FLORIAN TRAUNER * FROM MEMBERSHIP CONDITIONALITY TO POLICY CONDITIONALITY: EU EXTERNAL GOVERNANCE IN SOUTH-EASTERN EUROPE

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1 FLORIAN TRAUNER * FROM MEMBERSHIP CONDITIONALITY TO POLICY CONDITIONALITY: EU EXTERNAL GOVERNANCE IN SOUTH-EASTERN EUROPE Paper presented to the EU Consent conference Deepening in an enlarged Europe: Integrative balancing in the new member states Budapest, November 2007 ABSTRACT What are the major characteristics of the mode of EU external governance in the aspiring candidates in South-Eastern Europe? This paper argues that the theoretical approach as drafted in the Eastern enlargement falls short to sufficiently establish the factors why these countries comply with EU demands. Their adaptation and transformation efforts did not only take place due to membership conditionality but also due to policy-related conditionality. By elaborating on the example of justice and home affairs, the analysis shows that the EU could speed-up EU rule adoption by defining a different visa regime vis-à-vis five of the six countries as a new reward to be achieved through the fulfilment of a whole range of conditionality requirements. This strategy is effective but creates tensions with broader objectives for the region. Although the EU s overall aim is to integrate these countries and to support them in their transformation towards stable and open European-minded societies, its visa regime functions as an obstacle to this aim by confining the movement of persons, in a way that they lose sight of the wider horizon. KEYWORDS EU external governance; South-Eastern Europe; enlargement; conditionality; justice and home affairs; Europeanisation. * Doctoral Student, Institute for Advanced Studies (IHS), Vienna - 1 -

2 Introduction This analysis is concerned with the extent and ways in which the European Union s (EU) pre-accession strategy has shaped domestic policy-making in the non-member states of South-Eastern Europe. These countries which the EU subsumed under the term Western Balkans are among the latest candidates that aspire to join the EU. 1 After the end of the Kosovo conflict in 1999, the EU has given them the prospect to become members of the EU once the relevant political and economic conditions are met. However, a certain enlargement fatigue, the controversy on the candidacy of Turkey and several other factors contributed to the fact that it is not clear when or even whether these countries will actually make it into the EU. At the same time, the stabilisation of the Western Balkans region is of great interest to the EU, not only in terms of post-conflict stabilisation and rehabilitation but also with a view on soft security issues such as illegal immigration or organised crime. The EU attaches a high degree of importance to this subject, as reflected by the fact that justice and home affairs is one of the most prominent areas of cooperation. This EU-Western Balkans cooperation in justice and home affairs will be the main focus of this analysis, since the EU was particularly interested to ensure a strong lever in this policy domain. The reason for this is that the EU has developed a common understanding that EU rule-extension in justice and home affairs beyond its own territorial scope is a chief means to enhance the efficiency and problem-solving capacities within the EU. The EU has hence developed an external dimension of justice and home affairs (see Lavenex and Wichmann 2006; Lavenex, Lehmkuhl and Wichmann 2006; Rees 2005). This has not only concerned the Western Balkans, but has been equally true for the wider Europe initiative (Lavenex 2004) and for almost all relations the EU holds with third countries (Trauner 2006). However, the setting of the Western Balkans is unique in some aspects. Following the 1995 Dayton Peace accords, the countries emanating the former Yugoslavia had to demarcate the roughly km of newly created borders among themselves. Those borders were frequently ill-demarcated, poorly protected and characterised by a lack of regional structures and networks to tackle common cross-border problems. The EU therefore placed a particular strong emphasis on reshaping the weak institutional arrangements on border policing and towards the sealing of the porous borders between the states. The underlying (EU-)assumption has been that if the EU made the Western Balkans strengthen their border control and law enforcement capacities (thus, adhering to the justice and home affairs acquis while coming closer to the EU), these states would 1 Under the term Western Balkans, the EU subsumes Croatia, Albania, Macedonia, Serbia, Montenegro and Bosnia and Herzegovina

3 increasingly be capable of coping with problems of illegal migration and organised crime themselves. But can we expect these states to accept the EU s influence and to adhere to its rules and institutions? The EU has refrained from specifying dates or timeframes for membership for any of the Western Balkan states and it is known from past experience in the Eastern Enlargement that third countries cannot be expected to implement the acquis communautaire unless the Union provides clear and tangible incentives to do so. Thus, the question remains: Does the EU nonetheless manage to transfer its rules and institutions to the Western Balkans? If the answer is yes, what then are the factors that affect the countries choice for rule adoption? This paper starts with the notion of EU external governance as drafted in the context of the Eastern enlargement (Schimmelfennig and Sedelmeier 2002, 2004). The argument it seeks to advance is that the theoretical approach falls short to sufficiently explain the factors why the Western Balkan countries comply with the EU demands. The reason for this is that the EU external governance approach suggests a strong focus on the conditionality requirements associated to an eventual EU membership. Hence, if the prospect of EU membership is remote or rather uncertain, it assumes that the EU s strategy of reinforcement by reward (Schimmelfennig, Engert and Knobel 2003) is less strong and effective. This paper argues that this assumption may not always prove true, as the EU has different instruments at its disposal we do not automatically think of. In the domain of justice and home affairs, the EU has used its visa regime as a new reward by which it could counterbalance the possible weaknesses of the pre-accession strategy and divert the candidate countries calculations of the costs of non-adaptation. In theoretical terms, the study therefore suggests a revision of the term EU rewards in that they should be extended beyond assistance and institutional ties (Schimmelfennig and Sedelmeier 2005: 10). Scholars in related fields of research are invited to open their analytical eye not only for the obligations associated to an eventual EU membership but also for other rewards and additional policy-related conditionality requirements. The research proceeds in a three-step manner: first, the theory of EU external governance is presented and adjusted to the specific conditions of the Western Balkans. Second, the paper introduces the concrete strategies and instruments with which the EU has tried to encourage these states to deepen their reform efforts in the area of justice and home affairs. Out of the broad justice and home affairs acquis, the analysis focuses on border management and preparations for the implementation of the Schengen acquis, a central area of cooperation and an important pre-requisite for the eventual integration - 3 -

4 of the Western Balkan countries into the EU. Finally, the domestic responses in view of the EU s demands are elaborated in two case studies on Croatia and Macedonia. EU External Governance in South-Eastern Europe In the context of the Eastern Enlargement, a rich body of new research has emerged on how and to what extent the EU may impact the political structures and processes of a state seeking accession to the EU (see, among others, Schimmelfennig 2004; Schimmelfennig and Sedelmeier 2002, 2004; Lavenex, Lehmkuhl and Wichmann 2006; Lavenex 2002; Grabbe 2001, 2003; 2006; Vachudova 2005; Goetz 2001). Scholars have frequently referred to these processes as Europeanisation in an applicant state and suggest a focus on the impact of the EU accession process on national patterns of governance (Grabbe 2001: 1014). A consensus emerged that the Europeanisation processes within a state seeking accession to the EU is occurring in a different manner than those occurring in old member states (for an overview see Sedelmeier 2006). Europeanisation processes within the old member states are conceived of as two level interactions with member states being both contributors and products of the European integration. These processes in applicant countries, however, are characterized by an absence of the bottom-up dimension, as that of a producer of Europeanisation, ascribing the state the role of a consumer only (Papadimitriou 2002: 12). The concept of Europeanisation provides for a useful analytical framework focusing on the relationship between the European and the domestic level, but does not sufficiently acknowledge theoretical considerations concerning domestic reactions in response to the European demands and conditions. To fill in this analytical gap, scholars have drafted different models of EU external governance aimed at theorizing under what conditions EU rule transfer to applicant states is the most effective. Arguably the most refined theoretical approach to this question was presented by the two scholars Frank Schimmelfennig and Ulrich Sedelmeier (2004). They explain successful rule adoption according to three different modes of external governance. The first approach explains successful rule adoption due to rational cost-benefit calculations. According to the external incentives model, the EU applies a bargaining strategy of reinforcement by reward under which the EU provides external incentives for a target government to comply with its conditions. The better the cost-benefit balance between EU rewards and domestic adaptation costs turns out, the more likely is EU rule transfer to succeed. The most prominent alternative explanation to the external incentives model derives from constructivist thinking. According to the social learning model, the different actors are - 4 -

5 motivated by internalised identities, values and norms and choose - facing different courses of action - the most appropriate or legitimate one. Therefore, domestic actors adopt EU rules if they are persuaded of their appropriateness. As a possible third alternative model, the scholars present the lesson-drawing model, according to which a non-member state may adopt EU rules without EU incentives but rather due to domestic dissatisfaction with the status quo (Schimmelfennig and Sedelmeier 2004: ). Theoretically informed research suggest that the external incentives model of governance allows for the strongest explanatory power in terms of interpreting successful adaptation and transfer of given EU rules (see Schimmelfennig and Sedelmeier 2004: 674; Vachudova 2005; Hofer 2007). However, contrary to the accession process of the Central and Eastern European countries which was the main area of interest of most scholarly work within the branch, the EU s pre-accession strategy for the Western Balkans differs is one important aspect. The prospect of EU membership for the Western Balkans still has no concrete timeframe and offers a rather remote accession horizon. Some scholars even voiced doubts about the credibility of the membership promise stating that an introduction of the notion of a ring of well-governed countries along the EU borders in the EU security strategy has created uncertainty about the EU s commitment to full integration of the Balkans (Kostovicova 2005: 44). As a result it would be reasonable to suggest that the EU external governance approach is not as effective in the Western Balkans as it used to be in the Eastern Enlargement. Sandra Lavenex and Emek Ucarer (2004: 432), for example, assume that the current Western Balkans pre-accession strategy with its questionable promise of membership and the uncertain time-horizon within which rule compliance is rewarded is likely to limit the impact of conditionality on the calculations of the costs of non-adaptation. The empirical evidence of this paper disconfirms this assumption. It shows that the prospect of an eventual membership is still powerful in terms of animating EU rule transfer. Moreover, possible weaknesses of the EU s conditionality approach were counterbalanced by linking EU rule transfer to a reward that had initially no direct reference the countries rapprochement to the Union: its Schengen visa regime vis-à-vis five of the six countries. The EU ensured a strong leverage to shape domestic policymaking in South-Eastern Europe by relying not only on the reward of a closer institutional affiliation with the Union but also on the incentive of an improved visa regime. The issue of facilitated travel opportunities is of high political salience in the Balkan states but had initially no direct reference to their EU integration process. The EU took advantage of the issue by defining a different visa regime as a new reward to be achieved through the fulfilment of a whole range of conditionality requirements in justice - 5 -

6 and home affairs. It could find different routes of influence to achieve the pre-defined objective of EU rule transfer. This paper therefore suggests a broadening of the theoretical discussion on EU external governance and a focus not only on membership conditionality but also on possible policy conditionality. The Europeanisation Strategies for the Western Balkans What exactly are the routes of influence through which the EU tries to bring the Western Balkan states closer to EU standards in justice and home affairs? This section presents the two major strategic frameworks within which the EU seeks to shape domestic policymaking in the Western Balkans: the EU s pre-accession strategy named the Stabilisation and Association Process and the Ohrid Border Security Process, an attempt of different international organisations to improve border security and management in South-Eastern Europe. The EU s pre-accession framework for the Western Balkans In May 1999, the EU launched the so-called Stabilisation and Association Process (SAP) and granted Croatia, Albania, Serbia and Montenegro, Bosnia and Herzegovina, and Macedonia the status of potential candidates for EU membership. The EU s Regional Approach of 1997 was replaced by the Stabilisation and Association Process aimed at bringing the countries closer to the European structures with the final objective of full membership. The prospect of the Western Balkan states joining the EU was first expressed at the European Council in Feira in The conclusions stated that all countries of this regional setting were potential candidates for EU membership (European Council 2000: point 67). The statement marked a clear shift to the EU s previous Regional Approach, which, although already applying the principle of conditionality and seeking to bring the states closer to the EU, bypassed the issue of membership. After first being heralded, the prospect for membership was reiterated several times, most notably at the European Council of Thessaloniki which was largely dedicated to the EU-Western Balkans relations. At this summit, the Council endorsed the so-called Thessaloniki Agenda for the Western Balkans: moving towards European integration which enriched the SAP process and bolstered it by methods based on the experiences of the Eastern Enlargement. The chief of these was the introduction of European Partnerships, modelled on the Accession Partnerships employed in Central and Eastern Europe. In addition it defined the improvement of regional cooperation in South- Eastern Europe an important conditionality principle for closer institutional affiliation with the EU (see European Council 2003)

7 Conditionality, or as the Council understands it the cement of the Stabilisation and Association process (Council of the European Union 2001a), pervades the EU s regional strategy and has to be viewed as its decisive cornerstone. The application of the conditionality principle links the progressive improvement of the EU s relations with the respective countries to the fulfilment of a whole range of political and economic conditions by the latter. The most powerful incentive for the Western Balkan states to comply with EU conditionality is the access to different stages in the SAP, particularly concluding the Stabilisation and Association Agreements and consequently being granted the status of a candidate for EU membership. Apart from this macro level of activity, the EU exerts conditionality also at subordinated levels. If the EU chooses, it can invoke programme conditionality and project level conditionality, threatening to freeze financial means if the country concerned fails to meet the objectives set by the EU. Since the principle of conditionality includes the obligation to implement the EU s acquis in justice and home affairs in full, it is theoretically rather a question of when and how, not if these countries will adhere to the EU s acquis communautaire. However, the EU has not defined the legal downloading of the acquis as a top priority in the Western Balkans, given the countries comparatively low level of European integration and institutional stability. The EU s justice and home affairs strategy has rather set four priorities. The first was the fight against organised crime with a particular focus upon fighting all forms of trafficking, especially of human beings, drugs and arms, as well as the smuggling of goods. In the same priority the strengthening of public order and police were subsumed. The reform of the judicial system was the strategy s second key objective, bearing in mind that the states court systems were frequently overwhelmed by an immense backlog of cases which led to corruption, public mistrust of the system and unacceptable delays. Third, the Western Balkan states were expected to re-organise their external border control systems in line with the EU s integrated border management concept for the region. Finally, the priorities were complemented with the title migration and asylum in which the strengthening or, in certain cases, the creation of responsible state institutions and the alignment with European and international standards have dominated the agenda (Commission of the European Communities 2001). The upgrading and the reform of border management in the Western Balkans were considered particularly important and did also cross-cut with the other priorities in several aspects. Proper and modern border control was regarded as the key to tackle effectively human and drug smuggling, trafficking in human beings, stolen cars, and weapons. Furthermore, a functioning border control was seen as a pre-requisite for the increase of tourism, for the facilitation of the exchange of persons, services and goods to - 7 -

8 foster economic growth, and for a well functioning customs control, bringing stable incomes to state budgets (Stability Pact for South Eastern Europe 2001: 3). The EU expected the Western Balkan states to re-organise their external border control systems in line with the EU s integrated border management (IBM) concept. It encompasses besides border control also trade facilitation and border region co-operation and should serve as the chief means to tackle the interrelated problems of porous borders and cross-border problems in relation to it. The overall aim is to facilitate legitimate cross-border activities such as tourisms, trade and trans-border cooperation and, at the same time, to close the borders for criminal activities ( open but controlled and secure borders ). The key components of the EU s IBM concept are the request to improve the intra-service, inter-agency and international cooperation of all authorities and agencies involved in the management of the borders and to transfer the operational responsibility for border policing from the army to the police. It maintains that all military should be withdrawn from border controls and the chain of command shifted from the Ministry of the Defence to the Ministry of the Interior. Through this, the professionalism should be enhanced by establishing non-military border guarding structures (see IBM Guidelines 2004). After the strategy was defined, the EU has actively encouraged the countries in the Western Balkans to take up the EU s border management model. In doing so, it relied not only on its immediate pre-accession framework but also on a joint effort of different international organisations to tackle border vulnerability in the Balkans. The Ohrid Border Security Process In May 2003, representatives of NATO, the Organisation for Security and Cooperation in Europe (OSCE), the EU and the Stability Pact met with specialists from the Western Balkan countries to address jointly the sensitive issues of border security and management. Named after the place where the conference took place, the Ohrid Border Security Process has pursued the main objective of bringing together the activities of the four international actors and of committing the Western Balkans to developing and implementing an integrated border security approach, on the basis of the European border model. The whole process is based upon the implementation of concrete measures outlined in the two founding documents, the Common Platform and the Way Forward Document both of which were signed at the founding conference. The Common Platform document served as a memorandum of understanding between the four partner organisations. It outlined that the Ohrid Border Security Process is the - 8 -

9 attempt to bring international organisations, that usually do not work together, to engage in the joint project of modernising the border security regime in the Balkans. The four organisations were assigned different tasks. NATO as the chief means to strengthen border control and to interdict smuggling in the crisis areas where NATO forces were dispatched; the EU with its support for developing integrated border management systems in each country within the context of the Stabilisation and Association Process; the OSCE as a civilian actor with a main focus on training and know-how transfer; and the Stability Pact to enhance the regional aspect of the cooperation and to offer a common roof for the activities of the four partner organisations (see Common Platform 22/23 May 2003). The Way Forward Document, in turn, defined on how to reform the Western Balkans external border control sector. The countries were expected to adhere to pre-defined country-specific objectives. They differed according to the domestic conditions but basically referred to three major tasks: the demilitarisation of the borders and the handing over of border control to a civilian chain of command; the development and implementation of integrated border management strategies and corresponding action plans; and the development of cross-border cooperation. Concerning the time-schedule, the document defined that 2006 would represent the end of the transitional period during which the counties were to implement the short and medium term commitments (Way Forward Document 22/23 May 2003: 2). Of course, in consideration of this time-schedule the question remains: How have the Western Balkan countries responded to the EU demands? Did they implement the EU s reform agenda for their domestic border control system and if yes, what were the decisive factors for the countries choice of rule adoption? The empirical analysis is based on qualitative methods (35 semi-structured expert interviews conducted in Brussels, Zagreb and Skopje, document analysis and press coverage) and concerns two case studies with a rather different accession horizon: Croatia which is the furthest advanced in terms of EU integration and Macedonia which is further behind and therefore may be ridden by more doubts about its chances to accede the EU. It is therefore interesting to compare the situation between the two cases, examining the similarities but also differences in the underlying dynamics of EU external governance in the Western Balkans

10 The Receiving End Governance Mode and Effectiveness The first case study concerns Croatia, the regional frontrunner in terms of EU integration. Croatia signed a Stabilisation and Association Agreement with the EU in October 2001 and presented its application for membership on 21 February Although the European Council granted Croatia the status of a candidate in June 2004, the country could not open accession negotiation due to insufficient cooperation with the International Criminal Tribunal for the former Yugoslavia. Croatia had to wait till October 2005 to finally start the accession talks for membership with the EU. One month later, the Commission launched the process of screening Croatian laws and regulations which was completed on 18 October After that, Croatia could start the accession negotiations and has defined June 2009, the time of the next elections to the European Parliament, as a desired date for accession. The case of Croatia Since the beginning of the Stabilisation and Association Process, Croatia has displayed strong motivation to bring its external border control system closer to EU/Schengen standards. The efforts of the Croatian government included the re-drafting of relevant legislation (in particular the Border Protection Act adopted in October 2004), the reorganisation of administrative structure and hierarchy (e.g. through the set-up of a new Mobile Border Unit to combat more effectively illegal border crossings) and a better organisation and management of the Croatian Border Police. The Croatian military was never dispatched at the borders so that Croatia was the only country in the region for which border demilitarisation process was of no relevance. The Croatian authorities could therefore concentrated on strengthening the existing system e.g. through a more specialised training for the different border police officers. 2 To proceed strategically, the government drafted a national integrated border management strategy (and a corresponding action plan) which provided them with clear-cut plans on how to enhance the cooperation of all services involved in border management (in particular migration and asylum services and customs). The integrated border management strategy, together with the border police development strategy, laid the ground for the Schengen Action Plan approved in February A rather problematic issue has been that Croatia has failed to achieve a major breakthrough in the solving of outstanding border disputes with Bosnia and Herzegovina, Serbia, Montenegro and Slovenia. Croatia s official approach is, according to a former Croatian Minister for European Integration, that we 2 In addition to the fifteen months of basic training obligatory to all police officers, officials from border police have to pass a special training of eight weeks out of which six weeks are theory and two weeks practice. The training started in 2003 and foresees the training of 400 to 500 officers per year

11 engage in all our efforts not to allow any open [border] issue actually jeopardizes the good relations with our neighbours (Int. 31, , Zagreb). For the EU, this argumentation has not held at all times. The European Commission has expressed unambiguously that Croatia s performance in solving outstanding border issues is regarded as an important component of the Union s overall assessment concerning Croatia s involvement in regional cooperation (see Commission of the European Communities 2005: 33). Croatian authorities, however, promoted the regionally coordinated management of the borders. Croatia has signed several border police cooperation agreements with its neighbours that should regulate cross-border cooperation on a more institutionalised level (Int. 25, , Zagreb). In addition, Croatia accepted to introduce new visa requirements for countries that were located on the Schengen negative visa list 3 and to enhance its efforts with fighting illegal migration even if most migrants see Croatia only as a country of transit en route to the EU. A whole network of readmission agreements was signed and the capacities of institutions dealing with the phenomenon were significantly strengthened (MARRI 2006a). 4 In the case of Croatia s choice for role adoption, the prospect of an eventual EU membership proved to be the most powerful incentive. As a high-ranking political advisor to the Croatian president noted, everybody is confident and motivated. Our president [Stipe] Mesić has a mandate till He wants to finish in the EU and this is a good objective (Int. 30, , Zagreb). Contrary to the Eastern Enlargement where preparations for accession in the areas of justice and home affairs started relatively late (Monar 2001: 6), the EU has committed Croatian authorities to introducing reforms in the Ministry of the Interior by early on incorporating the EU s justice and home affairs policies and in a prominent place in the country s rapprochement process with the Union. The conditionality principle was provided by the Title on justice and home affairs (Chapter VII) in the Stabilisation and Association Agreement that demanded Croatia to gradually align its policies with the EU s acquis on border control, visa policy, migration and asylum. As part of the conditionality principles linked to an eventual EU integration, Croatian actors accepted to introduce reforms in the sensitive policy domain of justice and home affairs. By contrast, the value added of the Ohrid Border Security Process was openly questioned in the responsible border police directorate within the Ministry of the Interior. Croatian border officials advanced a view that the process did not present a 3 According to the Commission s 2006 Progress Report (2006a: 98), Croatia s visa policy is broadly in line with full alignment to be gradually completed before accession. Croatia s visa list differs only in very few cases to the one of the EU (Bosnia and Herzegovina, Serbia, Montenegro, Macedonia and Turkey). 4 By the end of 2006, Croatia has signed readmission agreements with 24 countries, including Western-, Eastern European and other SAP states

12 useful instrument to approach more quickly to the EU s integrated border management model but rather a kind of a necessary as required extra-task on the country s direct road towards EU accession. To start, one thing has to be clarified: The idea of origin of the Ohrid Border [Security] Process was to improve border security on the triangle Kosovo/Macedonia/Albania. The second main idea was to shift responsibility from the army to the police. With these two ideas, it was finally decided to spread it out and other countries like Croatia became involved. And here is the problem in general: there are several international processes with overlapping agendas and duplications (Int. 25, , Zagreb). Therefore, the decisive EU leverage for triggering reform efforts was the direct conditionality principles linked to EU accession. These, however, have been significantly hardened for Croatia as well as for all other candidate countries currently queuing for membership. This can be most noticeably observed through the introduction of the benchmarking mechanisms that added a rigorous element to the accession process. 5 According to Mr. Vladimir Drobnjak, Croatia s chief negotiator in the country s accession talks with the EU, the benchmarking system will dictate the tempo of accession to the EU and will determine if Croatia can indeed achieve the desired date of 2009 (quoted in House of Lords 2006: 5). He added that another difference is that old and new member states are showing the utmost attention to each and every detail. Also in interviews for this analysis, Croatian authorities stated that we are under more scrutiny of the EU and the Commission when it comes to the implementation of the procedures. Actually, there was a bitter experience in the last enlargement round, especially in Bulgaria and Romania, where the implementation was taken as the very last thing in the monitoring of the membership criteria. And this is one of the lessons learnt by the Commission: that implementation is actually the most important one. Therefore, after the fifth enlargement round and with Croatia being the first country of the current enlargement process, we somehow have the fact that the Union insists much more on the implementation performance that it used to do before. In our case it will not be enough to have a fully aligned legislation, but there will be also scrutiny that the existing legislation is fully pursued (Int. 31, , Zagreb). Despite the aggravated accession process, Croatian actors kept on orienting towards EU accession and opted for compliance in view of the expected pay-offs of membership. 5 The use of benchmarks has become relevant since Croatia was allowed to start concrete accession talks. When EU member states decide, upon a Commission recommendation, on whether to open a chapter of the acquis for negotiations, they may include benchmarks to be met by Croatia before the specific negotiations can start

13 Overall, the case of Croatia s process of rule adoption can be compared to the experiences of the Central and Eastern European countries in the context of the Eastern Enlargement. The strategies of the European Union to invoke changes domestically seem to work effectively and, according to the Commission s 2006 communiqué (2006a), Croatia has started well in the accession negotiations. The two biggest differences to earlier enlargement rounds are that the accession conditions have been made more difficult and that this time it is not only a matter of Croatia s performance that will decide whether or not the country will actually become a member state of the Union. According to the Commission s enlargement strategy (2006a: 15), a new institutional settlement should have been reached by the time the next member is likely to be ready to join the Union. Therefore, Croatia EU s accession will also depend upon the ratification process of the Reform Treaty adopted by the European Council in October The case of Macedonia The analysis second case study concerns Macedonia - a country with a medium-term membership perspective, but where reforms in the Ministry of the Interior and border policing were considered crucial after the near-civil war of The armed conflict between members of the National Liberation Army, predominantly Albanian citizens from Macedonia, and Macedonian security forces constituted a major setback for the country. Even though in April 2001 the country had already signed a Stabilisation and Association Agreement, it took Macedonia until March 2004 to officially apply for membership. In December 2005, the European Council finally granted Macedonia the status of a candidate but refrained from naming a possible date for the start of accession negotiations (European Council 2005). The empirical findings suggest that Macedonia was highly ambitious to come closer to EU standards in justice and home affairs. The country was the first in the region to finish the process of border demilitarisation by transferring the border guarding responsibility from the Ministry of Defence to the Ministry of the Interior. The process of creating nonmilitary border guarding structures involved the establishment of new institutions such as the Department of Border Police, the re-drafting of relevant legislation (in particular the Law on Control of the State Border adopted in May 2006) and the training of a considerable number of border crossing guards. Other efforts to bring the Macedonian border control system closer to European standards included the creation of a national integrated border management strategy (with a corresponding action plan) and the establishment of a National Border Management Coordination Centre with a focus on strengthening the cooperation of the agencies involved in border management. At a regional level, Macedonia has signed several bilateral agreements and protocols on

14 enhancing border management cooperation and data sharing with neighbouring states (Government of the Republic of Macedonia 2006). In terms of regional cooperation, however, a problem was that a pending dispute on the exact drawing of the border between Macedonia and Kosovo could not yet been solved. Yet the Macedonian government was not necessarily to blame for this failure which was rather a consequence of the general insecurity surrounding Kosovo s final status. Most importantly, the Macedonian government has concentrated on curbing illegal migration and trafficking in human beings. Even before the issue of readmission agreements could be raised at the first meeting of the EU-Macedonian Stabilisation and Association Council, the Macedonian government had installed an inter-ministerial working group for intensifying and accelerating the procedures of concluding such agreements. As a result, a high number of readmission agreements was signed in a comparatively short time-period (eight agreements were signed in the first six month of 2006 alone) (see MARRI 2006b). Moreover, the country has done a lot to align with the visa acquis and has introduced several new visa requirements for states that were located on the Schengen negative visa list. 6 In this process it agreed at introducing particularly strict visa requirements for countries such as Moldova considered a potential source of trafficking in human beings into Macedonia (Baldwin-Edwards 2006: 7). Macedonia s process of rule adoption was also guided by a strategy of reinforcement by rewards (Schimmelfennig, Engert and Knobel 2003), but actually by a different one than in the case on Croatia. Even if the perspective joining the EU has given Macedonian politicians a strong motivation to pursue reform policies (Interview C14, , Skopje), membership conditionality was not the decisive one. Macedonia s immediate process of rule alignment was not guided by the fear of being rejected from EU integration but by the urgent desire to get rid of the visa requirements for Macedonian citizens. Together with the other Western Balkan states (with the notable exception of Croatia), Macedonia is placed on the Schengen visa list of countries whose nationals require a visa to enter the EU (see Council of the European Union 2001b). In Macedonia, the issue of visa liberalisation has ranked high on the political agenda, regardless of what Macedonian government was incumbent. Realising the lever its visa regime could exert, the EU has linked an improved visa regime to the fulfilment of a whole series of conditions. In exchange for measures against illegal border crossings and the spread of fake travel documents, the signing of readmission agreements, an aligned visa regime, etc., the EU promised to grant eventually visa facilitation and then visa free status (Council of the European Union 2003: Point 3). This strategy proved highly effective in 6 According to the Commission s 2006 Progress Report, progress has been considerable with respect to visa policy (Commission of the European Communities 2006b: 48)

15 terms of making Macedonian actors strengthen their reform efforts domestically. The prospect of a more relaxed visa regime was frequently named as the strongest single incentive to speed-up reform efforts in domestic justice and home affairs (Int. 6, , Brussels; Int. 12, , Skopje). To achieve facilitated travel opportunities, Macedonian policy-makers concentrated on the four policy areas that the EU qualified as crucial for visa liberalisation: border management, readmission agreements, passport security and an aligned visa regime (Interview 12, , Skopje). Macedonian authorities also stated that they considered the Ohrid Border Security Process as a useful additional project providing the responsible authorities with clear ideas on how and in what time-period they should reform their external border control system (Int. 20, , Skopje). Where possible, the Macedonian authorities even tried to finish the demanded tasks before the set deadlines. Macedonia s problem to obtain an improved visa regime was not so much linked to missing reform efforts but rather to an increasingly hostile political climate in Europe towards softening the visa requirements for any third country. The EU had been relatively dissatisfied with the experiences gained in the wake of the visa liberalisation for Bulgaria and Romania in 2001 and 2002 respectively and in interviews European officials stated that EU member states are now very reluctant to agree on a quick visa liberalisation scheme for any other Balkan state (Int. 3, , Brussels). Only recently did the EU soften its though stance and allow Macedonia to negotiate a so-called visa facilitation and readmission agreement aimed at facilitating travel for certain categories of the population and reducing handling fees for all citizens. Similar to the other Western Balkan states, Macedonia finalised the negotiations for this agreement which is considered a first step towards eventual visa liberalisation in April Conclusions The aim of this paper has been to assess the EU s external governance approach toward the non-member states of South-Eastern Europe. The analysis has presented two case studies on Croatia and Macedonia on how the EU shaped the political processes and structures in domestic justice and home affairs. The analysis has considered the EU s pre-accession strategy as a major framework for exerting influence on the Western Balkan states. Furthermore, in its efforts to bring the 7 Serbia was the only Western Balkan state that signed the visa facilitation and readmission agreement slightly later in May

16 states closer to EU standards in border control and management, the EU relied also on the Ohrid Border Security Process as a joint effort of different international organisations to improve border security and management in the Balkans. It has been argued that the EU s strategies for initiating reforms in domestic justice and home affairs have been successful even if the concrete incentives for rule adoption differed in the two case studies. In Croatia, the crucial incentive proved to be the prospect of an eventual EU integration and the conditionality principles linked to EU accession. The EU could ensure a strong lever for rule adoption in justice and home affairs by including the respective rules on an early time-moment and in a prominent place into the country s rapprochement with the Union. By contrast, the value added of the Ohrid Border Security Process was openly questioned in that the initiative would be counterproductive in terms of loosing time and energy. The case study on Macedonia equally revealed that the EU could successfully transfer its JHA agenda to the Western Balkans although evoked by a different incentives structure. Even if membership conditionality played an important role in motivating Macedonian actors to initiate reform policies, the immediate process of rule alignment was overwhelmingly guided by the interest to achieve the newly defined reward of a liberalised visa regime. The EU has used Macedonia s desire for a more relaxed visa regime by linking a different visa regime to the country s efforts with fighting illegal immigration and other reforms in domestic justice and home affairs. This strategy has proven very powerful. Macedonian authorities have frequently named the prospect of a more relaxed visa regime as the strongest single incentive to speed-up reform efforts in domestic justice and home affairs. Concluding it has to be stated that the EU s strategy is effective in terms of initiating reform efforts but creates tensions with broader objectives for the region. Although the EU s overall aim is to integrate all these countries and to support them in their transformation towards stable and open European-minded societies, its visa regime functions as an obstacle to this very aim by confining the movement of persons, in a way that they lose sight of the wider horizon. 70 per cent of all Serbian students have never left their country, thus having just a very vague idea of what the EU may be like. The feeling of being located in a Balkan ghetto, to which the EU applies a consular sadism, has created a strong sense of humiliation and of holding a pariah status in the region (ICG 2005: 8-10). The result is a popular frustration with the EU s policies which undermines the broader stabilisation efforts for the region. A Macedonian official in the country s mission to the EU brings the dilemma to the point: According to the annual reports, Macedonia made significant progress from 2002 on and this will continue. But they are always saying we need to see more. Some member states are very reluctant to dismantle their borders. [ ] So there are

17 people who are questioning themselves why are we doing so much and why are we taking such a painful progress and the process is very painful, especially for a society in transition like Macedonia. We had a different system for 50 years so you can imagine how difficult it is to align the legislation and procedures and to change the minds of the peoples in the administration. So, basically, we are doing a lot but young people are asking: why are we doing all these things if they don t want us anyway? (Int. 6, , Brussels)

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