When it comes to Western Balkans and the rule of law, perfection can be the enemy of progress.
Vigilance is required across the Western Balkans to safeguard the rule of law. However, EU leaders must retain a sense of geopolitical and jurisdictional perspective in assessing how rule of law shortcomings are interpreted as a metric for EU accession readiness across the region. Placing too much emphasis on rule of law issues risks losing sight of the bigger geopolitical game that is unfolding across Southeastern Europe.
Furthermore, denying EU membership to the WB6 based upon rule of law concerns fails to consider similar challenges in recently acceded EU members Bulgaria and Poland. No believer in the European project would argue that either of these two European nations should be excluded from the EU for rule of law failings. This article argues that neither should the WB6 be excluded on the grounds that the judiciary remains a key area for reform.
According to World Bank data and building off previous WB30 research, the WB6 have a collective average ‘Rule of Law – Governance' score of 55.16/100 – substantially lower than the scores of France (73.81) and Germany (84.95). However, this gap narrows considerably when compared with EU member state Bulgaria, scoring 56.39, just 1.23 points above the Western Balkans average. With such a fine margin between the WB6 average and Bulgaria, delaying Western Balkan’s accession for reasons of judicial credibility appears shortsighted. The comparison with Poland is equally instructive.
Poland is rightly regarded as the preeminent EU success story in the 21st Century. Living standards have risen markedly since Poland's post-communist transition, with EU accession accelerating its economic and geopolitical integration into Europe. The country has emerged to occupy a pivotal geopolitical position in Central Europe and now spends a larger share of GDP on defence than all other NATO allies. However, despite Poland’s post-accession path having been on balance an undeniable success, its relationship with EU institutions has not always been easy. This is particularly true for the Polish judiciary and its prolonged struggle with EU legal norms. The rift culminated in two landmark 2021 rulings from the Polish Constitutional Tribunal that rejected one of the EU’s most important legal traditions: the primacy of EU law over national member state law.
In the first ruling, case P 7/20, the Tribunal held that the Court of Justice of the European Union (CJEU), by prescribing interim measures for the Polish judiciary, had acted beyond the competences (powers) that it was granted under the EU Treaties. The original CJEU interim measures judgement (to which P 7/20 was a ‘response’) was issued after serious backsliding on rule of law and judicial independence within Poland.
Later in 2021 the crisis intensified with case K 3/21 in which the Polish Constitutional Tribunal expanded its competence challenge and directly rejected the primacy of EU law over the Polish constitution. This case was unprecedented both in its direct repudiation of primacy, but also in making explicit reference to primary legislation and singling out Article 1 TEU’s mention of an ‘ever closer union’ between member states as a violation of Poland’s constitutional integrity. The Tribunal judgement did not occur in a vacuum and was brought on application from then Prime Minister of Poland Mateusz Morawiecki, whose PiS government sought a politically favourable judgement in order to legitimise their own campaign of infractions against EU legal norms (including, but not limited to, the run-up to P 7/20). They got exactly what they wanted. Never before had an EU member state attacked the Treaties so unreservedly. Shortly after K 3/21, rumours of a so-called ‘Polexit’ entered the European vernacular.
Some voices questioned Poland’s future in the EU, while others noted that if the legal gridlock remained unresolved – or worse, if the Polish interpretation of primacy spread to other member state constitutional courts – then this would effectively reduce the EU to a weak confederation of loosely aligned states. It would have been easy for political hubris to provoke an emotional, shortsighted reaction from EU leaders, further inflaming the situation. This was not a moment for panic, but rather a time to look for solutions. Among Poland’s 37 million citizens, there is a diversity of viewpoints on EU membership. Sections of Polish society feel that the EU has overly restricted sovereignty and would favour less integration, while larger portions favour either deeper integration or maintaining the status quo. Conversely, support for ‘Polexit’ remains low at 5%. The judgement of K 3/21 and the surrounding issues with rule of law should never have genuinely threatened Poland’s EU membership.
Thankfully, in 2026, the situation has cooled significantly. A change of government in Poland has seen Prime Minister Tusk adopt a broadly pro-EU stance. The judicial relationship between Poland and the EU has been rehabilitated substantially, with financial disbursements now unfrozen and flowing as designed. Additionally, CJEU case C-448/23, Commission v Poland in late 2025 comprehensively rejected the Polish P 7/20 and K 3/21 interpretations on primacy. Importantly, the CJEU took care to clarify that the Treaties do provide avenues for member states to challenge the validity or interpretation of EU norms, but this stops short of ‘unilateral redefinition of the limits of EU competences by reference to purely national constitutional criteria’. The EU legal framework welcomes robust dialogue and negotiation, but primacy is a prerequisite for the functioning of the Union. The existence of fundamental components such as the single market would be impossible without it. This is EU flexibility, compromise and clarity at its most evident.
In 2021, after the K 3/21 ruling, the executive and judicial branches of the EU deserve immense credit for their handling of the situation. President of the European Commission Ursula von der Leyen articulated the EU’s position: ‘I deeply regret that we find ourselves in this situation. I have always been a proponent of dialogue and I will always be. This is a situation that can and must be resolved. And we want a strong Poland in a united Europe. We want Poland to be at the heart of our debates in building a common future. Poland has a stake in Europe.’ Von der Leyen adopted a practical, pragmatic approach geared towards finding a resolution rather than viewing a defiant judiciary as sufficient grounds to render an entire country incompatible with EU membership. Those who want to see the EU weak celebrate rigidity and exclusivity within rule of law criteria, as these requirements would see states such as Poland and Bulgaria outside of the EU. A stronger Union acknowledges these problems and works to resolve them internally through dialogue and compromise. The alternative is that countries in Eastern Europe are prevented from developing their institutions within the EU umbrella and are instead cut adrift, atomised and vulnerable to both domestic political backsliding and the watchful influence of Russia and China.
The idea that rule of law instability in Poland and Bulgaria should jeopardise the European futures of 37 million Poles and 6.5 million Bulgarians is irrational. It is equally misguided that rule of law concerns should be treated as an insurmountable accession hurdle for the Western Balkans. Denying EU membership to the millions of people living across the WB6, right on the shoulder of Europe, based on judicial shortcomings would be a geopolitical own goal. Accession delay invites rule of law backsliding, waiting-room fatigue and greater vulnerability to malign interference from the EU’s geopolitical rivals.
Von der Leyen tactfully demonstrated a willingness to solve the problem and a sense of perspective when it came to the importance of keeping Poland in the Union despite this unprecedented legal impasse. That same willingness must now be shown to the Western Balkans considering what is at stake: losing influence in the EU’s own backyard. As long as membership remains aspirational, what are the likely consequences for the rule of law in the WB6 considering prolonged Russian interference and strings-attached Chinese investment? The EU must ask itself these questions every day that the accession criteria remain an excessive barrier to membership.
This is not to say that the EU should turn a blind eye to the judicial problems that exist in the Western Balkans. Much progress needs to and will be made on this front across the WB6. But only the EU can take the steps needed to present rapid accession as within reach for the region, from which point momentum will gather.
During the Polish rule of law saga, cool heads prevailed in Brussels and Luxembourg. Those same cool heads must now turn their attention to the Western Balkans. Just as rule of law issues rightly never jeopardised Polish membership of the EU, similar concerns over the Western Balkans should not slow the accession process. Von der Leyen was right to say that ‘Poland has a stake in Europe’. So too do the Western Balkans. The Union must bring the WB6 within the EU umbrella, supporting their institutional development while also securing Europe’s future in the Western Balkans.
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