aug. 23, 2004):Google Scholar

The ‘rule of law’ is a concept at the very heart of the Organization's mission. It refers to a principle of governance in which all persons, institutions and entities, public and private, including State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards. It requires, as well, measures to ensure adherence to the principles of supremacy of law, equality before the law, accountability to the law, fairness in the application of the law, separation of powers, participation in decision-making, legal certainty, avoidance of arbitrariness and legal transparency.Google Scholar

⁸ See Secretary General, Report of the Secretary-General: Uniting Our Strengths: Enhancing United Nations Support for the Rule of Law, para. 40, U.N. Doc. A/61/636-S/2006/980 (Dec. 14, 2006).Google Scholar

⁹ Treaty Establishing the European Economic Community, Mar. 25, 1957, and subsequent modifications, up to the consolidated version following the amendments introduced by the Treaty of Amsterdam: see Treaty Establishing the European Community, Nov. 10, 1997, 1997 O.J. (C 340) 173.Google Scholar

¹⁰ Treaty on European Union, Feb. 7, 1992, 1992 O.J. (C 191) 4, and subsequent modifications, up to the consolidated version following the amendments introduced by the Treaty of Amsterdam: see Treaty on European Union, Nov. 10, 1997, 1997 O.J. (C 340) 145.Google Scholar

¹¹ TEU art. 6 para. 1.Google Scholar

¹² Id. at art. 7.Google Scholar

¹³ Id. at art. 49.Google Scholar

¹⁴ Id. at art. 11, para. 1.Google Scholar

¹⁵ TEC art. 177, para. 2.Google Scholar

¹⁶ Id. at art. 181A, para. 1.Google Scholar

¹⁷ Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community, Dec. 13, 2007, 2007 O.J. (C 306) 1 [hereinafter Treaty of Lisbon].Google Scholar

¹⁸ Consolidated Version of the TEU, Mar. 30, 2010, 2010 O.J. (C 83) 13 [hereinafter Consolidated TEU] art. 6, para. 1 establishes, inter alia, that “The Union recognizes the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union of 7 December 2000…”, in addition para. 3 establishes that “fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and as they result from the constitutional traditions common to the Member States, shall constitute general principles of the Union's law.”Google Scholar

It seems appropriate to recall that, by virtue of art. 6, para. 1 of the Consolidated TEU, the Charter of Fundamental Rights of the European Union, Dec. 7, 2000, 2000 O.J. (C 364) 1 [hereinafter Charter of Nice]— repeated and replaced by the text proclaimed at Strasbourg, Dec. 12, 2007, 2007 O.J. (C 303) 1, see also 2010 O.J. (C 83) 389—has the same legal value as the Treaties. It is worth noting that the preamble of the Charter of Nice states that the Union is founded on the principles of democracy and the rule of law. Moreover, the Charter of Nice enshrines some principles which are distinctive elements of the notion of the rule of law: inter alia, the equality of all before the law, Charter of Nice art. 20, the right to an effective remedy and a fair trial, id. at art. 47, the principle of legality, id. at art. 49. The European Convention for the Protection of Human Rights and Fundamental Freedoms, also known as the European Convention on Human Rights [hereinafter ECHR), to which art. 6, para. 1 of the consolidated TEU makes reference too, contains as well several provisions entailing some typical principles pertaining to the rule of law: inter alia, the right to liberty, ECHR art. 5, the right to a fair trial, id. at art. 6, the principle of legality (nulla poena sine lege), id. at art. 7, and the right to an effective remedy, id. at art. 13.Google Scholar

¹⁹ See Consolidated TEU art. 2 (“The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.”).Google Scholar

For a critique of the choice made by the drafters of the Treaty of Lisbon to replace the term “principle” with the term “value”, which would somehow engender a regression of the meaning of the rule of law, see Laurent Pech, The Rule of Law as a Constitutional Principle of the European Union, Jean Monnet Working Papers 04/09, 20 (available at: www.jeanmonnetprogram.org/papers/09/090401.doc). The author argues, in particular, that this modification cannot involve a change in the interpretation of the rule of law leading, to some extent, to the weakening of this principle.Google Scholar

For a similar critique, with regard to the amendments envisaged by the former Treaty establishing a Constitution for Europe, see Eduardo Gianfrancesco, Il principio dello Stato di diritto e l'ordinamento europeo, in L'ordinamento europeo. I principi dell'Unione, 235, 289 (Stelio Mangiameli ed., 2006). According to the author, although the regression from “principle” to “value” is likely to cause a weakening of the concept of the rule of law in contradiction with EU legislation and case-law, the rule of law must continue to be regarded as an inherent principle of the EU's institutional architecture.Google Scholar

²⁰ See Consolidated TEU art. 3, paras. 1 and 5 (“The Union's aim is to promote peace, its values and the well-being of its peoples…. In its relations with the wider world, the Union shall uphold and promote its values and interests and contribute to the protection of its citizens.”).Google Scholar

²¹ See id. at art. 8, para. 1 (“The Union shall develop a special relationship with neighbouring countries, aiming to establish an area of prosperity and good neighbourliness, founded on the values of the Union and characterized by close and peaceful relations based on cooperation.”).Google Scholar

²² See id. at art. 49 (“Any European State which respects the values referred to in Article 2 and is committed to promoting them may apply to become a member of the Union….”).Google Scholar

²³ See id. at art. 21, paras. 1 and 2:Google Scholar

The Union's action on the international scene shall be guided by the principles which have inspired its own creation, development and enlargement, and which it seeks to advance in the wider world: democracy, the rule of law, the universality and indivisibility of human rights and fundamental freedoms, respect for human dignity, the principles of equality and solidarity, and respect for the principles of the United Nations Charter and international law…. The Union shall define and pursue common policies and actions, and shall work for a high degree of cooperation in all fields of international relations, in order to: (a) safeguard its values, fundamental interests, security, independence and integrity; (b) consolidate and support democracy, the rule of law, human rights and the principles of international law; ….Google Scholar

²⁴ See Consolidated Version of the Treaty on the Functioning of the European Union, Mar. 30, 2010, 2010 O.J. (C 83) 47 [hereinafter Consolidated TFEU] art. 208, para. 1 (“Union policy in the field of development cooperation shall be conducted within the framework of the principles and objectives of the Union's external action.”).Google Scholar

See also Consolidated TFEU art. 212, para. 1 (“[T]he Union shall carry out economic, financial and technical cooperation measures, including assistance, in particular financial assistance, with third countries other than developing countries. Such measures shall be consistent with the development policy of the Union and shall be carried out within the framework of the principles and objectives of its external action.”).Google Scholar

²⁵ Infra Part B.I and accompanying text.Google Scholar

²⁶ Infra Part B.II and accompanying text.Google Scholar

²⁷ In fact, as explained in a remarkable academic work, the most prominent activity of the Court of Justice which makes reference to the notion of the rule of law is accomplished without explicitly mentioning this notion and represents a constant work of definition of a set of individual rights vis-à-vis the EC institutions resulting from the constitutional traditions common to the member States; see Gianfrancesco, supra note 19, at 275.Google Scholar

For some references to the Court of Justice's case-law concerning the rule of law, see Pech, supra note 19, Annex; see also Eur. Parl. Ass., Report of the Committee on Legal Affairs and Human Rights on The Principle of the Rule of Law, Doc. No. 11343 (2007), supra note 5.Google Scholar

²⁸ As remarked in a noteworthy scholar's analysis, the concept of the rule of law developed in the context of the member States’ legal systems and the notion of the rule of law endorsed by the EU share some common traits, including in particular the nature of “constitutional” principle; see Pech, supra note 19, at 48. As maintained by another distinguished scholar, the European legal system seems to be a case of application of the paradigms of constitutionalism to a non-State organization, that is a case of “constitutionalism without a State”; see Gianfrancesco, supra note 19, at 274. With regard to these issues, see also Dimitry Kochenov, The EU Rule of Law: Cutting Paths through Confusion, 2 Erasmus L. Rev. 5 (2009).Google Scholar

²⁹ Case 294/83, Parti écologiste “Les Verts” v. European Parliament, 1986 E.C.R. 1339, para. 23.Google Scholar

³⁰ See Maria Luisa Fernandez Esteban, The Rule of Law in the European Constitution 108 (1999) and Pech, supra note 19, at 10.Google Scholar

³¹ Case C-50/00 P, Union de los Pequeños Agricultores v. Council of the European Union, 2002 E.C.R. I-06677, para. 38.Google Scholar

³² With reference to the role of the Court of Justice's case-law see, amongst the others, Paolo Mengozzi, La rule of law e il diritto comunitario di formazione giurisprudenziale, in Rivista di diritto europeo 511, n. 3 (1992); Roberto Toniatti, Il principio di rule of law e la formazione giurisprudenziale del diritto costituzionale dell'Unione europea, in Costituzione italiana e diritto comunitario 503 (Silvio Gambino ed., 2002); Mattia Magrassi, Il principio comunitario di rule of law e l'evoluzione dei rimedi giurisdizionali: il contesto della Carta, in Diritto, diritti, giurisdizione 31 (Roberto Toniatti ed., 2002).Google Scholar

³³ With regard to this issue, see the Communication from the Commission to the Council and the European Parliament, Article 7 of the Treaty on European Union—Respect for and promotion of the values on which the Union is based, COM (2003) 606 final (15 Oct. 2003) and the European Parliament legislative resolution on the Commission communication on Article 7 of the Treaty on European Union: Respect for and promotion of the values on which the Union is based, P5_TA(2004)0309, 2004 O.J. (C 104 E) 408. For a relevant scholar's contribution see, amongst the others, Ugo Villani, Osservazioni sulla tutela dei principi di libertà, democrazia, rispetto dei diritti dell'uomo e stato di diritto nell'Unione europea, 2 Studi sull'integrazione europea 27 (2007).Google Scholar

³⁴ See Commission Decision 2006/928/EC, 2006 O.J. (L 354) 56 (establishing a mechanism for cooperation and verification of progress in Romania to address specific benchmarks in the areas of judicial reform and the fight against corruption), and Commission Decision 2006/929/EC, 2006 O.J. (L 354) 58 (establishing a mechanism for cooperation and verification of progress in Bulgaria to address specific benchmarks in the areas of judicial reform and the fight against corruption and organized crime). The relevant documents concerning the activities carried out through these mechanisms are available at http://ec.europa.eu/dgs/secretariat_general/cvm/index_en.htm. On this topic see also Susie Alegre et. al., Safeguarding the Rule of Law in an Enlarged EU: The Cases of Bulgaria and Romania, Centre for European Policy Studies, Special Report, 24 April 2009 (available at: http://www.ceps.eu).Google Scholar

³⁵ As recalled in the aforementioned decisions, supra note 34, art. 37 and 38 of the Act of Accession empowers the Commission to take appropriate measures in case of imminent risk that these States would cause a breach in the functioning of the internal market by a failure to implement the commitments they have undertaken, or in case of imminent risk of serious shortcomings in these two States in the transposition, state of implementation, or application of acts adopted under Title VI of the EU Treaty and of acts adopted under Title IV of the EC Treaty.Google Scholar

³⁶ With reference to this issue, see in particular Martina Spernbauer, Benchmarking, Safeguard Clauses, and Verification Mechanisms—What's in a Name? Recent Developments in pre- and post-Accession Conditionality and Compliance with EU Law, 3 Croatian Yearbook of European Law and Policy (CYELP) 273 (2007).Google Scholar

³⁷ See, e.g., the Resolution on Human Rights, Democracy and Development adopted by the Council and representatives of the member States meeting in the Council on 28 November 1991, available at http://archive.idea.int/lome/bgr_docs/resolution.html.Google Scholar

³⁸ Joint statement by the Council and the representatives of the governments of the member States meeting within the Council, the European Parliament and the Commission, European Union Development Policy: the “European Consensus,” 2006 O.J. (C 46) 1 [hereinafter “European Consensus”].Google Scholar

³⁹ The other values covered are: respect for human rights, fundamental freedoms, peace, democracy, good governance, gender equality, solidarity and justice; see “European Consensus” at para. 13.Google Scholar

⁴⁰ See “European Consensus,” at paras. 17 and 20.Google Scholar

⁴¹ EC Regulation 1889/2006, 2006 O.J. (L 386) 1.Google Scholar

⁴² Id. at preamble, para. 8.Google Scholar

⁴³ Id. at art. 2. This regulation endorses, albeit in a less detailed way, what formerly provided in two others regulations—i.e. EC Regulation 975/1999, 1999 O.J. (L 120) 1 and EC Regulation 976/1999, 1999 O.J. (L 120) 8— concerning development and other Community operations which contribute to the general objective of developing and consolidating democracy and the rule of law and to that of respecting human rights and fundamental freedoms in third countries. According to these regulations, the Community shall provide technical and financial aid for operations aimed, inter alia, to support the processes of democratization, especially by means of “promoting and strengthening the rule of law, in particular upholding the independence of the judiciary and strengthening it; support for a humane prison system; support for constitutional and legislative reform; support for initiatives to abolish the death penalty”; see EC Regulation 975/1999 art. 2, and EC Regulation 976/1999 art. 3. With reference to supporting the process of democratization, these regulations make reference also to other actions including the promotion of: the separation of powers, particularly the independence of the judiciary and the legislature from the executive; pluralism, also by promoting the independence of media, a free press, and respect for freedom of association and assembly; good governance, particularly by supporting administrative accountability and the prevention and fight against corruption; participation of people in civil society and economic life and politics; and separation among civilian and military functions.Google Scholar

⁴⁴ See the Fourth ACP-EC Convention signed at Lomé on 15 December 1989, as amended by the Agreement signed in Mauritius on 4 November 1995, 1998 O.J. (L 156) 3 [hereinafter Revised Fourth Lomé Convention].Google Scholar

⁴⁵ See Revised Fourth Lomé Convention art. 5: “1…. Respect for human rights, democratic principles and the rule of law, which underpins relations between the ACP States and the Community and all provisions of the Convention, and governs the domestic and international policies of the Contracting Parties, shall constitute an essential element of this Convention…”Google Scholar

⁴⁶ See id. at art. 366a:Google Scholar

If one Party considers that another Party has failed to fulfill an obligation in respect of one of the essential elements referred to in Article 5, it shall invite the Party concerned, unless there is special urgency, to hold consultations with a view to assessing the situation in detail and, if necessary, remedying it…. [I]f in spite of all efforts no solution has been found, or immediately in the case of urgency or refusal of consultations, the Party which invoked the failure to fulfill an obligation may take appropriate steps, including, where necessary, the partial or full suspension of application of this Convention to the Party concerned.Google Scholar

⁴⁷ Partnership agreement between the members of the African, Caribbean and Pacific Group of States of the one part, and the European Community and its Member States, of the other part, signed in Cotonou on 23 June 2000, 2000 O.J. (L 317) 3 [hereinafter Cotonou Agreement].Google Scholar

⁴⁸ Cotonou Agreement art. 9(2), para. 3. On the mandatory nature of this definition, since it is contained in a treaty, see Elena Fierro, The EU's Approach to Human Rights Conditionality in Practice 122 (2003).Google Scholar

⁴⁹ See The Green Paper on Relations Between the European Union and the ACP Countries on the Eve of the 21^st Century—Challenges and Options for a New Partnership, COM (1996) 570 final (20 Nov. 1996); see also Communication, Guidelines for the Negotiation of New Cooperation Agreements with the ACP Countries, COM (1997) 537 final (29 Oct. 1997).Google Scholar

⁵⁰ COM (1998) 146 final (12 Mar. 1998).Google Scholar

⁵¹ Id. at 4.Google Scholar

⁵² With regard to this issue, see Tanja Cerruti, I political criteria e l'allargamento dell'Unione europea tra esperienze passate e prospettive future, in I Balcani occidentali. Le Costituzioni della transizione 93 (Marina Calamo Specchia et. al., eds., 2008). With reference to the political criterion of the rule of law in the framework of the EU's enlargement to Central-eastern European Countries (CEEC), see also Dale Mineshima, The Rule of Law and EU Expansion, 24 Liverpool L. Rev. 73 (2002); Tanja Marktler, The Power Of The Copenhagen Criteria, 2 Croatian Yearbook of European Law and Policy (CYELP) 343 (2006); Dimitry Kochenov, Behind the Copenhagen façade. The meaning and structure of the Copenhagen political criterion of democracy and the rule of law, 8 European Integration online Papers (EIoP) (2004), available at http://eiop.or.at/eiop/pdf/2004-010.pdf.Google Scholar

⁵³ See Presidency Conclusions, Copenhagen European Council (21–22 June 1993) § 7(A)(iii).Google Scholar

⁵⁴ Id. According to the Copenhagen criteria, membership also requires “the existence of a functioning market economy as well as the capacity to cope with competitive pressure and market forces within the Union” (economic criterion) and presupposes “the candidate's ability to take on the obligations of membership, including adherence to the aims of political, economic and monetary union” (legal criterion concerning the acquis communautaire).Google Scholar

⁵⁵ See Cerruti, supra note 52, at 100.Google Scholar

⁵⁶ Common position 98/350/CFSP of 25 May 1998, 1998 O.J. (L 158) 1.Google Scholar

⁵⁷ Id. at art. 2(c).Google Scholar

⁵⁸ Id. at art. 3.Google Scholar

⁵⁹ See Marise Cremona, The European Neighbourhood Policy: Partnership, Security and the Rule of Law, Wider Europe Policy Papers 17 (2005), available at www.wider-europe.org/files/UkraineandENPCremona.pdf.Google Scholar

⁶⁰ For example, the Initiative for the Rule of Law in Central Asia, established in 2008, aims to promote the implementation of institutional reforms, particularly the creation and development of an independent judiciary, in order to strengthen the rule of law and compliance with international human rights standards. In this regard, see The EU and Central Asia: Strategy for a New Partnership (2007), available at www.consilium.europa.eu, and EC Regional Strategy Paper for Assistance to Central Asia (2007–2013), available at http://ec.europa.eu.Google Scholar

⁶¹ Among these operations, it is appropriate to make reference to some missions carried out in the Western Balkans, such as the police mission in Bosnia-and-Herzegovina (EUPM), the police mission in the former Yugoslav Republic of Macedonia (EUPOL Proxima), and the mission EUFOR Althea in Bosnia-and-Herzegovina.Google Scholar

⁶² The first example of such operations is represented by the EU Rule of Law Mission in Georgia (EUJUST THEMIS)—see Council Joint Action 2004/523/CFSP of 28 June 2004, 2004 O.J. (L 228) 21—aimed to assist the Georgian government in implementing a strategy for the reform of the justice sector that would include specific judicial reform, combating corruption, and adopting a new code of criminal procedure. Other significant examples are the EU Integrated Rule of Law Mission for Iraq (EUJUST LEX)—see Council Joint Action 2005/190/CFSP of 7 March 2005, O.J. (L 62) 37—and the mission EULEX KOSOVO which will be further discussed in infra Parts C and D and accompanying text.Google Scholar

⁶³ For an analysis of the EU's activities for promoting the rule of law in third countries, see Elena Baracani, EU democratic rule of law promotion, in International Actors, Democratization and the Rule of Law. Anchoring Democracy? 53 (Amichai Magen & Leonardo Morlino eds., 2009).Google Scholar

⁶⁴ See Cremona, supra note 59, at 11.Google Scholar

⁶⁵ See infra notes 70–71 and accompanying text.Google Scholar

⁶⁶ See EC Regulation 1085/2006 of 17 July 2006, 2006 O.J. (L 210) 82, art. 21:Google Scholar

Respect for the principles of democracy, the rule of law and for human rights and minority rights and fundamental freedoms is an essential element for the application of this Regulation and the granting of assistance under it. Community assistance for Albania, Bosnia-and-Herzegovina, Croatia, the former Yugoslav Republic of Macedonia, Montenegro and Serbia, including Kosovo, shall also be subject to the conditions defined by the Council in its Conclusions of 29 April 1997, in particular as regards the recipients’ undertaking to carry out democratic, economic and institutional reforms. 2. Where a beneficiary country fails to respect these principles or the commitments contained in the relevant Partnership with the EU, or where progress toward fulfilment of the accession criteria is insufficient, the Council, acting by qualified majority on a proposal from the Commission, may take appropriate steps with regard to any assistance granted under this Regulation.Google Scholar

⁶⁷ See Stabilisation and Association Agreement between the European Communities and Their Member States, of the one part, and the Former Yugoslav Republic of Macedonia, of the other part, 2004 O.J. (L 84) 13 [hereinafter SAA FYROM]; Stabilisation and Association Agreement between the European Communities and their Member States, of the one part, and the Republic of Croatia, of the other part, 2005 O.J. (L 26) 3 [hereinafter SAA Croatia]; Stabilisation and Association Agreement between the European Communities and their Member States, of the one part, and the Republic of Albania, of the other part, 2009 O.J. (L 107) 166 [hereinafter SAA Albania]; Stabilisation and Association Agreement between the European Communities and their Member States, of the one part, and the Republic of Montenegro, of the other part, 2010 O.J. (L 108) 3 [hereinafter SAA Montenegro]; Stabilisation and Association Agreement between the European Communities and their Member States, of the one part, and the Republic of Serbia, of the other part, not yet published in the O.J. pending the entry into force, available at http://ec.europa.eu/enlargement/pdf/serbia/key_document/saa_en.pdf [hereinafter SAA Serbia]; Stabilisation and Association Agreement between the European Communities and their Member States, of the one part, and Bosnia-and-Herzegovina, of the other part, not yet published in the O.J. pending the entry into force, available at www.europa.ba/files/docs/publications/en/SAP_eng.pdf [hereinafter SAA BiH].Google Scholar

⁶⁸ The so-called “essential-element clause” is contained in art. 2 of each of the abovementioned SAAs with the Western Balkan Countries, supra note 67.Google Scholar

⁶⁹ The so-called “non-compliance clauses” contained in the SAAs with the Western Balkan States lay down—albeit with a drafting technique which differ in the various agreements at issue—the possibility of taking appropriate steps, even the suspension of the agreement, should a violation of one of the essential elements occur. With regard to “non-compliance clauses” see SAA FYROM, art. 118; SAA Croatia, art. 120 and Joint Declaration concerning art. 120; SAA Albania, art. 126 and Joint Declaration concerning art. 126; SAA Montenegro, art. 133 and art. 129, para. 4; SAA Serbia, art. 133 and art. 129, para. 4; SAA BiH, art. 129 and art. 125, para. 4. With regard to Serbia and Bosnia-and-Herzegovina—pending the entry into force of the relevant SAAs—see also the interim agreements which allow certain provisions of the SAAs to be applied before the ratification process has been finalized: Interim agreement on trade and trade-related matters between the European Community, of the one part, and Serbia, of the other part, 2010 O.J. (L 28) 2, art. 54, and Interim agreement on trade and trade-related matters between the European Community, of the one part, and Bosnia-and-Herzegovina, of the other part, 2008 O.J. (L 169) 13, art. 48.Google Scholar

⁷⁰ The European Partnerships established in 2004—see EC Regulation 533/2004 of 22 March 2004, 2004 O.J. (L 86) 1—have been subsequently specified by means of specific decisions adopted by the Council with reference to each Western Balkan Country. The principles, priorities, and conditions of the Partnerships have been periodically reviewed in light of the progresses achieved by the Western Balkans and, at present, they are encompassed in the following decisions: Council Decision 2008/210/EC of 18 February 2008, O.J. 2008 (L 80) 1 (Albania); Council Decision 2008/211/EC of 18 February 2008, 2008 O.J. (L 80) 18 (Bosnia-and-Herzegovina); Council Decision 2008/212/EC of 18 February 2008, 2008 O.J. (L 80) 32 (former Yugoslav Republic of Macedonia); Council Decision 2008/213/EC of 18 February 2008, 2008 O.J. (L 80) 46 (Serbia, including Kosovo as defined by United Nations Security Council Resolution 1244 of 10 June 1999); Council Decision 2008/119/EC of 12 February 2008, 2008 O.J. (L 42) 51 (Croatia); Council Decision 2007/49/EC of 22 January 2007, 2007 O.J. (L 20) 16 (Montenegro).Google Scholar

⁷¹ Decisions establishing the Partnerships envisage a mechanism of conditionality by which “[a]ssistance to the Western Balkan Countries is conditional on progress on satisfying the Copenhagen criteria and on meeting the specific priorities of [the] European Partnership. Failure to respect these conditions could lead the Council to take appropriate measures on the basis of Article 21 of Regulation (EC) No. 1085/2006 or, in the case of pre-2007 programmes, on the basis of Article 5 of Regulation (EC) No. 2666/2000. The assistance is also subject to the conditions defined by the Council in its conclusions of 29 April 1997, in particular as regards the recipients’ undertaking to carry out democratic, economic and institutional reforms. Specific conditions are also included in individual annual programmes.” See the aforementioned Council decisions, supra note 70.Google Scholar

It is useful to remind that EC Regulation 1085/2006, supra note 66, establishes the IPA, while EC Regulation 2666/2000 of 5 December 2000, 2000 O.J. (L 306) 1, established the CARDS (Community Assistance for Reconstruction Development and Stabilisation)—i.e. the financial assistance programme addressed to Albania, Bosnia-and-Herzegovina, Croatia, the Federal Republic of Yugoslavia and the Former Yugoslav Republic of Macedonia—which has been subsequently replaced by the IPA. Also the regulation establishing the CARDS envisaged an equivalent mechanism of conditionality; see EC Regulation 2666/2000 art. 5.Google Scholar

⁷² See Communication from the Commission to the European Parliament and the Council—Enlargement Strategy and Main Challenges 2009–2010, COM (2009) 533 final (14 Oct. 2009).Google Scholar

⁷³ See Negotiating Framework, 3 October 2005, available at http://ec.europa.eu/enlargement/pdf/croatia/st20004_05_hr_framedoc_en.pdf.Google Scholar

⁷⁴ See supra note 61 (discussing the missions). For a brief analysis on these operations, see Guy le Borgne, L'Union Européenne et l'état de droit dans les Balkans. Instruments et moyens d'action, 7 Annuaire français de relations internationales (AFRI) 156 (2006). In relation to ESDP operations undertaken by the EU in the Western Balkans, see also Ugo Villani, Le responsabilità dell'Unione europea nell'area mediterranea, 4 Studi sull'integrazione europea 551 (2009).Google Scholar

⁷⁵ See Council Joint Action 2008/124/CFSP of 4 February 2008, 2008 O.J. (L 42) 92.Google Scholar

⁷⁶ With regard to the situation in Kosovo and, especially, to the coexistence of UNMIK and EU mission EULEX, see Ivan Ingravallo, Il Kosovo tra l'amministrazione delle Nazioni Unite e le prospettive di ammissione all'Unione europea, 5 Studi sull'integrazione europea 528 (2010).Google Scholar

⁷⁷ See Declaration on Yugoslavia, and Declaration on the Guidelines on the Recognition of New States in Eastern Europe and in the Soviet Union, adopted by the Extraordinary European Political Cooperation Ministerial Meeting, Brussels, 16 December 1991, in Bulletin EC 12-1991.Google Scholar

⁷⁸ With the Declaration on Yugoslavia, the European Community and its member States agreed to recognize the independence of all the Yugoslav Republics provided that they had met some conditions, including the endorsement of the requirements set in the Guidelines on the Recognition of New States in Eastern Europe and in the Soviet Union. According to these guidelines, the Community and its member States would have recognized new States which “have constituted themselves on a democratic basis, have accepted the appropriate international obligations and have committed themselves in good faith to a peaceful process and to negotiations.” Moreover, recognition was made conditional on the “respect for the provisions of the Charter of the United Nations and the commitments subscribed to in the Final Act of Helsinki and in the Charter of Paris, especially with regard to the rule of law, democracy and human rights.” Other conditions included the respect for the rights of ethnic and national groups and minorities, respect for the inviolability of all frontiers, the acceptance of all relevant commitments with regard to disarmament and nuclear non-proliferation, and commitment to settle by agreement all questions concerning State succession and regional disputes.Google Scholar

⁷⁹ With regard to this subject, see in particular Richard Caplan, Europe and the Recognition of New States in Yugoslavia (2005).Google Scholar

⁸⁰ Council conclusions on the principle of conditionality governing the development of the European Union's relations with certain Countries of South-Eastern Europe, 29 April 1997, in Bulletin EU 4-1997.Google Scholar

⁸¹ See, e.g., SAA FYROM, art. 74; SAA Croatia, art. 75; SAA Albania, art. 78; SAA Montenegro, art. 80; SAA Serbia, art. 80; SAA BiH, art. 78).Google Scholar

⁸² See Council Joint Action 2008/124/CFSP, supra note 75, at art. 2; see also EULEX Programmatic Approach and EULEX Programme Report (July 2009), both available at www.eulex-kosovo.eu.Google Scholar

⁸³ With regard to the role of the rule of law in the EU's legal system as a tool for integration, see Fernandez Esteban, supra note 30, at 179.Google Scholar

⁸⁴ For a detailed analysis of EU conditionality on democracy and rule of law, see in particular Dimitry Kochenov, EU Enlargement and the Failure of Conditionality: Pre-Accession Conditionality in the Fields of Democracy and the Rule of Law (2008).Google Scholar

⁸⁵ See Charter of Paris, supra note 6. In this document, the concept of the rule of law is closely connected to the constituent elements of democratic governance and human rights. In addition, the same document makes reference to some fundamental principles, such as the obligation of public authorities to comply with law, the impartial administration of justice, the equal submission of all to the law, the right to fair trial, the existence of effective legal remedies, national or international, against any violation of rights. The content of the rule of law is further specified in the Copenhagen Document, supra note 6, to which the Charter of Paris expressly makes reference. This latter document particularly emphasizes some core principles pertaining to the rule of law including: the supremacy of law, equality of persons before the law, the existence of effective mechanisms for judicial protection of individual rights, judicial independence, the principle of legality, the civil power's control over the armed forces and the police, the right to fair trial.Google Scholar

⁸⁶ The principle of the rule of law is mostly included in the constitutional provisions devoted to fundamental principles, and therefore closely associated with the enshrinement of human rights. See, e.g,. Constitution of the former Yugoslav Republic of Macedonia of 1991, preamble and art. 8; Constitution of Croatia of 1990, as amended in 2000, art. 3 and 5; Constitution of Bosnia-and-Herzegovina of 1995, art. 2; Constitution of Albania of 1998, preamble and art. 4.Google Scholar

⁸⁷ Copenhagen Document, supra note 6, at I(2).Google Scholar

⁸⁸ For an analysis of the relationship between globalization and democracy, see Antonio Baldassarre, Globalizzazione contro democrazia (2002). With regard to the role of the European integration process as a factor contributing to the crisis of the constitutional State, see in particular Ferrajoli, supra note 2, at 365. For a study on issues concerning the relationship between globalization and the rule of law, see Spencer Zifcak, Globalisation and the Rule of Law (2005).Google Scholar