The Normative Power of the EU and Contentious Europeanization: The Case of Judicial Politics

ABSTRACT

This article explores the relationship between Europeanization and EU integration in the field of judicial politics. It claims that the process of Europeanization engenders contention which creates demands for increased supranational governance. To illustrate this duality, the article draws on the waves of reforms aiming to consolidate the independence of the judiciary in the new Member States of the EU. What is at stake from a political and normative point of view is the post-conditionality debate, the discussion around the Copenhagen dilemma and — conversely — the need to define at the EU level a set of effective mechanisms and instruments of compliance. Empirically, the article discloses the dead angles of Europeanization and reveals that policy implementation in the Copenhagen framework creates functional and political pressures for further integration. In the field of judicial politics, the power of the EU oscillates between spill-over and spill-back.

Key Words:

• Europeanization
• contention
• rule of law
• independence of the judiciary
• spill-over
• spill-back

Notes

1. If it is relatively easy to determine when it starts, what marks the end of this process remains an open methodological question.

2. Since 1987 and in particular in the enlargement context, the European Commission and the Council of Europe have tried to better define their roles in strengthening democracy and the rule of law. Both of them assisted countries applying for membership and defined standards required for membership of the EU. See for example Memorandum of Understanding between the Council of Europe and the European Union, CM(2007)74, 10 May 2007.

3. EU experts meet with representatives of civil society, judges, prosecutors, academics, journalists and so on. Although it has been many times emphasized that the enlargement policy overlooked citizens, in the case of judicial reforms EU officials were well-informed about the state of the judiciary because citizens used to send complaints to the Delegation of the EU, describing in detail their cases and perceptions about the state of the judiciary and the relationship between justice and politics.

4. In this respect, an illustrative example is the case of Romania where, between 2002 and 2004, two institutional models of judicial independence were debated at the domestic level: one promoted by the government with the support of a French expert, another one promoted by the Superior Council of Magistracy (SCM) with the support of a German expert. While the former implied maintaining the prerogatives of the Ministry of Justice over the administration and organization of the judiciary, the later favoured the empowerment of the Council. In spite of the prestigious collaboration of the government with experts from France, the European Commission remained strict on its recommendations and suggested the empowerment of the Romanian CSM.

5. Council of Europe — European Union, «A sole ambition for the European continent», 11 April 2006, 10.