Cover Page
The handle
http://hdl.handle.net/1887/74363
holds various files of this Leiden University
dissertation.
Author: Louwerse, L.B.
Title: The EU’s conceptualisation of the rule of law in its external relations : case studies
on development cooperation and enlargement
The EU’s Conceptualisation of the Rule of Law in its External Relations
The EU’s Conceptualisation
of the Rule of Law in its
External Relations
Case studies on development cooperation
and enlargement
PROEFSCHRIFT
ter verkrijging van
de graad van Doctor aan de Universiteit Leiden,
op gezag van Rector Magnificus prof. mr. C.J.J.M. Stolker, volgens besluit van het College voor Promoties
te verdedigen op woensdag 26 juni 2019 klokke 10.00 uur
door
Lisa Berthe Louwerse
Promotoren: prof. dr. C.A.P. Hillion prof. dr. R.C. Tobler
Promotiecommissie: prof. dr. S.F. Blockmans (University of Amsterdam) prof. dr. S.C.G. Van den Bogaert
prof. dr. M. Cremona (European University Institute, Florence, Italy)
dr. J.J. Rijpma
prof. dr. R.A. Wessel (University of Twente)
Lay-out: AlphaZet prepress, Bodegraven Printwerk: Ipskamp Printing
© 2019 Lisa Louwerse
Behoudens de in of krachtens de Auteurswet van 1912 gestelde uitzonderingen mag niets uit deze uitgave worden verveelvoudigd, opgeslagen in een geautomatiseerd gegevensbestand of openbaar gemaakt, in enige vorm of op enige wijze, hetzij elektronisch, mechanisch, door fotokopieën, opna-men of enig andere manier, zonder voorafgaande schriftelijke toestemming van de auteur.
Acknowledgments
This PhD would not have been completed without the help of many people I was fortunate enough to meet along the way. From the participants and dis-cussants I met at conferences, some of whom have remained friends to this day, to the inspiring colleagues at the Europa Institute. First and foremost, I wish to thank my two supervisors Christophe Hillion and Christa Tobler. Without them, their guidance and patience, this project would not have been completed. I also owe a debt of gratitude to the two consecutive directors of the Europa Institute, Piet Jan Slot and Stefaan van den Bogaert.
For my time in Leiden, a particlar word of thanks goes to my two room-mates Antoine Buyse and Armin Cuyvers, with whom I shared many stimu-lating discussions, laughter, and friendship. Ay Ling Josaputra, Narin Idriz, and Meehea Park deserve special mention – it was a pleasure to work with you and I could not have wished for better colleagues.
Table of Contents
Acknowledgments V
List of abbreviations XIII
The rule of law in EU external relations: An introduction 1
1. Introduction 1
2. Problematique and Research question 4
3. Delineating the research question 7
3.1 The four functions of the rule of law in the EU 9 3.1.1 The rule of law as a foundational value 10 3.1.2 The rule of law as a value ‘common to the
Member States’ 15
3.1.3 The rule of law as a benchmark in and objective
of the EU’s external relations 23
3.1.4 The rule of law as a guarantee for EU security 26
3.1.5 Focus of the thesis 30
3.2 Delineating the research field: the two case-studies 31
4. Structure 35
5. Contribution to legal scholarship 36
6. Methodology 38
Part I 41
1 The common core of the rule of law: the concept in the
most prominent legal systems of the EU 43
1. Introduction 43
2. The rule of law adopted as a solution to common problems:
restraint of power and preservation of individual liberty 46 3. The common underpinnings of the rule of law: separation
of powers as a means of ensuring judicial independence 51 4. The common substance of the rule of law:
the element of legality 56
5. The common mechanism for safeguarding the rule of law:
judicial review 61
VIII Inhoudsopgave
2 The common elements of the rule of law in legal theory 67
1. Introduction 67
2. The purpose of the rule of law: restraint of power
and the protection of individual liberty 68
3. The core substance of the rule of law: legality 70
3.1 Fuller’s legality requirements 71
3.2 Further fleshing out of legality’s requirements 75 4. The institutional underpinnings of the rule of law:
emphasis on the legal system and judicial independence 79 5. The safeguarding mechanisms of the rule of law:
judicial review and other procedural elements 83
6. Conclusions 89
General Conclusions to Part I:
the analytical framework for the case studies 91
Part II 95
3 The EU’s conceptualisation of the rule of law in its
development cooperation practice 97
1. Introduction 97
2. The rule of law and its relation to EU development cooperation: EU policy and the toolbox for rule of law promotion 101
2.1 The policy framework 101
2.2 The EU’s toolbox for rule of law promotion in
development cooperation 107
3. Rule of law elements in the EU’s practice of development
cooperation 110
3.1 Formal elements of the rule of law 111
3.1.1 The lack of legality in the definition of the rule of law as an essential element in the Cotonou
Agreement 112 3.1.2 The lack of legality in the broader development
context: confirmation
of the emerging picture? 115
3.1.3 Legality as a benchmark in development cooperation: further confirmation of the lack of
formal elements in the EU’s rule of law definition 119
3.1.4 Conclusions 121
3.2 Procedural elements of the rule of law 122 3.2.1 The absent element of judicial review 122 3.2.2 The omnipresent element of access to justice 125 3.2.3 Enforcement of the rule of law 132
IX Inhoudsopgave
3.3 Institutional elements of the rule of law 134 3.3.1 The ubiquitous institutional understanding of
the rule of law: rule of law as institutional reform 135 3.3.2 The lack of specificity in the element of the
separation of powers 139
3.3.3 The bias towards the element of judicial
independence and the problems associated with
the ambiguous concept of judicial accountability 143
3.3.4 Conclusions 149
3.4 Interim conclusions 150
4. General findings 150
4.1 The EU’s conceptualisation of the rule of law in development cooperation: a strong institutional
understanding 151 4.2 The EU’s institutional understanding of the rule of law
in development cooperation explained 154
4.2.1 The path dependency of the broader field of development cooperation
on the EU’s approach towards to the rule of law 155 4.2.2 The institutional focus against the background of
the rise of good governance and security 156 4.3 Some definitional problems and the confines of the
EU’s development cooperation methodology 162
5. Conclusion 166
4 The EU’s conceptualisation of the rule of law in its
enlargement practice 167
1. Introduction 167
2. The rule of law and its relation to EU enlargement: EU policy and the toolbox for rule of law promotion 169 2.1 Brief overview of the enlargement process to date 169 2.2 The policy framework: the increasing importance of the
rule of law 174
2.3 The EU’s toolbox for rule of law promotion in its
enlargement policy 183
3. Rule of law elements in the EU’s practice in enlargement 195
3.1 Formal elements of the rule of law 195
3.1.1 The lack of formal legality in the legal framework
underpinning enlargement 196
3.1.2 The lack of the element of formal legality in the Copenhagen criteria related documents in the
light of the EU’s quantitative approach 200 3.1.3 The quantitative approach in enlargement and
problems with the element of legality 204
X Inhoudsopgave
3.2 Procedural elements of the rule of law 209 3.2.1 The growing importance of the element of
judicial impartiality 210
3.2.2 Judicial efficiency and quality as crucial elements underpinning the EU’s procedural
understanding of the rule of law 213
3.2.3 The fragmented approach to the element of
judicial review 219
3.2.4 The auxiliary element of access to justice 221
3.2.5 Conclusions 226
3.3 Institutional elements of the rule of law 227 3.3.1 The pervasive institutional rule of law approach:
the EU’s understanding of the rule of law as
judicial reform 228
3.3.2 The lack of articulation of the element of
separation of powers 232
3.3.3 The emphasis on the element of judicial independence and the later addition of judicial
accountability 235
3.3.4 Conclusions 247
3.4 Interim conclusions 247
4. General findings 249
4.1 The conceptualisation of the rule of law in enlargement:
strong emphasis on judicial reform 250
4.2 The judicial focus of the rule of law in enlargement explained: the EU’s understanding of the rule of law in the light of the applicant states’ future role as
Member States 254
4.3 The lack of conceptual differentiation between the rule of law as a political criterion and as part of Chapter 23
of the acquis under the third of the Copenhagen criteria 259 4.3.1 The scope of the rule of law under the first and
third Copenhagen criteria 259
4.3.2 The converging substantive assessment of the rule of law under the first and third Copenhagen
criteria 262
5. Conclusion 263
Conclusions: the influence of the policy area on the EU’s conceptualisation of the rule of law in its external
relations 265
1. Introduction 265
2. The EU’s conceptualisation of the rule of law in development cooperation and enlargement: influences and explanations 266 2.1 Strong institutional bias: the reasons behind the rule of
XI Inhoudsopgave
2.2 Lack of the formal element of legality explained on the
basis of policy characteristics 273
2.3 The reasons underpinning the focus on different
elements in development cooperation and enlargement 278 2.3.1 Explaining the prominence of certain rule of law
elements in the procedural category 279 2.3.2 Explaining the prominence of certain rule of law
elements in the institutional category 282 2.4 The reason explaining the limited articulation of
procedural and institutional elements 285 2.5 The EU’s definition of the rule of law in development
cooperation and enlargement in the light of the
common elements identified in chapter one 289
3. The way forward? 294
3.1 In order to see the bigger picture, start with the
component parts 294
3.2 Acknowledge policy influence and the emphasis it
brings with it on the rule of law definition 296 3.3 Distinguish between the definition of the rule of law,
its threats, and its instrumental use-value 297
4. Conclusion 298
Summary 301
Samenvatting (Dutch summary) 305
Bibliography 309
Table of Documents 329
List of abbreviations
ACP African, Caribbean and Pacific states party to the Cotonou Agreement
AFSJ Area of Freedom, Security and Justice AP Accession Partnership
BVerfGE Bundesverfassungsgericht (German (Federal) Constitutional
Court)
CARDS Community Assistance for Reconstruction, Development and Stabilisation
CEECs Central and Eastern European Countries
CEPEJ Council of Europe Commission for the Efficiency of Justice CFR Charter of Fundamental Rights
CFSP Common Foreign and Security Policy CJEU Court of Justice of the European Union
DAC Development Assistance Committee of the OECD DCI Development Cooperation Instrument
EA Europe Agreement
EC European Community
ECHR European Convention on Human Rights and Fundamental Freedoms
ECtHR European Court of Human Rights and Fundamental Freedoms ECR European Court Reports
ECSC European Coal and Steel Community EDF European Development Fund EEC European Economic Community
EIDHR European Instrument for Democracy and Human Rights ENCJ European Network of Councils for the Judiciary
EP European Partnership
EU European Union
FCC German (Federal) Constitutional Court
(Bundesverfassungs-gericht)
FYROM Former Yugoslav Republic of Macedonia
GG Grundgesetz (Basic Law, i.e. the German Constitution)
IPA Instrument for Pre-accession Assistance MDGs Millennium Development Goals
OECD Organisation for Economic Cooperation and Development
OJ Official Journal
OSCE Organization for Security and Cooperation in Europe PHARE Poland and Hungary Assistance for the restructuring of the
Economy
SAP Stabilisation and Association Process SDGs Sustainable Development Goals TEU Treaty on the European Union
TFEU Treaty on the Functioning of the European Union
UK The United Kingdom
UN United Nations
VCLT Vienna Convention on the Law of Treaties
