The Many Faces of Conditionality
Conditionality is a peculiar strategy introduced by specific provisions (frequently referred to as ‘HR clauses'1) in international treaties or agreements. The purpose of these provisions is the adoption of ‘a basic strategy through which international institutions promote compliance by national governments' with the main guidelines of the relevant treaties and agreements.2 The focus herein is on conditionality in Europe as far as the principles of European constitutionalism and the European market are concerned.
The experience of the Venice Commission started from the strategy of conditionality adopted by the Council of Europe. The collaboration with the European Union pertains to a later stage of that experience due to the attention paid by the Union to the constitutional choices of its Member States. European policies aimed at the establishment of a common free market are not in the competence of the Commission.If we want to have a full understanding of the functioning of the policies of conditionality, we have to keep in mind that the EU is concerned not only with the compliance of its Member States with the common values and principles, but also with the establishment of preferential trade schemes with third countries. Negotiations with third countries are seen by the governing European authorities as occasions for the promotion of human rights and democracy. This holds true even if the matters dealt with in the trade treaties and agreements are outside the scope of the promotion of the principles of constitutionalism.3 When third countries are ready to accept the insertion of the HR clause in the international schemes that regulate their relations with the EU, they accept the opening of a process of negotiations whose final objective is their compliance with the relevant engagements. Nonetheless, conflicts frequently arise because third countries at times view the implementation of democratic and human rights principles as a violation of their sovereignty.
Therefore, machinery entrusted with the task of settling these divergences is necessary. However, the Venice Commission has not been involved in this exercise.As chapter one discussed, the birth of the Venice Commission coincides with the transition of the Central and Eastern European countries from communism to liberal-democratic
1 F Zwagemakers, ‘The EU Conditionality Policy: A New Strategy to Achieve Compliance' (2012) IAI Working Papers No 3.
2 JT Checkel, ‘Compliance and Conditionality' (2018) ARENA Working Papers WP 00/18, 1.
3See B Brandtner and A Rosas, ‘Human Rights and the External Relations of the European Community: An Analysis of Doctrine and Practice' (1998) 9 European Journal of International Law 468. constitutionalism. The actuality of the passage has in certain ways been certified by the accession of those states to the Council of Europe. The membership to this institution has been always conditioned to the will to collaborate sincerely and effectively in the realisation of its aims as specified in chapter 1 of its Statute. The concerned states had to give evidence of this commitment by fulfilment of the provisions of Article 3, which stipulates that ‘every member of the Council of Europe must accept the principles of the rule of law and of the enjoyment by all persons within its jurisdiction of human rights and fundamental freedoms’. The compliance with these provisions required first, a general overview of the constitutional systems of the candidate states, and secondly, the monitoring of their legislation adopted in the fulfilment of the commitments taken at the moment of accession. This chapter is devoted to the analysis of these two steps.
The accession of Central and Eastern European countries to the Council of Europe was only the first step to membership of the EU. Their next request to access to the EU opened a new phase of transition, where the principle of conditionality once again played a crucial role.
Conditionality is an essential strategy for the cohesion of the Union in central matters such as the rule of law, the principle of democracy and the safeguarding of human rights. Therefore, compliance with those European values is required from the moment of accession. In the documents of the EU, the internal stability and observance of the principles of the constitutionalism are considered as important factors for the protection of relations between Member States. Internal and supranational stability was one of the principal commitments that the EU required of the new European democracies. In particular, the common guarantee and observance of the European constitutional heritage by all participants in the process of European unification is a main mission of the EU.It has been frequently remarked in the literature that the modalities and purposes of the strategy of conditionality concerning the accession of new Member States are different from the policies adopted by the EU in the case of trade agreements with third states. In this last case, special attention is paid to the protection of human rights and the principles of democracy. The objective is the establishment of a constitutional order that is considered ‘a facilitating condition for accomplishing development through trade’.[41] In contrast, the accession of new Member States to the EU is seen as an occasion for starting an overall process of constitutional transformation. The innovations are strictly connected with the implementation of the commitments previously undertaken by the states at the moment of accession to the Council of Europe. There is a continuity between the two events. The whole process should make the post-communist democracies ‘more receptive to the EU institutional paradigms... because EU models are being presented at the same time as CEE policymakers are seeking institutional models to replace or to create new structures’[42] Rebus sic stantibus, the internal constitutional homogeneity of the EU is at stake.
Therefore, the documents concerning accession to the Council of Europe and to the EU (for instance, the document adopted at the Copenhagen European Council 1993) go further than the HR clauses of the EU’s trade agreements. Accession to the Council of Europe may be seen as a preparatory step to the process of European unification. The EU’s purpose is the
stability of institutions guaranteeing democracy, the rule of law, human rights and respect for protection of minorities. The commitment to this purpose is the sine qua non political condition of accession.[43] The choice is evidently aimed at establishing a political organisation of Europe that requires Member States to share the same constitutional principles and values. These criteria of accession affect the whole structure of the concerned states and its functionality. The national political actors have to balance the internal costs of implementation of the Statute of the Council of Europe and of the Copenhagen document with the national domestic interests connected with the accession. Member States cannot complain about a loss of their sovereignty, as they consciously accepted to embark on the road to accession.[44]
Conditionality implies that the country bound by a given yardstick for its constitutional legislation and the international institution requiring compliance with the given yardstick enter into a relationship. On the one hand, states that are partners in trade relations see the apparent slimness of the direct link between the economic engagements and the HR clauses as an easily acceptable violation of their sovereignty. On the other hand, at the moment of accession to the Council of Europe, the conditionality placed upon the ex-communist countries was suffered as a coercion which endangered their sovereignty and was perceived almost as a return to Breznev’s doctrine. The same reaction was evident when faced with the strategy of conditionality for accession to the EU of new Member States.
However, the scholarly debate correctly underlines in both cases that compliance with conditionality is a matter of voluntary choice. For instance, in the case of the accession to the EU, it was remarked that ‘all applicant countries have the option of not entering the EU and thus of not complying with the enlargement conditionality’.[45] A country that envisages the possibility of the accession should be ready to accept the limitation of their sovereignty. The purpose of the strategy of conditionality is to shape the internal order of the Member States according to commonly shared constitutional principles. The introduction of a monitoring system is a necessary consequence of this choice.The absence of any explicit mention of conditionality in the texts of the European Treaties in view of the accession of new Member States to the EU is remarked on by Kochenov in an important contribution about overestimating conditionality.[46] The lack of an explicit provision of conditionality in the Treaties does not imperil the credibility of the strategy. Conditionality is an implicit principle in the complex regulations that subordinate the accession to, and continued membership of, the EU to compliance with the European constitutional values. On the other hand, how rigid or flexible the conditionality is in practice depends on how rigid or flexible the required engagements to the Member States are, and on their interpretation by the monitoring authorities. Evidence of these alternatives is given by the processes followed in the adhesion of the ex-communist countries to the Council of Europe.
II.