Mind the Gap: Issues of Legality in the EU’s Conceptualisation of the Rule of Law in Its Enlargement Policy

Sa？etak The article critically examines the EU’s conceptualisation of the rule of law in its enlargement practice. Two main arguments will be advanced. First, it will be argued that legality is a core element of the rule of law, and adherence to it is a fundamental characteristic of any institutional order governed by the rule of law, as evidenced in the Treaty (Article 2 TEU) and as acknowledged in the jurisprudence of the Court of Justice. Secondly, it will be shown that the EU’s pre-accession process does not sufficiently address this rule of law element, to the extent that a) its main focus is alignment with the acquis, and b) changes made to domestic legislation are measured in terms of quantity and not quality. It will be demonstrated that this generates problems of legality in the candidate states, including legal inflation, instability, lack of generality of law and coherence, as well as problems of enforcement. It will be asserted that even though this is recognised by the Commission, over the years the EU has not amended its methodology, thereby failing to recognise that ensuring respect for the rule of law is not merely a process of adoption of a corpus of rules, but rather a complex process of adaptation to a particular value system. The article continues by arguing that the quality and complexity of the acquis leave considerable room for improvement, while at the same time raising questions as to its suitability as an instrument for development in the (potential) candidate countries. As a conclusion, some policy reflections will be offered on how these issues could be better addressed