EULEX Audit Special Report: Discrepancy between ambition and responsible action in the European Union’s foreign and security policy

EULEX was supposed to be a powerful symbol of the EU's engagement and standards as a professional, state of the art, rule-based force. Yet, as The Guardian pointed out already in 2011, over its initial three years EULEX achieved little. Indeed, the challenges faced in the context of Kosovo, a very young State, which is not recognized as such by five EU Member States, remain many. However, the Special Report reveals that some of the main causes for the modest results of EULEX are internal, relating to lack of organization and coordination. In this regard, the Audit Court breaks new ground since for the first time it publically sheds light on the internal flaws of the EU mission.

For example, there were significant areas where a better management by the European External Actions Service (EEAS) and the European Commission could have made EU assistance more effective. Remarkably, almost two weeks after the publication of the Report, the foreign and defence ministers of five leading EU Member States (France, Germany, Italy, Poland, and Spain, but not the UK) met in Paris and emphasized that the "EU must set up (...) structures (...) and build a higher degree of synergy between the EEAS and the Commission in order to ensure their success".

Discrepancy between stated ambition and firm action is not an unknown feature in the development of EU foreign and security policy. However, current events raise deeper concerns regarding the Union's approach towards its foreign missions - especially in the context of the ongoing financial and economic crisis (between 2007-2011, almost € 700 million were spent on the wider rule of law in Kosovo, see the Report).

The EU Rule of Law Mission

EULEX was set up in late 2008 and became fully operational one year after as a civilian and police force. Its mandate emanated from the UN Interim Administration in Kosovo (UNMIK), which handed over authority in the field of justice, police, and customs to the newly created EU Mission, shortly after the declaration of independence of Kosovo (February 2008), and the entry into force of its Constitution (June 2008). According to its founding act (see EU Joint Action of February 2008 and the latest Council Decision of June 2012), the aim of EULEX is to "assist the Kosovo institutions, judicial authorities and law enforcement agencies in their progress towards sustainability and accountability and in further developing and strengthening an independent multi-ethnic justice system and multi-ethnic police and customs service". To quote Mr. Roy Reeve, a British diplomat who participated in the planning phase and acted as the first Deputy Head of EULEX, the aim of the EU Mission is "to work alongside our opposite numbers and increase their capabilities, while we will retain some executive authority and powers, if there are cases which may be too difficult for the local authorities to tackle". Such difficult cases involve organized crime and corruption, as pointed out by the OECD in its report, which highlighted the high risk for ‘state capture'.

The Special Report

A recurrent theme, which connects most issues highlighted by the Report, is the constant divergence between the promised and the delivered, between the planned and the actually implemented. Firstly, the mission was initiated with ambition to help Kosovo construct crucial rule-of-law fundamentals: an independent justice system, accountable law-enforcement agencies and a functional customs service. In practice, though, there were no clear benchmarks and objectively verifiable indicators to assess progress in meeting these objectives.

Secondly, the value of the Report is to emphasize that many of the shortfalls of the EU Mission are purely of an organizational and administrative nature. The Court of Auditors stresses significant delays, insufficient transparency, and staffing constraints. Delays over a year led to failed efforts in creating a single intelligence system within the Kosovo Police, which resulted in its weak overall capacity. Lack of transparency is most alarming, particularly for the judiciary branch. There is a severe lack of clarity in the way cases are allocated among judges and prosecutors. Although the EU funded project on a "Court Management Information System" that was launched in 2004 partly addresses this problem, it is still not fully operational.

Perhaps the biggest disappointment relates to staffing. According to the Report, Member States "pledged fewer staff than was authorized and subsequently seconded fewer than originally pledged". The qualifications of secondees were also questioned: the Court of Auditors found that eleven Member States submitted unqualified candidates to at least one of the ten selection procedures it reviewed. Moreover, the short duration of secondments had a negative impact notably in the justice area, rendering the prosecution of complicated cases particularly difficult.

Lastly, lack of coordination, both internal and external, has been a serious impediment to EULEX's function. Internal coordination, understood as coordination between EU bodies, is of paramount importance for an effective use of EU funds in Kosovo (almost € 4 billion since 1999). Up to four different EU entities operated in Kosovo, now reduced to two: EULEX and the European Union Office in Kosovo / European Special Representative in Kosovo. This Office is an integral part of the European External Action Service and the European Commission's representation in Pristina, tasked to ensure a political and technical dialogue with the Brussels institutions. The European Commission has provided capacity building support to Kosovo in the field of the rule of law since 2000. Yet, when the Council gave EULEX tasks in the same field, neither its comparative advantages nor opportunities for synergies with Commission projects were identified.

As for the external perspective, coordination with the U.S. has been a particular challenge due to "the wide range of actors involved in the rule-of-law field" as well as the "very active" role played by the U.S. in the process of drafting legislation, notes the Report. The U.S. leadership has been essential for Kosovo in its recent history and continues to play a crucial role (it is the largest bilateral donor in Kosovo), especially with regards to its "Euro-Atlantic integrations". Hence, better coordination between the EU structures and the U.S. is important to attain.

The official EULEX reaction to the Report has been one of agreement "with the majority" of observations and EULEX officials have already addressed several of the recommendations, claimed the mission spokesperson. Has this general acceptance led to some positive impact on the ground? Last Friday (16 November), a former government minister - among seven others - was charged with corruption by an EU prosecutor (see EurActiv news report for details). However, aside from the immediate internal reforms for EULEX, what remains to be seen on a more general level is how the European Union will match its concrete modus operandi with its ambitions.

Future steps

The EU runs the risk to pay a double price for the lack of its efficiency in Kosovo. Not only will it have disbursed billions of assistance in vain but also it may leave behind a situation (organized crime not tackled) that the EU will have to address otherwise, through the combined efforts of its own law-enforcement agencies (EUROPOL) and of the Member States' rule-of-law structures.

Will the EU match its ambition on foreign and security policy with serious commitment? Or will more foreign missions come to be viewed as a "symbol of incompetence"?

Vigjilenca Abazi LLM is a PhD Fellow at Amsterdam Centre for European Law and Governance. Her personal page can be accessed here.