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Enforcing the Rule of Law in the EU. In the Name of Whom?

Enforcing the Rule of Law in the EU. In the Name of Whom?

is the ignorance of the “us and them” divide. The insufficient predictability of the EU’s requirements and action together with an alleged “double-standard” are the first cracks populist governments use to gain some leverage by using the argument that the EU lacks objectivity. Pursuant to Art. 7 TEU, proceedings may indeed be started, in case of a “clear risk of a serious breach” of values, and sanctions may be taken “in case of a seri- ous and persistent breach by a Member State of the values referred to in Article 2”. Quite unsatisfactorily however, the provision does not provide any definition of a seri- ous and persistent breach of values. Presumably we can relate it to the notion of “sys- temic threat” used in the CJEU’s and the European Court of Human Rights’ case law. But there remains to determine if, and to what extent, the difference between the unwill- ingness and the incapacity of a Member State to respect and uphold the rule of law matters. Is the intention to disrespect EU law and values, in particular when it is ex- pressed in a political program, a significant and constitutive element of a serious breach of values? I would answer positively. Accordingly, the distinction between an isolated infringement and systemic or systematic infringements, is a cardinal divide. The differ- ence does not lie only in repetition or duration: also the gravity and intensity of the in- fringements are at stake. There remains to determine the respective importance to be given to every criterion though.

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The double proximity paradox in peacebuilding : implementation and perception of the EU rule of law mission in Kosovo

The double proximity paradox in peacebuilding : implementation and perception of the EU rule of law mission in Kosovo

This contribution increases the understanding of the EU ’ s role in post-con fl ict settings by exploring perceptions of EULEX by local rule of law experts. Drawing on critical peacebuilding and the decline of normative power Europe literatures, we develop an analytical framework, underlining the importance of the intention – implementation gap and the implementation – perception gap in understanding how EU missions are perceived. By comparing local expert narratives to those of EULEX judges, prosecutors, and legal o ffi cers, we contend that the core problem for the negative perception of the mission results from what we call the double proximity paradox in peacebuilding. The fi rst paradox is one of implementation and transpires when an actor commits substantial resources to address structural problems in a post-con fl ict territory due to its centrality for its own interests, but fails to uphold its commitment as its immediate interests can only be achieved through agents who contribute to these problems. The second paradox relates to perception and transpires as high commitments raise expectations of structural impact. The visibility of the actor ’ s investment makes any implementation failures more tangible. The actor is therefore, paradoxically, the most open to criticism in a territory where it is doing the most.

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Rule of law or rule of thumb? A new Copenhagen mechanism for the EU. CEPS Policy Brief No. 303, 20 November 2013

Rule of law or rule of thumb? A new Copenhagen mechanism for the EU. CEPS Policy Brief No. 303, 20 November 2013

The European Union, and its Area of Freedom, Security and Justice (AFSJ), is founded on a set of common principles of rule of law, democracy and human rights. This has been officially enshrined in the body of Article 2 of the Treaty on European Union (TEU) which lists “respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities” as the shared values on which the Union is rooted. One of the current modalities of action to ensure that all member states of the EU respect Article 2 TEU is to filter their compliance with these values before they accede to the Union. The so-called ‘Copenhagen criteria’ have been established in 1993 to ensure that all new EU member states are in line with the Union’s common principles before crossing the bridge towards membership. That notwithstanding, no similar method or instrument exists to supervise the respect of these same principles after accession. This has been referred to by Vice-President of the European Commission Viviane Reding as the “Copenhagen dilemma”, which she describes as follows: “Once this Member State has joined the European Union, we appear not to have any instrument to see whether the rule of law and the independence of the judiciary still command respect”. 1

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The Triangular Relationship between Fundamental Rights, Democracy and the Rule of Law in the EU: Towards an EU Copenhagen Mechanism. CEPS Paperbacks. November 2013

The Triangular Relationship between Fundamental Rights, Democracy and the Rule of Law in the EU: Towards an EU Copenhagen Mechanism. CEPS Paperbacks. November 2013

and standardisation, and best practices/solutions. They affect the rule-of-law features designing the EU inter-institutional balance, which has been granted to the so-called Community method of cooperation and modify the ways in which EU decision-shaping and -making is supposed to take place according to the EU Treaties. Particular issues of concern include matters of democratic accountability and judicial control gaps, or the unbalanced way in which they handle scrutiny, and a lack of coherency/consistency with other existing EU legislative frameworks and policy agendas. Similar concerns have been raised concerning ongoing EU surveillance and monitoring systems in the field of economic policy coordination, in particular the European Semester for Economic Policy Coordination. The study shows the inherent difficulties in any attempt at benchmarking rule of law in the EU, which relate to its political, non-neutral and subjective methodologies. These pose additional challenges in the attempts to conduct a fully comprehensive qualitative assessment of member states’ systems and their evolving domestic particularities in a reliable, accurate and objective manner. The study underlines that the use of benchmarking should be limited and taken with caution. It also highlights the importance of ensuring the provision of independent academic knowledge at times of ensuring the legitimacy and trust-worthiness of these and any future EU evaluation and supervisory methods, and recommends the setting up of a new interdisciplinary platform of academics with proven expertise on rule of law aspects which would issue an annual scientific report on the situation of fundamental rights, democracy and rule of law in EU, and would be independent from the European institutions and agencies.

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EU competition law and the rule of law: justification and realisation

EU competition law and the rule of law: justification and realisation

The alternative justification offered for the prominence of Article 9 commitment decisions is that they are perhaps the most powerful tool conceivable for the European Commission to realise its competition policy goals with absolute effectiveness. They constitute the unrestrained, unpredictable enforcement of competition policy through sheer discretion. It will be demonstrated that through commitment decisions it is possible to A) secure changes to any conduct, even if beyond or below the pre-existing scope of EU competition law, and B) negotiate any remedial package with businesses, regardless of its connection to the initial competitive concern. Essentially, the Commission can successfully sanction conduct and redraw markets according to its idealised vision for their perfect operation with maximum efficacy. Once again however, C) such effective policy realisation through ad hoc discretionary enforcement is achieved at the expense of approximating the formal rule of law ideal. Commitment decisions substantially diminish normative comprehensibility for businesses. In sidestepping the restraint and rigidity of the Court’s case law, the certainty afforded by every authoritative norm of EU competition law is systemically depleted. Like the conditional exemptions of old, legality is also dependent upon unforeseeably offering whatever remedial package is necessary to please the Commission. And, D) again, the EU Courts are implicated, though their culpability is less clear. Essentially, the Commission’s absolute discretion in commitment decisions prioritises the short-term gains of enforcing competition policy with efficacy in individual instances at the expense of long- term movements towards realising the formal rule of law ideal.

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The Internal-External Security Nexus and EU Police/Rule of Law Missions in the Western Balkans

The Internal-External Security Nexus and EU Police/Rule of Law Missions in the Western Balkans

These internal needs translate into patterns of behaviour that in the post-conflict states of the Western Balkans have attempted to shape the public security institutions through a combination of advice (i.e. 'suggesting' reforms) and imposition. A key EU mechanism used during the post-conflict and stabilisation phase is the deployment of CSDP police/rule of law missions. This approach of strong control over the police/rule of law reform process tries to combine—even within a single mission—an international presence whereby limited executive and oversight competences (executive mandate) can co-exist with monitoring, mentoring and advisory roles towards the local administration (non-executive functions). This hybrid model has shaped to varying degrees the CSDP missions in Bosnia and Herzegovina, Kosovo and Macedonia. 4 In Bosnia, the EU Police Mission (EUPM)’s non-executive mandate has

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EU Competition Law and the Rule of Law: Justification and Realisation

EU Competition Law and the Rule of Law: Justification and Realisation

The alternative justification offered for the prominence of Article 9 commitment decisions is that they are perhaps the most powerful tool conceivable for the European Commission to realise its competition policy goals with absolute effectiveness. They constitute the unrestrained, unpredictable enforcement of competition policy through sheer discretion. It will be demonstrated that through commitment decisions it is possible to A) secure changes to any conduct, even if beyond or below the pre-existing scope of EU competition law, and B) negotiate any remedial package with businesses, regardless of its connection to the initial competitive concern. Essentially, the Commission can successfully sanction conduct and redraw markets according to its idealised vision for their perfect operation with maximum efficacy. Once again however, C) such effective policy realisation through ad hoc discretionary enforcement is achieved at the expense of approximating the formal rule of law ideal. Commitment decisions substantially diminish normative comprehensibility for businesses. In sidestepping the restraint and rigidity of the Court’s case law, the certainty afforded by every authoritative norm of EU competition law is systemically depleted. Like the conditional exemptions of old, legality is also dependent upon unforeseeably offering whatever remedial package is necessary to please the Commission. And, D) again, the EU Courts are implicated, though their culpability is less clear. Essentially, the Commission’s absolute discretion in commitment decisions prioritises the short-term gains of enforcing competition policy with efficacy in individual instances at the expense of long- term movements towards realising the formal rule of law ideal.

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The European Union’s Rule of Law Promotion in its Neighbourhood: A Structural Foreign Policy Analysis. EU Diplomacy Paper 04/2013

The European Union’s Rule of Law Promotion in its Neighbourhood: A Structural Foreign Policy Analysis. EU Diplomacy Paper 04/2013

The following essays consist of the summarised versions of five students’ Master’s theses written in the EU International Relations and Diplomacy Studies programme at the College of Europe in Bruges during the academic year 2011-12. These Master’s theses were supervised by the Chairholder of the TOTAL Chair of EU Foreign Policy. Due to the space constraints of this publication, only the essence of their research is presented here. The first four contributions are case studies from the EU’s neighbour- hood. Essay 1 questions the EU’s policies towards Bosnia and Herzegovina in the field of the fight against corruption. In essay 2, the SFP framework is applied to analyse the EU’s commitment to promote the rule of law in Ukraine. Essay 3 is dedicated to the analysis of gender in EU-Armenian relations, whereas essay 4 focusses on the EU’s micro-rule-of-law policies in Lebanon. Essay 5 offers a personal reflection on the use of the SFP analytical framework, underlining the strengths but also the ambiguities of the analytical framework.

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EU’S Cybercrime and Cyber Security Rule-Making: Mapping the Internal and External Dimensions of EU Security

EU’S Cybercrime and Cyber Security Rule-Making: Mapping the Internal and External Dimensions of EU Security

The Strategy purports to pursue five strategic priority areas which include firstly, ‘achieving cyber resilience’ is to be pursued by legislation, in particular by means of a Directive on Networks and Information Security (NIS), discussed in detail next. An NIS would require Member States to designate at national level competent authorities for NIS, who would in turn cooperate with each other at EU level and private actors would also report to NIS competent authorities. Soft law measures including awareness-raising exercises, key elements of transatlantic cooperation, form part of this specific first strategic target, similar to the EU-US WGCC, discussed above in S.III. 32 In respect of the second priority, that of ‘drastically reducing cybercrime,’ it is this priority which has become the focus of EU rule-making both internally and externally. The Strategy urges Member States who had not yet ratified the Council of Europe Cybercrime Convention to do so, also similar to the EU-US WGCC. In respect of the third priority, that of ‘developing cyber defence policy and capabilities under the Common Security and Defence Policy,’ it provides that the High Representative would invite the Member States and the European Defence Agency to develop an EU cyber defence policy, seeking to complement the work of North Atlantic Treaty Organisation (NATO). As regards the fourth priority, the development of the industrial and technological resources for cyber-security, it sought to promote a single market for cyber-security products, including voluntary EU certification and public-private platforms involving NIS solutions would be evolved. 33 As regards the fifth priority, the development of a ‘coherent international’ cyberspace policy for the EU, the EU would work more closely with International organisations such as the Council of Europe, the OECD, NATO, ASEAN, 34 in addition to its cooperation with the US, described as ‘particularly important’ therein. Nevertheless, the Strategy states that while the EU would launch international initiatives to promote global cooperation, it would not call for the creation of new international legal instruments. 35 Instead, the Convention would remain the model for drafting national cybercrime legislation and would also be a model for international cooperation. As regards ‘roles and responsibilities’, the Strategy explicitly states that EU ‘supervision’ is not the answer because cyber incidents do not stop at the borders of the digital economy and society. 36 Institutionally, the Strategy envisions overall a division of labour between the areas of (1) Network and Information Systems (NIS), (2) law enforcement and (3) defence, 37 involving a vast range of actors but notably excluding national data protection authorities.

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The Rule of Law and EU Data Protection Legislation

The Rule of Law and EU Data Protection Legislation

The article aims to analyse the evolution of the EU data protection legislation against the rule of law standards related to quality of law, formal justice and protection of human rights, focusing on some recent controversial issues related to the application of EU data protection model to technological environment. The analysis looks into the concepts of data controller and data processor as they are essential for the allocation of responsibilities in the processing of personal data as well as for the identification of applicable legislation. Further it considers the right to be forgotten and the implementation of the balance test in cases when there are opposing rights and legitimate interests of the data subject and data controller. The analysis is made on the basis of the EU data protection legislation, that is currently in force, the Opinions of the Article 29 Working Party and the case law of the Court of Justice of the EU (CJEU), which provides guidance on the uniform interpretation of the data protection concepts at EU level. The article also takes in consideration the current reform in the field of data protection in the frames of which in 2016 the newGeneral Data Protection Regulation has been adopted.

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An EU mechanism on Democracy, the Rule of Law and Fundamental Rights  CEPS Paper in Liberty and Security in Europe No  91/April 2016 Thursday, 21 April 2016

An EU mechanism on Democracy, the Rule of Law and Fundamental Rights CEPS Paper in Liberty and Security in Europe No 91/April 2016 Thursday, 21 April 2016

Beyond harming nationals of a Member State, all Union citizens in that State will also be detrimentally affected. Lack of limits to illiberal practices may encourage other Member States’ governments to follow, and subject other countries’ citizens to abuse. In other words, rule of law violations – if no consequences occur – may become contagious. Moreover, all EU citizens beyond the borders of the Member States concerned will to some extent suffer due to the given State’s participation in the EU’s decision-making mechanism, or to say the least, the legitimacy of Union decision-making will be jeopardised. Therefore, a state’s departure from the rule of law standards and the European consensus will ultimately hamper the exercise of rights of individuals EU-wide. As a further consequence of no consequent and uniform enforcement of fundamental rights throughout the Union, and regular health check of judicial independence of Member States for granted, mutual trust- and mutual recognition-based instruments are jeopardised. The CJEU has accepted that the presumption of EU Member States’ compliance with fundamental rights may be rebuttable – but if EU Member States cannot properly ensure an efficient, human rights-compliant and independent judiciary to carry out that test, how possibly could the principle of mutual recognition stand in EU JHA law? Beyond the political and social costs of the democracy, rule of law and fundamental rights deficit exposed in the non-compliant Member States, economic costs should also be mentioned. Rational law presents a necessary condition for economic transactions, and its application creates a sense of foreseeability and predictability on the part of economic agents. The latter is a necessary condition in order for rational economic actions to occur. Control of private capture and corruption, institutional checks on government, protection of property rights and mitigation of violence are all in close correlation with economic performance. Especially in times of financial and economic crises solid State institutions based on commonly shared values play a key role in creating or restoring confidence and fostering growth.

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Rule of law infringement procedures: A proposal to extend the EU’s rule of law toolbox  CEPS Paper on Liberty and Security in Europe, No  2019 09, May 2019

Rule of law infringement procedures: A proposal to extend the EU’s rule of law toolbox CEPS Paper on Liberty and Security in Europe, No 2019 09, May 2019

We focus on the judicial phase of the infringement procedure and show its great potential to tackle rule of law issues in the Member States, provided that the following rules are applied. First, the European Commission should call a spade a spade, and identify the rule of law problem explicitly. Second, the European Commission should not waste time and postpone its legal actions, while a Member State openly violates the rule of law. Third, the Court of Justice of the European Union (CJEU) should automatically prioritise and accelerate infringement cases with a rule of law element to avoid more harm being done by those in power. Fourth, interim measures should be used to put an immediate halt to rule of law violations that can culminate in grave and irreversible harm. Fifth, European institutions should establish a periodic rule of law review. It should be devised as a regular, possibly annual supervision mechanism, based on contextual analysis of national laws and policies, a scientifically proven methodology, objective standards and equal treatment of all Member States. It should help EU institutions to determine if there is a systemic threat to the rule of law in a given Member State, and provide additional legitimacy to the European Commission for initiating rule of law infringement actions and to the CJEU for ruling on such matters.

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The Kadi Saga and the Rule of Law within the EU

The Kadi Saga and the Rule of Law within the EU

It follows from the Kadi judgments that considerations relating to in- ternational peace and security may not, as such, render decisions impos- ing restrictive measures upon named persons and entities immune from judicial review. Those considerations are not “political questions” outside the scope of such review. On the contrary, in compliance with Article 19 TEU, the EU Courts, as guarantor of the rule of law within the EU, must exercise their review powers in full.

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"European Governance – Negotiation and Competition in the Shadow of Hierarchy"

"European Governance – Negotiation and Competition in the Shadow of Hierarchy"

The analytical framework focuses on the formal institutions since they largely define the rule structures supporting different modes of coordination in EU policy-making. Moreover, priority is given to the decision-making stage because the implementation of EU policies is subject to rather uniform rules that only vary between the First Pillar and the Second and Third Pillar, respectively. In principle, the member states are responsible for implementation and enforcement. The extent to which they resort to hierarchical or non-hierarchical coordination with public and private actors at subordinate levels of government varies both between and within the member states. In the relationship between the EU and the member states, however, implementation is embedded in the hierarchical structure of supranational institutions, at least under the First Pillar (Single Market, Monetary Union) and increasingly also under the Third Pillar (Justice and Home Affairs). The shadow of hierarchy is cast by the supremacy and direct effect of European Law. The European Commission as the Guardian of the Treaties can bring legal proceedings against any member state that violates European Law. The European Court of Justice (ECJ) has the power to authoritatively settle the case (Art. 227, 227 ECT). Competition policy is subject to similar procedures (Art. 82; 88 ECT). The member state governments, of course, can avoid hierarchical coordination by defying the ECJ – the EU has no coercive powers by which it could force its member states into compliance. Yet, it would constitute a serious breach of European Law. And domestic courts and enforcement authorities have to execute the rulings of the ECJ. This is particularly the case under the preliminary ruling procedures (Art. 234 ECT) where domestic courts refer cases of conflict between national and European Law to the ECJ to settle the issue.

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New Pact for Europe National Report POLAND  EPC Report, November 2017

New Pact for Europe National Report POLAND EPC Report, November 2017

exceptions) even pro-European politicians avoid talking about adopting the euro in the foreseeable future. Finally, despite public endorsement of the EU and the process of globalisation process, PiS’s “sovereignty instead of cooperation” rhetoric appears to be resonating within growing segments of the Polish electorate. The mixed reactions to the international criticisms of Poland’s recent political developments have made this evident. The PiS government-led reforms of the judiciary (and other legislative initiatives) have been criticised by both the Council of Europe (Venice Commission) and the European Commission, amongst others. These reforms were also debated in the European Parliament. In Poland, during the summer of 2016, large demonstrations across the country and in many cities protested against alleged violations of the independence of the judiciary. Polish society remains, however, very divided regarding the criticism from Brussels. According to a recent opinion poll, 60% of respondents agreed with the statement that the Law and Justice government wanted to subjugate the judiciary and seize all of the power for itself. At the same time, only 47% agreed that the EU cared about rule of law in Poland, while 53 per cent said that European politicians and institutions were biased against the PiS government. 14

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The Juncker Commission: A New Start for EU Justice and Home Affairs Policy? CEPS Essay No  15, 18 September 2014

The Juncker Commission: A New Start for EU Justice and Home Affairs Policy? CEPS Essay No 15, 18 September 2014

The role of Mr. Timmermans as ‘guider’, coordinator and supervisor of both DG JUST and DG HOME could bring closer scrutiny of Commission initiatives and policy programming, in light of the EU Charter. Similar results could be expected with regards to his role as a fundamental rights ‘watchdog’ of all the Commission services. A key challenge will be to ensure the smooth accession of the EU to the European Convention of Human Rights, which he will need to boost with stronger political impetus because it is facing considerable obstacles and delays. The nomination of a First Vice-President on Rule of Law could also be expected to develop a more substantive EU policy in this contested area, by continuing and further implementing the work of the previous Commission in developing an EU rule of law mechanism. 8

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Regulatory Trust in EU Free Movement Law: Adopting the Level of Protection of the Other?

Regulatory Trust in EU Free Movement Law: Adopting the Level of Protection of the Other?

In RegioPost, delivered later in a similar context, the Court came to a different con- clusion by considering the public interest justification to be proportionate. In this case, the Court of Justice, just as in Bundesdruckerei, found that a national regulation impos- ing a minimum wage on tenderers and their subcontractors is falling within the scope of Art. 56 TFEU. However, in contrast to the previous case, it held the restriction to be justified. For the Court of Justice, the minimum rate of pay imposed by the national reg- ulation is laid down in a legislative provision, which, as a mandatory rule for minimum protection, in principle applies generally to the award of any public contract in the region irrespective of the sector concerned. 114 The level of protection established by

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H v. Council: Strengthening the Rule of Law in the Sphere of the CFSP, One Step at a Time

H v. Council: Strengthening the Rule of Law in the Sphere of the CFSP, One Step at a Time

velopment of an elaborate fundamental rights case law, dating back to the Internationale Han- dellsgeselschaft case, in which the ECJ declared that “respect for fundamental rights forms an integral part of the general principles of law protected by the Court of Justice” (see Court of Justice, judgment of 17 December 1970, case 11/70, Internationale Handelsgesellschaft mbH v. Einfuhr- und Vorratsstelle für Getreide und Futtermittel, para. 4). On the distinction between formal and substantive conceptions of the rule of law, see P. C RAIG , Formal and Substantive Conceptions of the Rule of Law: An Analytical Framework, in Public Law, 1997, pp. 467-487. On the conception of the rule of law in EU law, see generally L. P ECH , ‘A Union Founded on the Rule of Law’: Meaning and Reality of the Rule of Law as a Constitutional Principle of EU Law, in European Constitutional Law Review, 2010, pp. 359-396.

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Personal Data Sensitivity in Japan

Personal Data Sensitivity in Japan

The purpose of this study was to investigate how ordinary Japanese people perceive and understand data sensitivity and sensitive data. Although the concept of sensitive data is described in an article of Japan’s revised personal data act, following the EU Data Protection Directive and the new data protection rule, there has been little research on whether this legally defined concept conforms to the general public’s perception of sensitive data in Japan and, if not, what differences exist between them. Using empirical data acquired through a questionnaire survey and appropriate statistical methods, we sought to clarify empirically the features of data sensitivity as perceived by ordinary Japanese people. This exploratory research revealed that ordinary Japanese tended to feel relatively low sensitivity to personal data related to their civic activities, which are typically mentioned in the official explanation of sensitive data, but they tended to feel a higher degree of sensitivity regarding financial-related personal data, which were not ordinarily considered sensitive data.

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CAN THE EU WIN THE PEACE IN GEORGIA? Nicu Popescu, Mark Leonard and Andrew Wilson

CAN THE EU WIN THE PEACE IN GEORGIA? Nicu Popescu, Mark Leonard and Andrew Wilson

Since then, Georgia’s strategy had appeared to have changed. Georgia spoke of ending the isolation of Abkhazia and South Ossetia but hardly meant it. Road blocks and customs checks were used to make life difficult for South Ossetians, while Georgia projected the image of an increasingly prosperous country rapidly advancing towards greater wealth, democracy and Euro-Atlantic integration. Part of this strategy was based on an attempt to divide and rule the Ossetians by setting up an alternative pro-Georgian South Ossetian administration. Georgia achieved a major coup when it secured the defection of Dmitri Sanakoyev, a former South Ossetian combatant, defence minister and interim prime-minister of the secessionist region. Tbilisi immediately recognised him as the legitimate authority in South Ossetia. With huge Georgian financial support, the Sanakoyev administration started to build discotheques, supermarkets, cinemas and football pitches just a few hundred metres from the South Ossetian capital Tskhinvali which had seen little if any reconstruction since the war in the early 90s.

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