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[EWB Interview] Priebe: There are similar problems in all Western Balkan countries

It can often be heard that the “Priebe Report” on the rule law helped resolve the political crisis in North Macedonia. One was also published last year in Bosnia and Herzegovina. In recent years, calls for new “Priebe Reports” in other Western Balkan countries can often be heard, especially in Serbia, where this has been a repeated demand of the opposition.

We had the opportunity to talk with Reinhard Priebe, the man by whose name these reports are known. An experienced legal expert, Reinhard Priebe was the chair of the Senior Expert Group which published the rule of law reports in North Macedonia and Bosnia and Herzegovina at the initiative of the European Commission. Priebe was a speaker on the Belgrade Security Forum 2020 “No Trust, No Peace”, which took place in October.

European Western Balkans: Your name is synonymous with the report of the Senior Expert Group on the Rule of Law in Macedonia, which is considered to be of crucial importance for solving the political crisis in North Macedonia. Do you agree with this assessment?

Reinhard Priebe: As you might know, I do not like the name Priebe report because it was prepared by a group of senior rule of law experts. I was just chairing the group, but there have been much more knowledgeable experts in that group than myself. I do not shy away from my responsibility, but it is a bit unfair towards the other members of the group to just call it the Priebe report.

We have been asked as independent experts in 2015 by the European Commission to look into the situation with rule of law in Macedonia. At the time, as you recall, it was a situation of nearly a state crisis in Macedonia and that was the reason why the European Commission asked in addition to the annual progress reports to have this assessment by independent experts. We did a second report shortly after the government changed in 2017, which was basically meant to assess what had changed and what had not changed since the 2015 report.

I am not in charge to supervise the follow-up of these reports. We made quite concrete recommendations, but from I have heard and what my contacts tell me is that the government of North Macedonia has taken this report very seriously and has set up quite a lot of strategies, programs and actions to work through the recommendations which we made in the reports. Some of the recommendations were relatively easy to implement, others are very difficult, and what I read from the latest report of the European Commission, there is quite a positive assessment. Not everything is yet perfect, but quite a positive assessment of the progress the country has made in this particular area.

We have been told by former MEP Ivo Vajgl, part of the EP “troika” which mediated the inter-party dialogue in North Macedonia, that the Priebe report had a “key role” for their own work, and that these “less diplomatic” reports can become a basis for societal dialogue. How do you see your role in this dialogue process? Do you also believe it had a crucial role?

RP: I hope so. Do not ask me to tell you how successful our report was, that is for others to judge. Of course, in preparing both reports for Macedonia, and you might be aware we did a similar report last year for Bosnia and Herzegovina, we did not only talk to the officials and judicial councils, but we talked to quite a lot of NGOs. I must say I was very often positively impressed how active some of these NGOs are in sometimes not easy conditions and also in situations where they feel threatened. We noted the emerging engagement of NGOs in the reports. This is a very good development but much more would be needed in this regard. Other issue where we have noted huge problems is of course proper functioning of the media.

Many of the issues I think we touched upon in the two Macedonian reports and in the Bosnian report do not occur identically in other countries in the Western Balkans but were similar. I am not saying our Macedonian report could now be copied and pasted for Montenegro or Serbia, but you have a considerable part of the reports where I have been told and where we had the impression that problems might be quite similar in other countries. Therefore, I modestly recommend reading these reports not only in the countries concerned, but also in other countries.

You might have other areas where the problems are different, for instance in North Macedonia you have to take into account the function of the state for different ethnicities of the population which sometimes led to complicated proportional rules which conflicted with the efficiency of the institutions. Bosnia and Herzegovina is still in another situation because that country is a very particular case and has quite a complicated constitutional framework that is already quite an obstacle to make things function properly.

EWB: Do you think that having such reports for all accession countries in the Western Balkans could be beneficial to the EU enlargement process?

RP: Well, it is not for me to decide. Each of the three reports I contributed to were prepared on the request of the European Commission and I would not take myself the initiative to do any of these reports. Of course, you always have to be a bit careful that something which was triggered in an ad hoc situation, goes away to become a bit routine, so there is a “Priebe report” here, there should also be one there.

Maybe the added value of the reports we did was that we left diplomatic language and political considerations totally apart, we just said very directly where we see problems

I have the impression that in North Macedonia it turned out to have been quite a useful exercise, in Bosnia I don’t know yet, I don’t have enough information. Maybe the added value of the reports we did was as you said yourself, that we left diplomatic language and political considerations totally apart, we just said very directly and I hope politely enough, where we see problems and that seemed to have worked relatively well.

EWB: What else can the EU do to improve the process of accession negotiations when it comes to the rule of law? Obviously, it is a problem that the existing mechanisms cannot effectively tackle. What could maybe be done to improve the Commission reports themselves?

RP: I am not sure if I fully agree. First, the reports of the Commission have changed a bit over the years, they were on the way of being perceived as a sort of a bureaucratic routine, but if you read the recent communication of the European Commission and the reporting package from the 6 October, first you see a very, very huge focus on the rule of law issues. It is always the first point and it is clearly said that it is in the current situation the most important point. In addition you see also very concrete recommendations which are made, so I would rather say you see an evolution of reporting, in particular in the area of rule of law, which certainly has become more focused and more concrete and therefore could be very useful for the countries.

By the way, the European Commission has also recently issued a very detailed report on the rule of law within the EU, and it is quite an important issue that the Western Balkan countries are not alone with this problem. If you read the internal rule of law report, you see that there were huge rule of law problems, not in all member states, but in some of them, and that the Commission does not have different standards when it deals with the pre-accession countries in the Western Balkans and when it deals with its own member states. Therefore, in general you cannot put much more focus on the rule of law.

The recent report of the European Commission is very much focused on rule of law, very much to the point, so you can say no other “Priebe report” is maybe needed anymore

In addition to that, to make things even more complicated, the COVID crisis is also a huge challenge for the functioning of the rule of law. The measures which have been taken in all European countries, be them members of the EU or not, are far-reaching limitations of fundamental rights of individual citizens. We have in my own country, Germany, a huge debate on that and many people are going to courts and not rarely they win. Coming back to normal after the crisis and not using restriction of fundamental rights which are needed to overcome this pandemic to become permanent afterwards, that is an additional challenge.

We have quite a lot of things to work on, but I must say just looking at the recent report of the European Commission, it is very much focused on rule of law, very much to the point, so you can say no other “Priebe report” is maybe needed anymore because we have these good reports.

EWB: These reports are focused on the rule of law, but it seems that they are more diplomatic than these expert group reports were and you mentioned yourself that you put politics aside and looked at the facts. And you were able to, according to the experts, pinpoint the most burning issues, disregarding the structure of the Commission reports and of the negotiating chapters, where this criticism can sometimes get lost. Is this something that is maybe an added value in this kind of reporting, where you move politics aside and you are able to highlight the most burning issues better than these structured reports can do?

RP: It seems that was quite appreciated. Just to avoid any misunderstandings again, I do not think that Commission reports are driven by politics. But I was quite surprised, especially after the first Macedonia report, how many people approached me from the country and said “we are so grateful that for once somebody said what is the situation”. Nobody told me that he or she was offended by a too tough language. Again, we tried to be fair and objective and we did not take political sides neither, which was not an easy thing in Macedonia at the time. And we heard from both political camps.

It was very clear that the legal framework (in North Macedonia) was okay, even perfect in some areas, but it was not used as it could have been used to make the rule of law really function

You are right, maybe this kind of addressing things is not only looking at different chapters of the accession and different parts of the acquis, but just trying to say essential things. You might have seen that in the Macedonian report we did not criticize that there was a lack of legislation, we rather criticized implementation, culture and the behaviour. This is a bit tricky, because these are very vague notions, but it was very clear when we prepared the report that the legal framework was okay, even perfect in some areas, but it was not used as it could have been used to make the rule of law really function.

EWB: How do you see the possible effects of the new enlargement methodology? Do you believe it can address the shortcomings of the existing process?

RP: I see some quite interesting and good ideas in the new methodology. More focus, more political discussion where political discussions are needed, better use of the bodies under the Stabilization and Association Agreement, concentrating on the rule of law. I think this new methodology would be fit to make the process more efficient and maybe to overcome some bureaucratic burdens. If I have read well all the papers and the statements which have been made in the context of this methodology, it is also meant to speed up the process. All of this is a good way forward and we have to see if it works. There is no guarantee it will work, but I am quite confident that it could improve the whole process.

The new methodology would be fit to make the process more efficient and maybe to overcome some bureaucratic burdens

But what I think is very important in this context is that we do not see any changes in the conditions for becoming a member. Conditions are laid down in the treaties, basic values of the EU have to be respected, and to assess if the country can join the Union, the entire legislation of the EU, the famous acquis communautaire, has to be checked and screening has to be done, so in this regard there is no change. There would be a huge misunderstanding if people thought that simplifying methodology would mean that standards for joining the Union and the conditions have been changed, this is not the case.

EWB: Speaking of the standards, many people claim it is now much harder for a country to join the EU than it was 10 years ago because the EU raised the bar when it comes to implementation of reforms. Is it realistic to expect that any of the Western Balkan countries actually close these chapters 23 and 24?

RP: I think my answer would be yes. It is very interesting that even when I was dealing in the European Commission with the Western Balkans in the early 2000s, I was already confronted with the argument “you are always increasing the conditions, they were much easier for previous candidates“. To a certain extent, it might not be wrong.

But to put it very bluntly, you cannot blame the EU for drawing conclusions from some lessons it has learned. We have had in the past the situation that countries which joined the European Union were definitely not yet ready to join. The experience has been that there had not been sufficient preparation of those countries with many negative consequences afterwards, also for the countries themselves. That triggered an attitude of the EU to be very diligent in screening and to look into the capacity of the countries to implement the acquis, so one can of course argue from today the EU has become stricter then it was in the 80s, but you can also argue it is applying the same conditions, but in a different situation.

You cannot blame the EU for drawing conclusions from some lessons it has learned. We have had in the past the situation that countries which joined the EU were definitely not yet ready to join

To give you another example which now is getting already historic. The EU has insisted since the early 2000s on cooperation of Serbia with the Hague Tribunal, and how often have I heard in discussing with Serbian officials the EU has created a new condition for the Stabilization and Association Agreement. And the EU at the time argued it is not a new condition, it is the rule of law in a particular case. I would not contest that joining the big club of the EU is potentially more difficult for countries who come later than for the countries who joined in the 70s or the 80s, not even speaking about the 2000s.

EWB: But do you think it is realistic that these countries, having in mind all the problems which they face – economy, social problems, political problems – can actually fulfil these standards in 5 to 10 years which is an expected date of accession? There are many who argue this is not even possible.

RP: I am optimist by nature, I think it is possible and let me also underline, I do not see any EU strategy, or even a strategy of individual member states, to make the accession so difficult they can never be achieved. That would be nonsense and it is totally contrary to all declarations which have been made in the past. Even now enlargement Commissioner was at the Belgrade Security Forum and said again that there is only one place for these countries, which is in the European Union.

You need to have enormous political determination (to join the EU), this must be number one political priority and endorsed by a broad majority of the population

It will be hard to meet the conditions, especially rule of law and also some economic conditions, but I definitely do not see that this is impossible. Giving timeframes is always difficult, but I think it is possible, and then again do not forget that two countries of former Yugoslavia, Slovenia and Croatia, have already joined. What is also of course important is that on the side of the countries, to make this happen within reasonable time you need to have enormous political determination, this must be number one political priority and endorsed by a broad majority of the population.

Where on the contrary you have mixed messages, you have reflections on plan B or plan C, making compliments to China or Russia forgetting about all the funding the country got from the EU, then with these kind of mixed messages things will not become impossible, but much more difficult. And of course, no country is forced into the EU against its will.

EWB: From your experience, do you believe that Western Balkan governments have genuine political will for improving the rule of law, which is a precondition for membership, or they only pretend to reform unless the EU pressures them enough?

This is a tricky question, and I am not quite sure how to answer that, because when we were preparing all these three reports on North Macedonia and Bosnia and Herzegovina, the preparation was a long sequence of many meetings with many stakeholders. Of course, officials’ declaration is always that they want to make progress, and they acknowledge the problem in the rule of law.

On the other hand, not all people who are in the system, who are part of the intelligence service, judiciary, ministry of justice, might have an absolute and immediate interest for huge changes. Sometimes there are also people who feel comfortable in the system in which they worked for a long time, sometimes for decades. It is to a certain extent a change of attitude or a change of persons, a change of generations. In the end you will have a good functioning democracy in a country when you have young brilliant lawyers who say “I want to become a judge because this is really rewarding, and I will be independent and I can take under the law the decisions I think are the right decisions.” But rule of law is certainly not the only area, obstacles have to be overcome and people who have worked in the system for a long time might have more difficulties to change than people who start from scratch in the new system.

EWB: But do you believe there is actual political will on the highest level to change all of this, as it seems to be the most important factor in determining the success of the reforms?

RP: Again, I am an external observer, I certainly see such will in some countries, and in other countries I see less. I must frankly say the situation in Bosnia and Herzegovina is very complicated. To put it in a very simplistic way, they have all the problems of the other countries, in addition they have the constitutional set-up. There are, according to my observation, differences in the degree of political determination to make the EU membership happen as quickly as possible. But they all say they want it, and people have to be taken by their words until they prove the contrary.

EWB: We frequently hear from both experts and politicians in Serbia that we need a “Priebe report” or a Senior Expert Group report on the rule of law. If a Commission came to you with such a proposal, would you accept?

RP: Let us first wait if somebody comes to me, we will see how old I will be and then decide what to do.

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