Judicial Capacity

The EU accession process

As part of the EU accession process, the Commission has evaluated candidate countries in a wide range of areas in the framework of its regular reports on the progress of each country towards fulfilment of the ‘‘Copenhagen criteria’’ (the political and economic criteria, and ability to take on the obligations of membership - acquis communautaire). Although these criteria do not specifically refer to judicial independence, the political criteria of ensuring ‘‘stability of institutions guaranteeing ... the rule of law’’ would be inconceivable without an independent and impartial judiciary.

The judiciary occupies a unique position in a democratic society. It is called upon to decide disputes that cannot or should not be left to the political branches or private individuals. It upholds the law for all, safeguarding the rights of individuals and minority groups against the excesses of majoritarianism. It also combats corruption, confronting the interests of the political branches or powerful individuals.

In the ten CEE States, the EU accession process generated an unprecedented momentum for judicial reform in the (then) candidate States, and demonstrated the importance of the continuing role played by the European Commission. Encouragement and incentives from the Commission proved quite effective in promoting reform of the judiciary.

EUMAP monitoring on Judicial independence (2001) and Judicial capacity (2002)

The EUMAP monitoring of the judiciary in the CEE countries was initiated in 2000 to encourage independent monitoring of the process by which the EU was considering applications for membership. The Program aimed to contribute to the enlargement process by producing monitoring reports to complement the evaluations then being conducted by the European Commission in its annual Regular Reports. EUMAP’s monitoring was based on the underlying principle that the accession process was a positive development, and that independent monitoring was one means of magnifying its beneficial effects, both within the candidate States and in the EU itself.

Both EUMAP reports on the judiciary - Judicial Independence (2001) and Judicial Capacity (2002) - covered the ten CEE countries. The 2001 EUMAP reports assessed the state of judicial independence in these countries. The 2002 reports complement the 2001 reports on judicial independence and brought to the attention of candidate State Governments and judiciaries, civil society and the European Union issues that still needed to be addressed by candidates to achieve the level of capacity essential to fulfil the obligations of membership. In particular, the 2002 reports looked at the degree to which the quality of judges and supporting institutional infrastructure guaranteed competent and efficient adjudication.

The reports’ central objective was to determine if the judicial infrastructures in CEE countries guaranteed the capacity for an independent, competent, accountable, and efficient judicial process. The findings of the reports indicated that, notwithstanding the great improvements achieved over the last years, there were clearly defined areas in which the candidate States needed to achieve further progress. The reports also highlighted areas in which the EU itself needed to further define and clarify standards for measuring that progress both before accession and as part of continuing membership.

The judiciary in an enlarged EU

With the first wave of EU enlargement now complete, the results of this monitoring indicate some important areas where future EU evaluation of the judiciary in both member states and accession countries could focus:

1. Consistent application of EU standards in both member and candidate countries. Although the EUMAP reports made specific policy recommendations to both the monitored States and to the EU. the act of creating a truly independent and capable judiciary is a complex social phenomenon not readily reducible to static formulae. Even more than financial or technical resources, successful reform requires social and political commitment. Above all, an ethos of responsibility and competence needs to be fostered – an especially important element given the traditionally low status of judges in the CEE countries. Society – the population and its governing officials – needs to view the creation and maintenance of a truly independent and capable judiciary as an important common interest. This is a shared goal that the Union and all its members can jointly foster. In this context, the EU needs to ensure that the standards candidate States are called upon to meet are themselves clearly defined, rationally related to the requirements of the Copenhagen criteria, and consistently applied across the Union.

2. Development of more comprehensive EU standards. The accession process has also clearly shown that the EU itself needs a more comprehensive approach to judicial reform. There are few EU standards on how the judiciary should be organised and how it should function, and the existing expert support system is often uncoordinated and ineffective. Pre-accession advisors and twinning institutions have often simply encouraged the adoption of specific solutions imported from their own states. In some instances, their advice has arguably not been in accord with clearly preferable practice or international standards.

Judicial reform will always have a highly particular, national character, given the divergent traditions of different states’ legal systems. Yet, although the scope for choice may be very broad, it is not infinite. There are, and properly ought to be, areas of agreement. To the degree that the Union and its members do wish to create a community of shared values, some measure of common standards should be identified that constitutes the minimum membership requires. One of the most valuable services the Union could provide is to identify those common minimums, and to assist states in seeing those standards met throughout the Union.

3. Strengthened monitoring. The process of clarifying and defining such standards is likely to require that the EU itself engage in further monitoring, much as it has done during the candidacy phase through the Commission’s Regular Reports, which have proven useful tools in promoting reform. The act of monitoring – as EUMAP’s own reports have sought to demonstrate – is itself a spur to the clarification of unvoiced yet commonly accepted standards. Ongoing adherence to commonly defined minimum political and democratic standards should be a sine qua non of membership; the power to derive those minimum standards, and to continuously monitor member States’ compliance with them, is a logical and necessary function of a vital Union.

To request copies of the 2001 Judicial Independence report, please use the Publication order form. The 2002 report on Judicial capacity is out of print, but both reports are still available online.

If you are interested in being informed about the follow-up work on these reports please click here