13 May 2025 – Serbia
Antonio Costa, President of the European Council, stated on 13 May during a visit to Serbia: “The accession process is based on building trust. Many have lost trust in it, but I have come to personally assure you that Serbia’s future lies in the EU. The ball is in your court. Please, let’s not waste time, because the future will not wait.” President Vučić responded in his own style: „I only serve the citizens, not anyone else,” but then diplomatically measured: „Serbia’s political will is to accelerate its integration. To do its job…Serbia in the European Union is our path and our goal.”. However, the ball is not only „in Serbia’s court”. Ana Brnabić noted a day earlier at the conference of heads of parliaments in Budapest: „The future of Europe must be shaped not only in decision-making centers, Brussels or Strasbourg, but also in places where European values are in the everyday lives of citizens.” So, the “ball” is also on the EU’s “field”. This is formulated in “Orbanian style” by Hungarian Prime Minister Viktor Orban regarding the issue of Ukraine’s accession to the EU: “The mentality of the Western world is changing and Europeans have to respond to this process, and Europe is unprepared. It’s as if we wanted to solve the problems of the next decade with the answers of the previous decade, but the old truths no longer work, the world has changed, and we, Europeans, have failed to follow suit.“
Everyone has their own business. And Serbia’s business in the coming period is to undertake certain legal reforms that will strengthen the democratic rule of law, not only on paper. There will be changes to media laws and the law on the voter list, but it is also necessary to launch a broad social dialogue on constitutional reforms. Some are part of the so-called „EU package”, and some are important for improving the internal functioning of the state.
On its European path, Serbia has already made serious and systemic changes to its Constitution. These are constitutional changes to the part on the judiciary, confirmed in a referendum in 2022, which normatively strengthened the guarantees of the independence of the judiciary and the independence of the public prosecutor’s office. In recent weeks, it has been heard that these amendments have taken the judiciary away from the state. The judiciary, at least nominally, is separated from politics, but not from the state. It will, however, take time for the new judicial system to fully come to life. Two independent state bodies, the High Judicial Council and the High Prosecutorial Council, would contribute significantly to this if they became more visible and acted consistently from a well-argued professional position.
The next step in fulfilling the “European agenda” will be to amend the Constitution in the part relating to the constitutional judiciary. The latest Progress Report on Serbia stated: “No steps have been taken to reform the Constitutional Court. In particular, to introduce a qualified majority with an anti-deadlock mechanism for the election of judges by the parliament“. This means that a two-thirds majority is also required for the election of prominent lawyers to the two judicial councils and for the election of prominent lawyers to the Constitutional Court. This change should also be made for the logic of constitutional unity – there is no reason for prominent lawyers to be elected to the judicial councils by a larger majority than their colleagues in the Constitutional Court. This is also important so that judges elected by the National Assembly and candidates proposed by it for election as President of the Republic have legitimacy that rests on a broader consensus, i.e. on the support of the parliamentary majority and at least part of the parliamentary opposition. This amendment to the Constitution, however, will certainly have to wait for the election of constitutional judges, which must be conducted by December of this year, when the term of office of the judges elected in 2016 will expire.
Considering the long-standing suggestions of the Venice Commission and ODIHR, it would be appropriate to remove from the Constitution Art. 102, paragraph 2, which is not in accordance with the principle of a free mandate of a member of parliament, because it ties the mandate to the party from whose list the member of parliament was elected. The procedure for amending the Constitution is too complex. Two-thirds of constitutional provisions are changed through a mandatory referendum, instead of this most demanding procedure being applied only to changes to basic constitutional norms, those that relate to constitutional principles. Other provisions should also be reviewed, especially those concerning: the relationship between international and national sources of law; the insufficient harmonisation of the direct election of the President of the Republic, his democratic legitimacy, on the one hand, and formal constitutional powers, on the other hand; constitutional „favorability” proportional to the majority or mixed electoral system; local self-government, which is based on the rarely applied principle of single-level and monotypic local self-government units at the European level, etc. All of the above provisions, except for the integrative clause, which concerns the entrustment of certain state powers to EU institutions, could remain the same after Serbia’s accession to the EU. However, they do, at least indirectly, concern normative improvements in democracy. They are also related to the greater legitimacy of elections, the authority of parliament and the strengthening of its control function, the strengthening of local democracy, but also to the mitigation of the impression of the omnipotence of the directly elected President of the Republic, whose constitutional authority to „express state unity” is based on the assumption of the neutrality of the presidential function (Joint Opinion of the Venice Commission and ODIHR, 2022). These constitutional changes would also contribute to a more complete fulfillment of the basic requirements of democracy (Cluster 1: Fundamentals of the accession process).
Although the last summit of the European Political Community in Tirana sent a new-old message that “Europe is more willing to enlarge than it was before”, two crucial questions remain. The first is whether the EU has the capacity to make enlargement a strategic and identity issue, and not solely a matter of implementing a policy of conditionality? Secondly, can Serbia join the EU without resolving the final status of Kosovo and Metohija, or can a holistic approach be applied to the „normalization of relations between Belgrade and Pristina”, in the vocabulary of European diplomacy, so that the entire process is observed, and not just one part, namely the one that is an integral part of Serbia according to UN Security Council Resolution 1244 and the Serbian Constitution? Future changes to the Constitution will also depend on a significantly different approach to answering both questions. In any case, the most important changes related to the preservation of national identity require serious consideration and participation by democratic forces that value national and state sovereignty over party loyalty, all those who want to see a patriotic legal rather than party political state.
The text is a contribution to the international project „EU Enlargement and Successful Integration” of the Central European Academy and the Central European Professors’ Network
