According to Ibrahimovic & Co Managing Partner Adi Ibrahimovic, “the EU’s engagement with Bosnia and Herzegovina has gone through sporadic periods of intensifying cooperation and uncertain situations,” leading Dimitrijevic & Partners Partner Davorin Marinkovic to summarize the current status as: “frankly speaking, the public perception is that nobody actually knows.”
According to Nedzida Salihovic-Whalen, independent attorney at Law working in cooperation with CMS-RRH Vienna, Bosnia and Herzegovina received the status of a potential candidate in 2013, with the SAA being signed in June 2008 and coming into force on June 1, 2015. Marinkovic explains that in May 2019, the Commission adopted the Opinion and an accompanying analytical report, which sets out 14 key priorities. These are, according to Maric & Co Senior Partner Branko Maric, a required step “for the Commission to recommend the opening of EU accession negotiations with Bosnia and Herzegovina.” Marinkovic adds that “in December 2019, the Council of the EU welcomed the Opinion and called on the Commission to focus its annual reports for Bosnia and Herzegovina, starting with the 2020 report, on the implementation of those key priorities.”
With the EU accession process consisting of seven stages and “given the fact that Bosnia and Herzegovina is still in this phase of EU accession, a realistic timeline is hard to determine as it depends on a variety of factors,” Maric says. According to him, “in its 2020 assessment of Bosnia and Herzegovina [the EU determined] that the country ‘is overall at an early stage regarding its level of preparedness to take on the obligations of EU membership and needs to significantly step up the process to align with the EU acquis.’” This leads Marinkovic to argue that “there is an overall impression that today the accession is more distant than ever,” especially since “this pessimism goes both ways.” Ibrahimovic echoes the difficulty in identifying any realistic timeline and notes that “it seems unlikely that the fundamental reforms required to adapt to European standards will happen in the near future.” And Salihovic-Whalen grounds this feeling by explaining: “The most important condition for further steps towards EU membership is the successful harmonization of legislation and the implementation of reforms. It is a never-ending lengthy process which is demanding especially for the entities that are required to transpose a large number of EU regulations.”
The Complexity of BiH’s Set-Up
Marinkovic explains that, “due to the specific position of Bosnia and Herzegovina as a post-conflict country under something that may be considered an international tutorship, there has been strong involvement of the international community in drafting new legislation through technical assistance projects. In some cases, it was purely transmission of the directives, without really understanding the meaning of the words, and the ultimate result is that neither the public nor private sectors were mature enough for some pieces of legislation.”
Maric explains that BiH’s “political structure is very complex, and the harmonization process covers all structural levels of the state.” He notes that the “harmonization required by the EU has two separate dimensions: one regulates the harmonization of a complete body of the state’s legislature (state, entity, and cantonal levels) with that of the EU, while the other regulates matters of internal harmonization, with the goal of making legislation and case law uniform across entity lines.”
In terms of legislation, Ibrahimovic says that “many laws in Bosnia and Herzegovina have been harmonized, some of which are the law on residence and stay of foreigners, labor law, election law, and so on.” Salihovic-Whalen adds that “progress has been made so far in the area of customs legislation, on visas, border management, and asylum and migration, and in the areas of intellectual, industrial, and commercial property rights.” Marinkovic also points to competition, environment, energy, public procurement, consumer protection, data protection, and the judiciary as areas that were “fully and partially harmonized.” Regarding the second dimension, on internal harmonization, Maric notes, however, that “case law lacks consistency … Ultimately, it was concluded by the 2021 Report of the Commission that Bosnia and Herzegovina needs to establish a judicial body to ensure the consistent interpretation of the law and harmonization of case law across the country.”
On the Docket
“The most important reforms are related to an independent and effective judiciary and civil service, in order to create a positive environment for business,” says Marinkovic.
On the latter, Ibrahimovic explains that “Bosnia and Herzegovina is at an early stage with public administration reform, with very slow progress on ensuring a professional and depoliticized civil service and a coordinated countrywide approach to policymaking. To guarantee a professional civil service, civil service procedures must be based on merit principles and free from political interference. However, in practice, the situation is still significantly different.”
On the former, Salihovic-Whalen points to the European Commission emphasizing that BiH “requires systemic reforms in important segments of the Rule-of-Law, such as the judiciary, and it is crucial that such reforms are primarily in the interest of the state and its citizens.” Ibrahimovic notes that “court proceedings are still very unpredictable, lengthy, and uneven in decision-making. It is clear that, without the reform process of these areas, there is no legal certainty.” Marinkovic adds that “enforcement of contracts is extremely slow, and this is quite discouraging for the business community and foreign investments.”
Mixed Feelings – or Simply Mixed Numbers
Ibrahimovic explains that, when it comes to joining the EU, “public perception in Bosnia and Herzegovina is always an ungrateful topic, due to diverging data on each issue.” Indeed, he points to two conflicting surveys – one from the Bosnian Directorate for European Integration and one from the Balkan Barometer. While the first shows a drop in support for membership between 2016 and 2018, from 76% to 56%, the second indicates that the number of people assessing membership as ‘good’ increased from 33% in 2016 to 47% in 2019. Salihovic-Whalen, however, reports that the Directorate for European Integration conducted a public opinion poll in October 2020, which concluded that “in the event of a referendum on membership in the European Union, 75.6% of respondents would vote to join the EU.”
Salihovic-Whalen provides some nuance as to the thinking behind the different responses. According to her, respondents of the October 2020 poll identified “the guarantee of lasting peace and political stability (33.2%), freedom of movement of people, goods, and capital (26%), and respect for laws and regulations (18.4%)” as the main reasons for supporting accession. “Respondents who do not support BiH’s accession to the EU cited the fear of higher living costs and taxes as the most common reason (41.7%).”
“The public opinion regarding the accession of Bosnia and Herzegovina has been shaped by the centrifugal and centripetal forces of Euroskepticism and Europhilism,” Maric explains, adding that “the overall drag of the accession process casts a shadow of disappointment on both Bosnian and EU institutions.” Marinkovic too says that “fatigue of the general public about the topic is progressively increasing, or, to put it in other words, people are less interested in the debate about joining the Union as nobody really expects it will actually happen.”
At the end of the day, Maric believes that “the predominant mindset remains, however, supportive. Although some discrepancies in support exist across entity lines, the majority of all three chief ethnic groups remains pro-European.” Salihovic-Whalen concludes that “BiH and its citizens share the goals, values, and principles of the EU, are determined to develop society on the system of values and achievements of European democracies, and aspire to be an integral part of modern European political, economic, and security structures.”
This Article was originally published in Issue 8.11 of the CEE Legal Matters Magazine. If you would like to receive a hard copy of the magazine, you can subscribe here.
