LESSONS LEARNED FROM IPA I INTERVENTIONS IN ALBANIA

JUSTICE REFORM AND THE SHADOW OF THE EXECUTIVE: THE NEW ROLE OF THE MINISTRY OF JUSTICE IN THE JUDICIAL GOVERNANCE IN ALBANIA

THE IMPORTANCE OF NATURE CONSERVATION IN THE EU INTEGRATION PROCESS

THE ROLE AND IMPORTANCE OF ALBANIAN LEGAL AND INSTITUTIONAL FRAMEWORK IN GUARANTYING CONSUMERS’ FOOD SAFETY

‘THE HURDLE RACE’ TO EU MEMBERSHIP: IS ALBANIA A LAGGARD AND WHY? Published by: Friedrich-Ebert-Stiftung Office Tirana Rr. Abdi Toptani Torre Drin, Kati i 3-të Kutia Postare 1418 Tirane, ALBANIA

The opinions, findings, conclusions and recommendations expressed in this publishing do not necessarily represent those of the Foundations.

This publication cannot be used for commercial purposes without a prior written approval by the Foundation.

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HUB Monitor is one of the four pillars of the EU experienced during its implementation. The Page | 2 Policy Hub activities and its scope is to closely second policy brief focus on the justice reforms monitor EU integration process and the and the changing role of the executive. It institutions involved, focusing primarily on portrays the shifts of competence toward the inter-institutional coordination among new judicial governance bodies, its expected domestic governmental institutional bodies role towards them and the challenges of inter- and their legal documents and reports. The institutional cooperation, comparing it with HUB Monitor issue briefs draws empirical similar regional practices in Serbia and in evidence from legal documents and regular Montenegro. The third policy brief focus on the reports issued by the relevant institutions and environmental policy sector and the challenges the monitoring indicators abide by that Albania is facing in the implementation of methodological guidelines which include but the acquis for nature and biodiversity are not limited to the enacted regulatory conservation providing recommendations in and/or legislative acts; the activities performed order to avoid every potential drawback to the (no. of meetings, action plans, reports, country’s EU integration process. The forth strategies to address EC Report shortcomings, policy brief analyze the legal and institutional etc.); the evolution stage of draft instruments; framework of food safety and its challenges to and the institutional and public scrutiny over alignment with EU acquis. We conclude this results achieved. series of policy briefs, with an overall Currently, EU Policy Hub members in assessment of Albania's progress toward EU cooperation with other experts and the support membership, both in terms of institutional of the Friedrich-Ebert-Stiftung and the Open relations and the degree of fulfilling the Society Foundation Albania, have prepare a European standards, arguing that Albania's series of issue briefs discussing not only the progress towards EU accession is not only institutional aspects of the process but also laggard but also limited, mainly due to the different policy sectors; presenting the current country's political polarization and its low shortcomings but also providing administrative capacity. recommendations to address the improvement You are kindly invited to read this Hub of the structures and the legal acts. Monitor Issue Briefs for more detailed In this Hub Monitor Issue we focus on the information and the concrete Instrument for Pre-accession Assistance and in recommendations we propose for each specific some policy sectors. The first policy brief issue. We hope that you will enjoy reading it provides a critical assessment to the and provide us with feedbacks for future Hub programming and implementation of IPA I Monitor Issue Briefs. funds in Albania, identifying key achievements, challenges and potential discrepancies Hub Monitor Team LESSONS LEARNED FROM IPA I INTERVENTIONS IN ALBANIA

INTRODUCTION BACKGROUND This policy brief aims to provide a critical Between 2007 and 2013, EU provided assessment to the programming and financial assistance to Albania under the implementation of IPA I funds in Albania, Instrument for Pre-Accession Assistance identifying key achievements, challenges and (IPA), which includes five components: (i) potential discrepancies experienced during transition assistance and institution building the implementation of IPA programmes in (TAIB), (ii) cross-border cooperation, (iii) Albania. Also, it will assess the preparation regional development, (iv) human resource, level of Albania’s public administration in and (v) regional development. Under the managing IPA funds, analysing the central status of the Potential Candidate Country, and local administration absorption capacity, Albania has benefited from IPA components I and provide for feasible alternatives to its and II, with a total allocation of enhancement, including here the approximately 594 million EUR. involvement of the CSOs in the process of As a result of IPA programming under IPA programming and implementation of IPA TAIB component, the Albanian Government funds. has signed the respective Financing In this regard, the Albanian Agreements per each programming year with administration should go in line with the the European Commission (EC), opening the recommendations of the European way for implementation of 101 national Commission evaluators and adapt these projects (see table 1), addressing the political recommendations to the specific conditions and economic criteria, European standards and structures in place gradually, by and regional cooperation. developing a standard approach to the IPA I support was intended to anticipate preparation of sector strategies including and prepare the Potential Candidate and content, scope and time period (with Candidate Countries in the Western Balkans indicative budget and action plan), practicing and Turkey for the ultimate management of the consultation process and quality control, Structural and Cohesion funds, once they to provide a coherent and comprehensive become Member States. It has been perspective of national priorities that can be provided in the bases of the coherence with used as a basis for IPA programming. the EU policies and in support to the alignment of the EU acquis.

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In case of Albania, TAIB projects were support for the priorities identified in selected in line with the priorities identified strategic documents, the opportunity to in the Multi-Annual Indicative Planning build on projects from previous programmes, Page | 4 Document (MIPD) and other EU and Albanian and the level of preparation and ownership strategic documents, after the analysis of the proposed projects are considered performed by the European Commission in during the selection of the projects. Eleven consultation with the Albanian authorities. forms of pre-accession assistance are used Elements such as the urgency and under this component as shown in table 2. sequencing of assistance required, the

Table 1: IPA national projects for the period 2007-2013 and indicative total allocations

IPA I programming No. of IPA IPA allocation in EUR Mln National and others allocations Total allocation year projects in EUR Mln (co-financing) in Mln EUR 2007 7 49.27 (34 Mln on infrastructure) 1.5 50.77 2008 24 60.92 (26.5 Mln on infrastructure) 6.2 67.17 2009 16 69.8 (37.1 Mln on infrastructure) 80.1 149.9 2010 10 83.20 (68.2 Mln on infrastructure) 129.3 212.51 2011 9 82.00 (60.5 Mln on infrastructure) 97.1 179.15 2012 16 81.64 (37.2 Mln on infrastructure) 15.2 96.84 2013 (centralized) 12 64.23 (22 Mln on infrastructure) 39.4 103.64 2013 (decentralized) 7 17.8 (7Mln on infrastructure) 6.9 24.7 Total 101 508.86 375.7 884.56 Source: Albania - financial assistance under IPA II, European Commission

Table 2: IPA Component 1 (TAIB) - Forms of assistance Forms of assistance Potential candidate Candidate countries countries Twining/twining light √ √ TAIEX √ √ Technical assistance √ √ Investment in Acquis √ √ Grant schemes √ √ Project preparation facility √ √ Finance facilities in cooperation with International Financial Institutions √ √ Financial contribution for the participation in the community programmes and agencies √ √ Assistance in form of budgetary support (in exceptional √ √ circumstances) Technical assistance facility for the reinforcement of the administrative capacity of the public √ √ administration and services Assistance to cover the costs of Community’s contribution to international missions, √ √ initiatives or organisations active in the interest of the beneficiary countries Support in economic and social cohesion, regional, human resources and rural development √ (IPA III, IV and V) in forms of investment support and grant schemes Source: IPA Programming Guide Vol. I

In Albania the implementation of IPA I funds, order to prepare project fiches, to create the with the exception of IPA 2013 programme, necessary linkage between line ministries was managed in a centralised mode by the and central institutions, and raise awareness Delegation of the European Union (EUD), on the importance of ownership of IPA which means that the procedures for management of funds. tendering, contracting and implementation IPA I funds were provided on the bases of of the projects were monitored and institutional needs/priorities, which were controlled by EUD/EC structures. While the included in the strategic documents, such as Albanian line ministries and central MIPD and National Strategy for Development institutions (beneficiary institutions), IPA and Integration 20072013. The programing National Coordinator and Prime Minister’s process usually was very long, at about one Office were involved mainly in the year and a half, from the identification of programming phase of IPA TAIB, by priorities until the approval of the Financing prioritising the projects and drafting the Agreement by the Council of Ministers, and project proposals in cooperation with the EU NIPAC (National IPA Coordinator) signature, Delegation task managers. For IPA 2013 which opened the way for further programme, it was decided that part of the procedures of implementation of the projects will be managed in a decentralised projects. mode, giving the possibility to Albanian Under IPA TAIB and CBC components, EU institutions to manage the implementation of funds have addressed the Albanian priorities 7 projects, selected out of 19 projects in total with the horizontal and other supporting under this Programme. programmes, such as IPA Multi Beneficiary IPA funds, as the previous EU assistance Programmes, including the instrument called such as CARDS and PHARE programme, were Western Balkans Investment Framework and provided to the countries involved in the the support for the participation of Albania in Stabilisation and Association process in the the Community Programmes, for the form of grants, which includes mainly timeframe 2007-2013. All these instruments technical assistance and infrastructure supported Albania to reinforce regional projects. At the beginning of the process, the cooperation and/or to tackle needs or Albanian administration was not prepared to problems of a cross-border nature. programme by themselves IPA funds, and it For the period 2007 – 2013, under IPA is logical that it is required support for raising Multibeneficiary programmes, Albania capacities of the beneficiary institution staff together with other potential and candidate in line ministries. At the time IPA 2007 started countries, benefited from 106 projects, programming, the Albanian administration supporting EU integration, regional was facing different challenges in terms of cooperation, statistics, civil emergencies, implementing EU rules and requests. It was culture heritage, etc., and the beneficiary necessary to require technical assistance in was the central administration of the www.eupolicyhub.eu

countries in the region and Turkey. This kind skills of the labour force to market of instrument was totally managed by the expectations and increasing competitiveness European Commission, and the involvement of small and medium enterprises. Page | 6 of the beneficiaries was very low. For example, the construction of a new road connecting Hani i Hotit with Tamara, or SUCCESSFUL PROJECTS the completion of restoration works at the EU assistance has provided tangible support historical urban centres of Elbasan, Shkodra, for the socio-economic development of Berat e Korca, had a real and immediate Albania, in line with the national priorities. effect in improving the lives of people From the analytical point of view, affected by their implementation. Also, 14 investments in the infrastructure are tangible water supply installations or constructing 2 and visible in terms of benefits for the important by-passes, the Vlora and Albanian citizens and their sustainability. IPA Rrogozhina ones, and the port of Shengjin funds supported big projects in the field of have improved the country potential and the transport, environment, agriculture, justice direct effect on the economy. system, rural roads, etc. Also many The projects under IPA 2013 programme interventions of IPA funds addressed the are still in the implementation phase.

Table 3: A list of some successful projects of IPA I – Projects in infrastructure

Programing Title of the Project Total amount Beneficiary institutions Overall Positive Evaluation Why year Mln EUR (IPA (ROM successful? contribution) Missions) IPA 2007 PAMECA III 5,5 Albanian State Police, Impact (PPF report) Government Ministry of Interior and priority; the Prosecution Ownership authorities IPA 2007 Support to the Penitentiary 10 Ministry of Justice of Effectiveness Government Infrastructure the Republic of Albania priority IPA 2007 Improvement of Water 24 General Directorate of Impact in the community Government Supply and Sewerage Water Supply and where there are priority (located in Shkoder, Lezhe, Sewerage constructed the sewages Durres and Kavaja) IPA 2008 Reconstruction of the 8 Albanian Development Impact in the connection Government secondary and local roads. Fund of rural areas and regional priority IPA 2008 Construction of new VET 7 Ministry of Education Efficiency in the Government schools, rehabilitation of and Science Implementation of priority VET schools activities IPA 2009 Support to Sustainable and 5 Ministry of Tourism, Environmental impact Regional Integrated Development of Culture, Youth and priority Cultural and Historical Sports Heritage – Phase II Source: Albania - financial assistance under IPA II, European Commission

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Table 4: A list of some successful projects of IPA I – Projects in technical assistance

Programing Title of the Project Total Beneficiary Overall Positive Why successful? year amount institutions Evaluation (ROM Page | 7 Mln Missions) Euros IPA 2008 Strengthening of 3 General Directorate Impact in the Part of Albanian national metrology of Metrology (DPM) internal market Government infrastructure and in the Ministry of and free priorities achievement of Economy, Trade movement of international and Energy goods standards recognition IPA 2008 Support for the 1.5 Albanian Impact Government Albanian Competition Competition priority Authority and State Authority (ACA) and Aid Department the State Aid Department (within the Ministry of Economy, Trade and Energy IPA 2008 Support to Civil 1 Department of Impact Government Service Public priority Reform Administration, Ministry of Interior IPA 2009 Support to Anti- 1.5 General Prosecution Impact in the Government Money Laundering Office justice system priority and Financial Crime Investigations Structures IPA 2009 Population and 8 INSTAT Census realized Producing data on Housing Census, the population Albania 2011 and housing Government priority IPA 2009 Consolidation of the 3.5 Ministry of Impact on the Government food safety system in Agriculture, Food Legislation priority Albania and Consumer Protection IPA 2009 Project Preparation 1 Ministry of Impact in the Many civil Facility Integration and Line administration servants trained Ministries performance as Priority of the regards IPA Government due programming to need for increasing the capacities of the Albanian civil servants facing EU integration challenges Source: Albania - financial assistance under IPA II, European Commission

LESSONS LEARNED FROM IPA I Two main elements that are strongly related INTERVENTIONS with the ownership are: (i) existing of The experience with the so far management strategic documents in a given sector, and (ii) of IPA assistance in Albania, as well as commitment through co-financing from the findings of evaluations conducted by DG beneficiary side. It is essential for a project to Enlargement and the reports produced by address any of strategic priorities in a given the technical assistance projects, such as PPF sector as well as it is important that the (Project Preparation Facility), highlight that beneficiary ensure the ownership through planning, programming and implementation financial commitments (not more than 20%) of IPA assistance need to face many for a given project. The ownership will be challenges/problems and consider the increased if both these elements are in place. lessons learned from them. In the case of Albania, the main strategic For the 2007-2009 annual programmes documents considered during the (targeted by the above mentioned reports), prioritisation process are the National the main causes of the problems during Strategy for Development and Integration programming and implementation of IPA 2007 – 2013 and other sectorial strategies. projects are mainly: (i) lack of financial While the co-financing must be foreseen and resources in beneficiary institutions; (ii) include during the programming of medium- failure to meet project pre-conditions in term budget programme of the beneficiary. relation to premises and staff; (iii) poor Despite the political support of all the capacity to prepare technical documentation governments and other efforts made during (technical specifications, etc.); (iv) years, there is still a lack of ownership from restructuring of beneficiary institutions; (v) the Albanian beneficiary. lack of cooperation between line ministries and central institutions, etc. In this context, 2. The absorption capacity of the the lesson learned is related to the authorities needs to be ensured. ownership: IPA I assistance has been mainly delivered 1. The ownership by the beneficiary is for the institution building capacities, in essential for the effective targeting of terms of enforcement of structures, systems assistance and for achieving expected and human resources. Training has been results. delivered to fewer people than was initially This means that during the programming intended, but otherwise only in isolated and implementation of project activities, the cases the quality of outputs was disputed. In beneficiary should commit themselves most cases, technical solutions provided ensuring adequate resources during all under the IPA projects were considered of an phases of project management. appropriate quality and therefore IPA assistance can be considered effective. www.eupolicyhub.eu

As far as IPA TAIB Projects were written by beneficiaries had to ensure during the the civil servants, many factors have programming phase: threatened the sustainability of the  Not to have overlapping with the other Page | 9 programming process such as: donors intervention for the objective of the  Lack of well-trained human resources in line project. Synergy among the donor assistance ministries (due to the long procedures of is important; hiring of new civil servants and also staff  For projects containing works contracts, the turnover); final approval of Project Fiches will be subject  Lack of communication and coordination to the prior presentation of supporting within the central administration, especially feasibility studies; in cases when a project involves more than  Land property law missing, can create one beneficiary; problems for having construction permits;  Limited information by the higher level of  Local government have to ensure beneficiary institutions for the programing maintenance costs of the object financed by and implementation of IPA funds; IPA ;  Changes of government affected people who  To ensure the monitoring plan of the project, had been trained with EU support; in cooperation with the implementing  Lack of policies for motivating of the staff. agency; etc. Due to the difficulties of programming of IPA projects and also the requests of the internal 2. Particular attention must be paid to the market for project programmers, IPA staff in projects' readiness and maturity, which line ministries left public administration; will ensure the effective use of IPA  Lower involvement of other stakeholders, funds. Having a list of ready projects, such as civil society organizations and local which objectives are in line with EU government staff; priorities for Albania, will facilitate the  Not a clear job description dedicated only to process of selection of IPA projects. IPA programming. In many cases the experts Albania is still facing problems during the in the line ministries lack time to dedicate to implementation of IPA I projects, managed IPA project writing due to other task they under the centralised mode, for the sake of have to fulfil; etc. missing some of the preconditions above mentioned. Some of the projects such as As regards the implementation of the “Support for the alignment of Albanian activities of IPA projects, many factors have Statistics with EU standards (Census on jeopardised the process, including the Agriculture Holdings) - IPA 2007 – 2009”, preconditions to be met before signing the “Construction of pre-trial detention centre Financial Agreement. In case of and prison in Shkodra”- IPA 2011, “The infrastructure projects, despite the division in Expansion of Waste Water Treatment Plant, LOT (fragmented contracts), the Velipoja, phase III - IPA 2011”, and many www.eupolicyhub.eu

others, are facing difficulties due to the lack training and dissemination activities, which of commitment by the local government address basic and justified needs but do not structures. In this context, it is necessary to lead to a concrete or visible impact. The Page | 10 increase the capacities of the local presence of TACSO has had a positive effect government units, responsible for project on CSOs, which are increasingly aware of programing/ implementation. One successful available EU funding modalities. project, financed by IPA 2009 and extended CSOs active today in Albania have come a until 2016 – Project Preparation Facility, has long way. Until a few years ago, civil society started the process of training the local was barely evolving, due to lack of funding, government offices on IPA issues, in restricted level of activity, and increasingly collaboration with Albanian School for Public weak profiling of CSOs outside Tirana. CSOs Administration. have demonstrated that they can play a small but active role in achieving democratic CIVIL SOCIETY GRANTS objectives. The legal and regulatory context The aim of IPA I funds was mainly to support is evolving, even if most remains to be done the Albanian administration to perform to launch an adequate fiscal regime for CSOs better in the process of integration to EU. in the country. The process should have involved central and With the new rules of the European local administration as well as judiciary, Commission for IPA II (2014 -2020) media and civil society organisations. The allocations, we can mention that a special coordination between all the stakeholders, emphasis is provided to the policy dialogue, including CSOs, remains a challenge due to at difference from IPA I (e.g. Serbia and low involvement and lack of communication Albania). tools. Intensified policy dialogue is mostly Albania’s organisational network evident within the various national dedicated to CSOs is triangular, with three administrations involved in the preparation main stakeholders participating in the of the support – as effective cooperation and programming and implementation of EU communication is a requirement already support to civil society, the national Civil during the planning phase – but also between Society Support Agency (CSSA, 2009), the the EC and the national stakeholders. EUD and the TACSO country office. The EUD Starting from November 2015, the EU is and TACSO collaborate closely. CSO donor applying the sub-granting scheme for the civil dependency is significantly stronger in society organizations. In this context, more Albania than in neighbouring countries. CSOs than 70% of the amount should go to local are by law classified as associations, CSOs in the form of subgrants ranging from foundations and centres. 5,000 to 50,000 EUR. EU support to CSOs in Albania is The level of involvement of the Albanian predominantly focused on pilot, networking, CSOs in the process of programming of IPA II www.eupolicyhub.eu

has increased. In this framework, there are dedicated to this process such as Ministry of already organised consultation meetings Finance/Central Financing and Contracting with the CSOs and other donors operating in Unit, National fund, National Authorising Page | 11 Albania in the framework of programming of Officer, Ministry of European Integration/ IPA 2016, IPA 2017 and IPA 2018. National IPA coordinator and all IPA structures in line ministries. The legal CONCLUSIONS AND RECOMMENDATIONS framework for the establishment and The Instrument of Pre-Accession has been functioning of these structures is in place, but the most important tool that EU used to further enforcement and better coordination provide financial assistance to accession between them is needed. countries including Albania. Around 510 The link between EC assistance and sector million EUR are given to support the Albanian strategies and action plans of the Albanian institutions in a period of seven years (2007- institutions needs to be ensured. The aim is 2013). Despite remarkable progress of the to design assistance in relation to Albanian Albanian structures for programming and strategic plans, which in turn should address implementing IPA funds, further efforts need the requirements of the EU integration to be addressed in phases such as: process. Better and realistic strategies must programming and budget preparation, as be in place, in terms of costing and well implementing, monitoring and identification of measurable and achievable evaluation. Overall, the intended efficiency indicators, aiming at fulfilment of the gains still have to materialize. Evidence from conditions for better programming the IPA I shows that the introduction of the instrument of budget support. The link with indirect management mode with the medium term budget plan is also essential to beneficiary country is a mixed blessing. It ensure ownership over the process. offers improved ownership of the Better coordination and involvement of programme among beneficiaries but overall all stakeholders, including civil society efficiency invariably suffers in most cases organisations, is a key factor for success compared to direct management of the during programming, implementation and funds. monitoring of IPA funds.1 Clear guidelines In this framework, it is necessary to and inter-institutional coordination must be improve the capacities of the structures in place.

1 Neritan Totozani (2016): “Challenges of the indirect Increase the level of knowledge about IPA and the management of EU funds in Albania”, p. 179. “It is very ways in which the country can benefit from such a important to keep the administrative capacity trained financial instrument. IPA rules and procedures are as a preparation for the next levels and funds toward complex and at times difficult to interpret or apply. The the EU integration. Europe has to find common insufficiency of information affects parties in both the solutions to the global challenges in partnership with central and local government circles. Thus, there is a national, regional and local levels. They impact directly need to disseminate the information among on regional and local communities and they require stakeholders of this process”. that public and private partners work together. www.eupolicyhub.eu

We need to communicate! The Albanian explaining and discussing the costs and Government and beneficiary institutions can benefits of the process. exchange information on EU integration, Europe is made and it belongs to the Page | 12 including IPA programming with civil people living in it! Do Albanian people want societies and municipalities, by introducing, to live better?

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JUSTICE REFORM AND THE SHADOW OF THE EXECUTIVE: THE NEW ROLE OF THE MINISTRY OF JUSTICE IN THE JUDICIAL Page | 13 GOVERNANCE IN ALBANIA

INTRODUCTION experts were supported by a Technical The redesign of the judiciary architecture in Secretariat, composed of specialists/advisors Albania, conceived by a broad range of of the Legal Department of the Assembly, actors, was one of the main pillars of the Ministry of Justice, and experienced lawyers comprehensive justice reform in Albania of other state institutions (point VIII of the (hereinafter the Reform), pursued since 2014 decision)2. This process has been guided and still ongoing. The aim of the Reform is to twice by means of opinions of the Venice reinforce the independence, efficiency and Commission.3 accountability of the judiciary as one of the The constitutional amendments were top priorities for opening Albania’s EU followed by a comprehensive package of accession negotiations. A prerequisite for the organic laws, 7 out of which were considered implementation of the Reform was the a priority. Judicial governance was judged to adoption of the Constitutional Amendments be a matter of absolute priority and belonged that were approved in July 2016, followed by to the first package of laws passed, the main 27 laws. ones in this regard being the law on The Reform was led under the auspices of Governance Institutions of the Justice System the Assembly. By means of decision no. and the law on the organisation of the 96/2014, the Assembly established the ad- Judicial Power, approved respectively in hoc Parliamentary Committee, which was November 2016 and October 2016. The especially depicted for the purpose of the establishment of the new governing bodies Reform. The decision provides in point VII of the judiciary, such as the High Judicial that the high-level Albanian and international experts (EU experts from EURALIUS and US experts through USAID/OPDAT) will perform near this Committee. The activities of the

2 The structure of the actors of the justice reform: revised draft constitutional amendments on the http://reformanedrejtesi.al/sites/default/files/organi Judiciary (15 January 2016) and ii) for the gramasekretariati_teknik.jpg. Constitutional Court on the Law on the Transitional 3 Two opinions were offered by the Venice Re-evaluation of Judges and Prosecutors (The Vetting Commission during this process, with regards to i) the Law) on December 2016. www.eupolicyhub.eu

Council4, the High Prosecutorial Council5, the challenges in matters of governance of the High Justice Inspector6, which were de jure judiciary in relation to the executive. provisioned in the Constitution and in the Page | 14 organic laws mentioned above, has started to LEGAL FRAMEWORK OVERVIEW: SHIFT OF take shape de facto only as of June 2017. Its COMPETENCES OF THE MINISTRY OF JUSTICE prolonged set-up process is being monitored The aim of the institutional part of the reform by the International Monitoring Operation is to guarantee a three-dimensional (IMO). IMO7 became operational in February independence of the judiciary: structural, 2017 and it engages international judges and financial and substantial. prosecutors in the role of observers Composition and competence: no (European and US experts, from the representative of the executive in the High Department of State and from the Justice Judicial Council – (HJC) body. Department). This process of designing, The set-up of the new governing bodies deciding on and monitoring of the reform in of the judiciary, the key one being the HJC the judiciary aimed to distance the newly that substitutes the existing High Council of created judicial governing bodies from Justice (HCJ), introduced comprehensive political influence while being inclusive. changes in the composition and In the midst of all these significant competences of the governing body of the changes, this brief will focus on the Ministry judiciary. HJC has gained substantial of Justice (MoJ), portraying an overview of competences in comparison to the repealed the changing role of the executive body, in High Council of Justice, including in its light of the new structures of the judicial scrutiny all levels of courts, the High Court as governance institutions. It will describe the well (a novelty of the reform). Taking into shifts of competence toward the new judicial account this fact, the composition of the HJC governance bodies, its expected role towards has been more carefully designed, reducing them and the challenges of inter-institutional the bonds of the judiciary with the legislative cooperation. The stagnation of the political and the executive. The composition and situation will be brought to attention as a election procedure of the HJC members factor influencing the current situation of indicates a will to create a strong self- stagnation and instability of the justice regulated, unbiased body. Different from the bodies. The analysis will also provide for a former structure which was composed only brief comparative analysis of the regional of judges, the new format opts for a balanced practices, particularly in Serbia and in composition, including lay members that Montenegro, concerning the same represent the interests of citizens (civil

4 Article 147/a of the Constitution of Albania, as 6 Article 147/d of the Constitution of Albania, as approved on 21.06.2016. approved on 21.06.2016. 5 Article 149 of the Constitution of Albania, as 7 Article B of the Constitution Annex. approved on 21.06.2016. www.eupolicyhub.eu

society), and of the legal community (bar umbrella of the HJC, responsible not only for association and academia)8. For the first time the drafting, proposing and implementation since the creation of the judicial bodies, the of its annual budget (in cooperation with the Page | 15 Minister of Justice is not an ex officio member Ministry of Justice and the Ministry of in the HJC and the executive is not Finances), but also in charge of managing the represented in this body, which also means fund raising process for the management of that the executive has no say in matters of the courts (up to the level allowed by the appointing, evaluating, promoting, law), as well as assist and monitor the budget transferring and deciding on the disciplinary proposals of the courts of all levels (Article 96 proceedings of judges. However, the issue of of the Law on Justice Governance check and balance between the judicial Institutions). Since the budget will also be bodies and the Ministry of Justice remains substantially higher, internal control units complex considering that according to the and external controls will be introduced, constitution and the approved laws the which was not previously the case with the executive still preserves some competences, High Council of Justice, due to the low budget given that the Minister of Justice, although and the low level of the assessed risk. The without a voting right, still sits in the amendments to Law no. 8678, date 14.5.2001 meetings of the HJC concerning the budget “On the Organization and Functioning of the of the judiciary and strategic planning (Article Ministry of Justice”, adopted on 30 March 147/ a of the Constitution). 2017 and entered into force on 6 May 2017, Financial independence and management reflect in Article 6 the changes in the independence: full budgetary independence management role of the MoJ. The statistical accorded to HJC. administration of the judiciary, the Most powers of judicial governance, relationship of the judiciary to the public and formerly vested with the Ministry of Justice, media, the management of the judicial were transferred to the High Judicial Council administration, the human resources, the in order to increase efficiency and reporting process in front of the public and accountability in the exercise of these the Assembly, the administration of the powers. The Office of the Administration of physical infrastructure and safety, as well as the Judicial Budget, an independent body to- the measurement of the performance of date, will fall under the new, encompassing courts – all these actual responsibilities of the

8 Note: While the members’ number remains 11, out of society is chosen from at least three civil society which 6 are judges, the formula of composition of HJC organizations with the right to vote and in the case of changes in regards to the lay members: 2 members the lawyers, everyone with the required qualifications from academia, 1 from civil society and 2 from the bar can apply. The process is administered by the people’s associations. The two lay members coming from the Advocate and the Assembly. The Minister of Justice or academia (pedagogues of the Law Faculties or School persons authorized by him may observe the voting of Magistrates) are chosen from the academic bodies process without prior authorization. with the right to vote, the one lay member of the civil www.eupolicyhub.eu

Ministry of Justice have passed to the High System Evaluation in 2015, in countries with Judicial Council. Only the management democratic traditions, such as Italy and information technology systems of the courts Germany, the MoJ is active in initiating Page | 16 is to be regulated by means of Decision of the disciplinary proceedings and court Council of Ministers. inspections, and this does not in itself violate On the disciplinary proceedings: The the principle of division of powers, but in the Ministry of Justice is not anymore in charge of practice this always needs to be leading court inspections and at the same contextualized. The overlap of competences time it does not hold the exclusiveness of regarding inspection is not a best practice in initiating the disciplinary proceedings the context of an actual problematic towards the alleged misconducts of judges. judiciary, instead the solution of an external The Venice Commission, in its amicus independent monitoring body is more curiae opinion on the draft constitutional appropriate. amendments specifically addressed the Many challenges to the foreseen disciplinary proceedings and recommended establishment of the new Councils: HJC and total independence of the High Justice HPC. Inspector from the Ministry of Justice. Their setup was provided in the Parallel inspections were led to-date by the Constitution (Article 179 par. 5) to happen no Inspection Unit in the Ministry of Justice and later than 8 months after the entry into force the Inspectorate under the umbrella of the of the Constitution, i.e. no later than 12 April High Council of Justice based on a 2017. Until mid- June 2017 the process was Memorandum of Understanding between still blocked by the stagnation of the vetting the Ministry of Justice and the High Council process and the lack of political will to settle of Justice in 2012. The Inspectorate of the it as a priority. Furthermore, the decision of High Council of Justice was in charge of 1/5th of the Members of the National leading the investigations on alleged Assembly to address the Constitutional Court misconducts following the MoJ Inspections. on the constitutionality of several articles of With the new changes in legislation, the the law “On the status of judges” and the law overlapping of inspections has been avoided “On the governing bodies of the judiciary” by concentrating these competences in the has resulted in the delay of the normal High Justice Inspector, an independent implementation of this law. Following their constitutional and monocratic body, claims, on 14 April 2017 the Constitutional regulated by law that is responsible for the Court has abrogated certain articles of the disciplinary liability of judges and prosecutors law no. 115/2016 “On governance of all levels (High Court included). As institutions of the justice system” creating a rightfully stated by the MoJ in its Justice legal vacuum.9 The missing provisions will be

9 Articles repealed: 5, 61, 103, 159, 169 of the Law “On the governing bodies of the judiciary”. www.eupolicyhub.eu

addressed when the new Parliament Fundamental rights, namely Serbia and approves the respective changes of the Montenegro, will presumably help compare above-mentioned laws, which is expected to and understand the position of Albania at Page | 17 happen in September 2017. A second claim present with regards to common challenges was deposited in the Constitutional Court on on the rule of law. 1 June 2017 by the Union of Judges on the Serbia did not undergo a comprehensive unconstitutionality of certain provisions of reform of the judiciary, even though the the vetting law and the law on justice accession negotiations were launched in governance, the last one regarding the January 2014, opening chapter 23 (Judiciary criteria of professional experience of the and Human Rights). The country is still in the members-to-be of the HJC and HPC, as well process of consolidating the reforms aiming as the role of the lay members in choosing to tackle the independence, accountability the heads of these institutions. This is a and the efficiency of the judiciary by means second challenge in the establishment of the of law amendments, since the Constitution Councils as originally foreseen. has not been changed during this process. Meanwhile, the administrative staff of Challenges concerning undue political the institutions that are to be merged and influence in the governance of the judiciary transformed are in a period of stagnation, continue to exist. The High Judicial Council with no clear perspective on the working and the State Prosecutorial Council are going procedure, on the organizational structure through transitional periods towards the and on the survival of the unit they belong to. consolidation of their independence, while The situation has contributed to an uncertain still keeping the Ministry of Justice as a key environment and the paralysis of the justice player in judicial governance. The institutions. composition of the 11 members of the HJC includes the President of the Cassation Court, EXPERIENCES FROM THE REGION the Minister of Justice, one representative of The Balkan countries share a turbulent past the Parliament as ex officio members, and of totalitarian regimes, a present made of the 8 remaining members, 6 judges and two fragile transition democracies, the lawyers elected by the National Assembly.10 perspective of EU membership promised in This body holds all competences regarding Thessaloniki and the pressure of the proposals (to the Assembly), conditionality to improve their systems in appointment, promotion and release of order to reach the European standards. The judges and Presidents of Courts. example of two Balkan states that already On the other hand, there are many other opened the accession negotiations with competencies which have remained chapter 23, on the Judiciary and exclusively under the power of the Ministry

10 Article 153 of the Constitution of Serbia. www.eupolicyhub.eu

of Justice, such as court security, proposals to the Councils in January 2017. Based on the on the amount and structure of budgetary report on the implementation of the Action funding and its distribution to courts. Plan on Chapter 23 (Judiciary and Page | 18 Nevertheless, the Councils do share some Fundamental Rights) for the first quarter of responsibility for court and prosecution 2017, the implementation of the provisions budgets with the Ministry of Justice, the latter of the law on the organization of the courts, being responsible for court staff, expert covering the transfer of jurisdiction on: assistants, infrastructure and investments. supervision of courts’ work, supervision over The specific circumstances of the judicial the results of the work of courts, collecting of reform process in Serbia have also statistical data and analysis of statistical data contributed to the empowerment of the role from the Ministry of Justice to the High of the Minister of Justice in driving forward Judicial Council is still in progress. these reforms. After a process of dismissal of Constitutional amendments have been most of the judges from the High Council of recommended by the Venice Commission in Justice in an attempt to save the image of the order to separate the Councils from political widely perceived corrupt judiciary, the influence (mainly from the Assembly). This dismissed judges appealed to the same request came from the European Constitutional Court, although most of their Commission in the frame of Chapter 23 of the claims were to be reconsidered by the same acquis (Judiciary and Human Rights) to bring organ that dismissed them: the HJC. In its the recruitment and judicial career 2013 Opinion on the draft amendments to management procedures in line with laws on the judiciary of Serbia, the Venice European Standards with the advancement Commission urged the Ministry of Justice of of the accession negotiations. Serbia to take stock of the situation in the The general impression, also because of country and take an active role in developing scandals involving the judiciary and the a clear concept on what the courts’ network executive, remains that political influence on of Serbia should look like, since this task the judiciary remains high, that judges are could not be carried out by the HJC on its still widely scared and corrupt, and that the own, due to the problems resulting from the executive aims to limit judicial independence. unsuccessful reappointment procedure. At A comprehensive constitutional-based the time, the Venice Commission already reform would be one side of the coin, the stated that the reform process should be other one would be a general will to fight measured and well prepared so as to be against self-serving elites in the judiciary and successful in achieving a right balance in the executive itself. between speed and quality. The executive Montenegro. The Constitutional was too much of a key player to be left aside. amendments in July 2013 followed the The full administration of the judicial opening of EU accession negotiations, budget was to be transferred from the MoJ granted in 2012 by the European Council. The www.eupolicyhub.eu

amendments were preceded by a not been fully implemented, but in general Government determined to pursue the Montenegro has been perceived from the EU integration road by reviewing the Action Plan as a country willing to drive on reforms and Page | 19 for the Reform of the Judiciary, introducing to strike an independence-accountability new deadlines and implementing the balance between the executive and the unfinished measures. The changes judiciary that allows for a democracy to work. intervened across the entire justice system and also targeted judicial independence by REFLECTIONS reshaping the Judicial Council, considered by It is clear now to the EU, that with regards to the European Commission broadly in line the judicial reforms as a basis for the rule of with European standards. The continuously law establishment in Western Balkans adopted package of laws, especially the Law countries, they should be done on Courts and the Law on the Judicial Council comprehensively, fully, and led not only aimed to reduce political influence from the under the pressure of conditionality and the legislative and executive by adding desire to enter the EU club, but also by transparency elements, thresholds and means of technical assistance, peer-to-peer specified criteria for the appointment of guide and a real political will to advance judges and prosecutors. According to the quickly. Constitutional amendments of 2013, even if The set-up of a whole comprehensive the Minister in charge of Judicial Affairs is legal framework, starting with the part of the composition of this body Constitution and continuing with packages of (balanced 5:5 between judges and other organic laws is an approach that results to be members, seen as a good formula for more efficient and less time-consuming than inclusion)11 he/she shall not vote in the several prolonged by-passes that address an disciplinary proceedings related to the issue without improving the system as a accountability of judges12. Besides the whole (the case of the independence of the appointment, career, evaluation, disciplinary judiciary in Serbia). A various composition of liability and release of judges, the Judicial the governing bodies of the judiciary is crucial Council is also responsible for the in balancing various interests and management of the judicial system, of the perspectives within this body. The question is information system, data records, etc.13 always about striking the right balance The concerns regarding political between the de-politicization of the judiciary influence in the judiciary still persist because and the trend of judicializing politics, the the comprehensive judiciary reform has still latter being the over-influence that the

11 Amendment VIII of the Constitution of Montenegro. organization), Prof. Dr. Mladen Vukčević, Miloš – 12 Amendment IX of the Constitution of Montenegro. Bošković, Law & Justice Review, Vol. 7, no. 13, 13 For more see: Judicial system in Montenegro December 2016. (historical development, basic principles and www.eupolicyhub.eu

judiciary might exercise if it is way too The impetus always defines the reform. independent and not accountable. Financial During all judicial reforms, in the Western and management independence of the Balkan countries the role of the Ministry of Page | 20 judiciary is a crucial pre-condition as well for Justice has been expected to shrink. Strong a substantial independence, otherwise the self-regulated judicial governing bodies were structural independence would be void of created in countries with a past of a strong, substance. influential executive in the judiciary, as a The involvement of many actors is a must, counter-action to their past, as is the case in including the executive, as well as the will of continental Europe. The reform of the the parties to move forward. Transitions judicial governing bodies was made in the through substantial reforms, especially in shadow of a past with an interfering fragile democracies, under the pressure of executive and between the institutions there conditionality, always tend to unbalance the is an atmosphere of mistrust. But, if the system, even if the latter is compromised, challenge of an independent judiciary will be until a new institutional balance is overcome as foreseen in the best scenarios in established through practice. In the best Albania, what will matter the most is the case, the establishment of a good practice is inter-institutional relationships. The quality the final aim of a reform. In the case of of justice and of the judiciary relies very much Albania, the process has technically and on common draft strategies, on legal acts procedurally been correct, involving every concerning the judiciary, on the budget, possible actor but it is the political will and management issues and on the sharing of the individuals that have the choice to bridge information. When the MoJ will be perceived the gaps which are still potentially able to by the newly established bodies as not only a compromise the process. On the issue of the structure from which to separate from but will of the involved parties, it is precisely this rather as a crucial partner for common element that makes the difference between challenges, then the judicial reform will have Serbia and Montenegro, the first one lacking completed its aim in the institutional level. it, while the second one being on the right track to achieving this successfully.

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THE IMPORTANCE OF NATURE CONSERVATION IN THE EU INTEGRATION PROCESS Page | 21

INTRODUCTION problems in the implementation of the Albania holds an important part of Europe’s acquis for nature and biodiversity natural heritage and represents one of the conservation in Albania and to emphasize the first countries in the continent with the respective recommendations, in order to highest portion of key biodiversity areas avoid every potential drawback to the compared to the total surface of the country. country’s integration process in the Nature conservation, despite not receiving European Union. the required attention among the overall integration priorities, represents an NATURAL HERITAGE OF ALBANIA AND ITS important condition and obligation for the IMPORTANCE FOR THE EUROPEAN UNION country to fulfil within the frame of the EU Albania represents a very rich country in integration process. In the field of nature and terms of biodiversity, considering its small biodiversity, Albania is obliged to identify and surface. This is due to diverse relief, natural protect its natural heritage with high landscapes and habitats. It is reported that conservation interest for the European Albania counts a total number of 7233 plant Union, through identifying the potential taxon, representing 32% of the floristic Natura 2000 sites, based on the strict diversity of Europe. In addition, Albania holds implementation of the two European as well, a very rich fauna diversity with a directives, respectively Birds Directive and confirmed number of over 5450 species of Habitats Directive. The accomplishment of different groups, among which around 110 such obligation includes two main aspects, species are rare and with high conservation namely the approximation of the national interest at global level. legislation for nature and biodiversity For conservation of country’s biodiversity conservation with the European Union and natural heritage, Albania has established legislation and related enforcement. its National Network of Protected Areas, This policy brief aims to emphasise the which includes a number of 800 protected importance of conservation and sustainable areas (including here the monuments of management of the natural heritage of nature), occupying around 16% of the total Albania, based on the standards and the territory of the country. directives of the European Union, as an One part of the National Network of obligation within the integration process. In Protected Areas and also considerable addition, the aim is to highlight the existing number of other high nature value www.eupolicyhub.eu

ecosystems, are part of different obligations sourcing from it. Emerald international ecological networks. Prespa Network is the equivalent network of Lakes, Karavasta Lagoon, Butrinti Lake - Çuka protected areas Natura 2000, that European Page | 22 Channel - Stillo Cape and Skader Lake – Buna Union has established, as well, to fulfil the River are the four Albanian wetlands of requirements of the Bern Convection. international importance recognized by the RAMSAR Convention, ratified by Albania in Map 1: Areas of High Nature Value in Albania year 1996. The transboundary area of Ohrid recognized at national and international level Lake and Prespa Lakes has received by UNESCO the status of the Biosphere Reserve. Likewise, the beach forests of Gashi River, in the region of Kukës, and the beach forests of Rrajca (central part of Shebenik-Jabllanicë National Park) are inscribed in UNESCO’s World Heritage List. Also, the transboundary areas along the ex-iron curtain of the communist times are included into the European Green Belt Network. Moreover, BirdLife International has recognized a number of 16 Important Bird Areas (IBA) in Albania which are recognized by the Albanian government and are lastly included in the new law for Protected Areas of Albania (Law 81/2017) as “Protected Areas of International Importance”. Furthermore, the Critical Ecosystem Partnership Fund (CEPF), currently one of the biggest international consortiums for nature conservation, through a scientific based and participatory approach has identified a number of 29 Key Biodiversity Areas (KBA) in Albania. Last but not least, Albania has an Emerald Network composed of 25 sites, approved by the Bern Convection in December 2012. The Source: Elaborated by the author Emerald Network, includes areas of Special Conservation Interest (ASCI), identified in the In the map above are given all the above- countries which have ratified the Bern mentioned surfaces or the areas of high Convention, in order to comply the nature values recognized at national and/or www.eupolicyhub.eu

international level.14 From the map, it can be of ‘Special Protection Areas’ (SPA). On the easily noticed that more than half of the other hand, the Habitats Directive aims at the country’s territory, exactly 53.4% (15,342 conservation of a high number of wild fauna Page | 23 km2) is recognized as Key Biodiversity Area by and flora species which are rare, endangered the CEPF and if adding to this figure the or endemic. This directive ensures also the difference of the remained surface out of the preservation of around 200 different habitat KBAs network, but within the other types. The implementation of the Habitats ecological networks (such as Emerald, Directive requires the identification and RAMSAR, IBA, National Network of Protected designation of Special Areas of Conservation Areas etc.) the surface goes to around 60% of (SAC). Special Protection Areas and Special the country’s total surface15. This figure Areas of Conservation compose the shows clearly that Albania is one of the top European Union Network of Protected Areas countries in Europe with the highest portion called Natura 2000. of the key biodiversity areas (recognized by Concerning the approximation of the national and international ecological national legislation on nature and networks), compared to the total surface of biodiversity conservation, in the document of the country. strategic policies for biodiversity conservation it is stated that Albania has STATE OF THE IMPLEMENTATION OF ACQUIS made a progress estimated at the level of COMMUNITARIAN FOR NATURE AND 85%. In addition, in January 2017, the BIODIVERSITY CONSERVATION IN ALBANIA Parliament of Albania approved the new Law AND THE RESPECTIVE CONCERNS on Protected Areas (No 81/2017), which In the frame of country’s integration process represents to a wide extent the into the European Union, in the field of approximation of the national legislation on environment protection and more nature and biodiversity conservation with specifically in the aspect of nature and EU’s acquis. This law dedicates a specific biodiversity conservation, Albania is obliged chapter (namely chapter V) to the protected to approximate its national legislation with areas of international importance and the European Union legislation through the particularly to Natura 2000 network of transposition of the EU Directives on Birds protected areas. and Habitats. The Birds Directive aims at the Based on the description above, in the conservation of wild species of birds and field of nature and biodiversity conservation, their habitats in the territory of the European it is understood that Albania has made Union through identification and designation significant progress in accomplishing one of

14 The map is prepared for this policy brief exploiting of the map are included within the boundaries of the the shape files of the respective areas. The areas areas which are reflected on the legend of the map. mentioned in the text but not reflected in the legend 15 The figure is calculated through GIS software through the shape files of the respective areas. www.eupolicyhub.eu

the main obligations, the one related with and Habitats Directives is getting approximation of the national legislation with underestimated, causing delay to this the legislation of the European Union. process and uncertainty on its successful Page | 24 However, what is the state of progress for the finalization. The main aim of the mentioned second obligation: that of the identification project, differently from what was and it is of the Natura 2000 sites in Albania? expected (identification of Natura 2000 Referring to the last report of the sites), is to strengthen the management of European Commission for Albania, within the protected areas in Albania through the 2017, it is expected the finalization of the implementation of the management plans. evaluation of five selected areas based on the Within this project, the attention is focused criteria of Birds and Habitats Directive. This only in one part of the national network of statement indicates that: firstly, the process the protected areas. of the identification of the sites in Albania The implementation of the Natura 2000 complying with the criteria from Birds and process requires the evaluation of the whole Habitats Directives, is at early stages; and territory of the country and not secondly, the time of the finalization of the concentrating the efforts only in the network complete list of the potential Natura 2000 of protected areas. The implementation of sites is far. Why? the right approach would have had enabled The Natura 2000 process requires a the identification in Albania of the sites of careful evaluation of the whole territory of high conservation interest for the European the country based on a solid scientific Union based on the Birds and Habitats approach. Actually, through a 3.5-years Directives. For example, as it is the case of project there are being assessed only five Drino valley situated in the region of selected areas. This assessment is being Gjirokastra and the Munella Mountain made in the framework of IPA 2013 project situated in the regions of Lezhë, Shkodër and entitled “Natura 2000 Protected Aras in Kukës. In the first area, along the pre- Albania”, which is being implemented since migration season happens a large gathering 2015. Even though the title gives the (around 2% of the global population) of a impression that the main aim of this project high conservation interest species at is the identification of potential Natura 2000 European level (listed in Annex I of the Birds sites in Albania, the real objective is almost Directive) the Lesser Kestrel (Falco completely different. This creates the naummani). On the other hand, the area of concern that the process of identifying the Munella Mountain is home for around 15 % Special Protection Areas and Special Areas of of the global population of the Balkan lynx Conservation based respectively on the Birds (Lynx lynx balcanicus)16. None of these areas

16 PPNEA (2017) Biodiversity Assessment of the Munella Mountain area and justification for its protection. Survey report. Not yet available online. www.eupolicyhub.eu

are part of the national network of protected evaluation? Definitively the answer for at areas of Albania, likewise there could be least the second question is “no”. other areas with such biodiversity values A second alternative for achieving the Page | 25 which are not yet identified. This is due to the desired objective is to ask for another IPA lack of data and the lack of the opportunities fund and implement a strict evaluation to collect data based on scientific methods. process. Again, two questions are raised also The IPA funds given to a potential here: (i) would it be feasible to receive candidate country for implementing the another fund, in a situation when Albania has Natura 2000 process represent a unique used once this opportunity; and (ii) if the opportunity for the benefiting country collect answer of the first question is “yes”, when data on the biodiversity components based this fund could be allocated again? From on strict scientific methodology in order to these two simple questions and from what is identify areas of high conservation interest. described above, the least concern felt is the The approach followed for the current delay in the implementation of the Natura implementation of the Natura 2000 process 2000 process in Albania and in addition the does not enables the achievement the uncertainty that this process is getting done respective aim. The identification and and will be done properly. preparation of the preliminary list of The successful implementation of the potential Natura 2000 sites stands as a Natura 2000 process, in terms of quality and second objective of this project. The time, represents one of the most important concerns raised up here are: when will the achievements for preservation and final list be prepared and how is this going to sustainable management of nature and be achieved (namely the identification of the biodiversity in Albania. The EU integration is Natura 2000 areas)? one of the first national priorities of the Taking into consideration that the above- country. Once Albania, identifies and mentioned IPA project is focused only in the proclaims the list of potential Natura 2000 national network of protected areas and the sites, then it is obliged within the integration rest of the territory remains uncovered, process to protect and manage these areas related to the second question: one way based on the standards and laws of the could be to gather secondary data. Based on European Union. In the context of Albania, reliable secondary data, normally, it could be this would create the strongest “umbrella” possible to prepare a preliminary list of for protecting these areas from the potential Natura 2000 sites for the country. numerous and serious threats. In this way, However, the questions which raise up here also the obligations sourcing from the are: (i) are there enough reliable data Stabilization-Association Agreement in the available for this purpose; and (ii) are these field of nature conservation are achieved. data available for all natural ecosystems in The recognition of these areas as potential Albania that should be subject of the Natura 2000 sites, directly assures a better www.eupolicyhub.eu

protection and management also based on The Emerald network, despite being the the benefits (in terms EU funds for nature first from the importance (at least in the conservation) that this status provides. frame of the country’s integration process in Page | 26 the EU), unfortunately is the last regarding CONSERVATION AND MANAGEMENT the attention which receives. The areas of PROBLEMS OF AREAS OF SPECIAL the Emerald network receive a special level CONSERVATION INTEREST IN ALBANIA of conservation and management actions Considering that the process of the only when one part or the whole surface of identification of potential Natura 2000 sites their territory it is overlaid with the national is under implementation and from what network of protected areas. mentioned above, the finalization of this The surface of the Emerald network, that process it is expected to be delayed with at is situated outside the boundaries of the least 3-4 years17, then it is reasonable that national network of the protected areas, the Emerald network to be treated with the does not receive any special conservation or same attributes as the potential Natura 2000 management attention compared to the sites. common (not part of any ecological network) The Emerald network includes Areas of territory of the country. These areas are Special Conservation Interest (ASCI) almost out of the informed management, identified in the countries which have ratified monitoring and sustainable development the “Convention on the Conservation of approach. In many cases these areas are European Wildlife and Natural Habitats” threatened from different legal and illegal known differently as the “Bern Convention”. activities such as: (i) hunting; (ii) logging of Identification and reporting of the Emerald forest surfaces; (iii) fires; (iv) pollution of sites are done from the signing countries to water, habitats and landscape; (v) fulfil the obligations sourcing from the Bern construction of hydropower plants and other Convention. In this line, the Natura 2000 objects. These activities have caused habitat network is the instrument that European degradation and loose of biodiversity in the Union has established to comply with the Emerald areas including species of high requirements of the Bern Convention. In this conservation interest for the European Union logic, since the Natura 2000 process it is listed in the annexes of Birds and Habitats under development and the list of the Directives. potential Natura 2000 sites is not yet The above mentioned activities might be prepared, it is the Emerald network where legal or illegal. In general, for the illegal Albania should apply the management rules activities it is reported the good will of the and standards of the European Union. government to control them through proposing and designing concrete measures

17 Lifetime of the current IPA 2013 project, currently under implementation in Albania. www.eupolicyhub.eu

and the comparing statistics of the global level, holding the status “Vulnerable” occurrence of the illegal activities from one based on the Red List of the Endangered year to the other. On the other hand, for the Species of the International Union for Nature Page | 27 legalized activities (in discrepancy with the Conservation (IUCN). Dalmatian pelican obligations that source from the Stabilisation (Pelecanus crispus) is also a species of high and Association Agreement), theoretically conservation interest for the European and practically the government cannot Union, listed in the Annex 1 of the Birds justify. This represents a direct precedent of Directive. Last but not least, this species is the violation of the country’s integration part of the Red List of the Albanian flora and process in the European Union. fauna holding the highest conservation There are not few the cases when status “Critically Endangered”. In Divjakë- inappropriate investment and development Karavasta, it is found around 2% of the plans are presented in particular sites of the European population of this species or 52 Emerald network and in the meantime these breeding pairs18. Considering only this fact, it areas happened to be inside the boundaries can be easily understood the high of the national network of the protected importance that this area has for the areas. These plans mainly consist in the Europe’s natural heritage. destruction of considerable surfaces of the In addition, this area is also home for the natural habitats for the purpose of building only heronry colony in Albania, which massive tourism resorts or infrastructure. includes the (i) Pigmy Cormorant The most actual examples are the (Phalacrocorax pygmeus); (ii) the Night presentation of such plans for some of the Heron (Nycticorax nycticorax); (iii) the best natural areas, symbols of the Albanian Squacco Heron (Ardeola ralloides), and most nature and biodiversity, likewise is the likely also the (iv) Little Egret (Egretta National Park Divjakë-Karavasta and the garzetta); (v) the Great White Egret (Egretta Protected Landscape Vjosë-Nartë. alba); (vi) the Grey Heron (Ardea cinerea), The National Park Divjakë-Karavasta is and the Great Cormorant (Phalacrocorax the symbol site of the Albanian nature and carbo). All these species are of high the most important wetland in the southern conservation interest for the European Union Adriatic. This area is habitat for more than as are listed in the annexes of the Birds 245 species of birds and represents the area Directive. Holding such biodiversity values, with the highest avifauna diversity in Albania. this area is part of all the ecological networks The National Park Divjakë-Karavasta is home that Albania participates and without doubt a for the only colony of the Dalmatian pelican future Natura 2000 site. (Pelecanus crispus) in Albania, which is a In early 2017, it was introduced the species of high conservation interest at project “Divjaka Resort Albania”, on which

18 Protection and Preservation of Natural Environment in Albania (PPNEA), unpublished data. www.eupolicyhub.eu

have been organized several public hearings Unfortunately, if the mentioned with the participation of different investment will be realized, none of the main stakeholders, including here, civil society threating factors (habitat destruction and Page | 28 organizations, government organizations and disturbance) can be avoided. Both threats local inhabitants. This project consists in are manifested along the construction and building a massive tourism resort inside the operation phase of this project. The habitat boundaries of the Divjakë-Karavasta National destruction can be illustrated with a very Park, in the meantime an Emerald site. simple example, the one of changing the Within this project is foreseen the natural habitat and landscape into an urban destruction of natural surface of 3342 ha, area, whereas the disturbance is generated where are included 200 ha of beach area, from the presence of workers and heavy 1050 ha of forestry area, 820 ha of machineries in the area particularly along the agricultural land and 1270 ha of lagoon area. construction phase. Re-bring these threats in The project will extend in a coastline of 12 the area can result in vanishing the last km, where a touristic resort of around 90 ha colony of the Dalmatian pelican and the last will be built, including 370 villas, 2400 heronry colony in Albania and destruction of apartments and hotels with a total capacity a future Natura 2000 site. of 4300 beds. Allowing or legalizing investment projects It cannot be denied that such a project of this kind, which consist in changing has a significant impact in the natural considerable surfaces within areas of special ecosystem, landscape and population of the conservation interest, threating the natural high conservation interest species at habitats and species, constitutes a violation national, European and global level. It is now of the rules and standards of the European confirmed that the main reason for the Union for the preservation and management decrease of the population of the Dalmatian of these areas. A good part of the EU pelican to the level of Critically Endangered is countries have been penalized because of the disturbance and the habitat destruction. not implementing the guidelines of the Birds The conservation work realized only along and Habitat Directives. BirdLife International the last years aiming the alleviation of the in year 2014 has compiled a summary report mentioned threats, enabled the recovery of with the cases of violation of the Birds the Dalmatian pelican population and the Directive treated by the European Court of decrease in the global conservation status Justice. One of the cases closer to Albania in from “Endangered” to “Vulnerable”. terms of context and geography is the case of Elimination of these threats also in the Bulgaria. In October 2009, the European Divjake-Karavasta National Park, as well, Commission sent four warnings to Bulgaria resulted in almost doubling the number of for violation of the European Directives of breeding pairs in the last colony of this Birds and Habitats, due to similar projects. species in Albania only in few years. One of these projects consisted in the www.eupolicyhub.eu

construction of a skiing centre in the a) Firstly, to accelerate and finalize the protected area of Pirin Mountains. This process of unification of the national project had been partly approved by the legislation for nature and biodiversity Page | 29 Bulgarian government before realizing a conservation with the legislation of the strict evaluation on the impact that the European Union, through a clear project could have on the species and transposition of the European Union habitats of high conservation interest for the Directives on Birds and Habitats. European Union. In the framework of the integration b) Secondly, to properly realize in time and process, Albania is obliged to progress quality the process of the identification of towards the approximation of the national potential Natura 2000 sites, through the legislation with the EU and to guarantee its strict implementation of both the above enforcement. Legalizing projects of this kind mentioned directives. Focusing only in the constitutes real examples of regress to the implementation of one of the directives is country’s integration process in the a totally unjustifiable deficiency in this European Union. process which cannot guarantee a complete and reliable result at the end. CONCLUSIONS AND RECOMMENDATIONS Albania holds an important part of the c) Last but not least, until the finalization of Europe’s natural heritage and in the the list of potential Natura 2000, it is the framework of the integration process it is Emerald network which should be obliged to preserve and sustainably manage managed based on the rules and it based on the guidelines from the Directives standards of the European Union. The of the European Union. The analysis carried Albanian government (that has proposed out for this policy brief shows problems and to the Bern Convention the list of the delays in complying with the integration Emerald sites in Albania) should pay obligations in the field of nature and special attention, in order not to legalize biodiversity conservation. If measures are or allow investment projects in these not properly taken, the country risks facing areas which violate the rules and consequences in the frame of the EU standards of the European Union. If the integration process, which is in the meantime natural habitats and species with high the first national priority. In order to avoid conservation interest for the European such potential consequences, it stands very Union are damaged or destructed as a important for the Albanian government to consequence of the investment projects take into consideration at least the following legalised by the Albanian government, recommendations: then, this constitutes an unjustifiable abuse to the integration criteria and direct violation of the integration process. www.eupolicyhub.eu

THE ROLE AND IMPORTANCE OF ALBANIAN LEGAL AND

Page | 30 INSTITUTIONAL FRAMEWORK IN GUARANTYING CONSUMERS’ FOOD SAFETY

INTRODUCTION economic access at all times to adequate The economy development is a key element food or means for its procurement. The core in the evolution and development of a state, content of the right to adequate food implies especially when it has passed from a (...) the availability of food in a quantity and transition country to a developing country. quality sufficient to satisfy the dietary needs The economy should be strong, competitive of individuals, free from adverse substances, in region and produce safe products ready to and acceptable within a given culture (and) sell them in regional markets or European the accessibility of such food in ways that are ones. sustainable and that do not interfere with the Everyone has the right to access to food. enjoyment of other human rights (...) The World Food Summit has reaffirmed the Accessibility encompasses both economic right of everyone to have access to safe and and physical accessibility”20. nutritious food, and decided that the content The World Health Organisation cites: of the rights related to food, as contained in “Food safety, nutrition and food security are Article 11 of the International Convention on inextricably linked. Unsafe food creates a Economic, Social and Cultural Rights19. The vicious cycle of disease and malnutrition, United Nations Committee on Economic, particularly affecting infants, young children, Social, and Cultural Rights (CESCR) has given elderly and the sick. Food borne diseases a definition of the right to adequate food: impede socioeconomic development by “The right to adequate food is realized when straining health care systems, and harming every man, woman and child, alone or in national economies, tourism and trade.21” community with others, have physical and

19 Some states have some provisions on their Albanian constitution do not express literally the right constitution on the right to food. Albanian to food, but through an extended interpretation, of Constitution do not have such a provision. The article the above provision, the legislator implies that right 59 “On social objectives” provides: “The state, within through affirming the health standards and a suitable constitutional competencies and means at its disposal, environment. as well as in complementarily with private initiative 20 Committee on World Food Security (CFS), “Global and responsibility, aims: c) the potential highest health Strategic Framework for Food Security & Nutrition”, standard, physical and mental; d) a healthy and (GSF) Fifth Version – 2016, pg. 7 ecologically suitable environment for present and 21 See: http://www.agrifood.net/position-papers/165- future generations.” mypow-food-safety-future-cfs-work/file www.eupolicyhub.eu

Food safety is a sensitive concept. Food our domestic legislation, is any natural safety should guarantee that the food does person who buys and uses goods and services not cause harmful effects on people’s health, for personal needs, meanwhile human is a Page | 31 if it is prepared and consumed under the literally term. It is very important to use the conditions of use. same concepts in different legal acts in order This definition is according to the law no. not to confuse the parties of consumer 9863, dated 28.01.2008 “On food”22. It is relationship: consumer and the trader. The clear that food safety is a long process which law “On food” defines the last consumer24, starts in the process of preparing the food till which is in fact the consumer, according to consuming it. Besides this, there is a big the law no. 9902, dated 17.04.2008 “On process which includes the stages of consumer protection” amended25. The production, processing and distribution. wrong usage of this definition is part of legal Committee on World Food Security defines acts in consumer protection in general, which food security, which exists when all people, makes a little bit confusion between the at all times, have physical, social and actors of this field. economic access to sufficient, safe and The process of European integration has nutritious food that meets their dietary obliged the Albanian state to fulfil the needs and food preferences for an active and obligation that derives from Stabilization and healthy life. The four pillars of food security Association Agreement. The article no. 76 are: availability, access, utilization and “On consumer protection”26 provides clear stability23. task for Albanian State, not only in the The first problem of Albanian definition process of law approximation but also in on food safety is the usage of term human establishing effective institutions. States instead of consumer. Even though at first should take measures to ensure that all food, moment it seems like the same, in fact do not whether locally produced or imported, freely clearly realize the main aim: the protection of available or sold on markets, is safe and consumers. Consumer, according to the consistent with national food safety European Union acts and jurisprudence and standards27.

22 Amended with the law no. 74/2013 “On some condition that person should be considered as a amendments on the law no. 9863, datë 28.1.2008 “On consumer. Then the usage of food products involves food”, the human being in process of food chain. See: Teliti, 23 Committee on World Food Security (CFS), “Global Ersida “Kontratat konsumatore”, Ph.D. thesis, Tirane, Strategic Framework for Food Security & Nutrition”, 2013, pg. 44 – 48. (GSF) Fifth Version – 2016, pg. 7 25 Amended with the law no. 10444, dated 14.07.2011 24 "Last consumer" is the last consumer of food and law 15/2013 “On some amendments of the law products that does not use food as part of the food no. 9902”. business. The law “On consumer protection” gives this 26 See: definition of the term consumer - any person who http://www.integrimi.gov.al/files/documents_files/16 buys or uses goods or services for individual needs, for -02-18-12-42-07MSA.pdf purposes not related to business or practicing a 27 FAO Council “Voluntary guidelines to support the profession. So, first should be clear which are the progressive realization of the right to adequate food in www.eupolicyhub.eu

The Albanian Progress Report 2016 has activity, but needs the effective role and not provided any progress in the field of food intervention of institutions. This study will safety, only technical issues without effective analyze but not exhaustively the main legal Page | 32 applications. The results of Progress Report acts and institutions with provisions and clearly states the evolution of Albania competencies in the field of food safety. towards years in food safety, emphasizing year by year the legal, institutional and THE LEGAL FRAMEWORK28 practical tools that has been improved or Law no. 9863, dated 28.01.2008 “On food”, there has been no action, comparing it with amended29 the obligation rising from the European The law “On food” is adopted after the Integration process. signing of Stabilization and Association Through years, our country has failed on Agreement, as a necessity of EU integration fulfilling the obligations rising from process. The first law is the law no. 7941, Stabilization and Association Agreement. The dated 31.05.1995 “On food”, which had ruled complexity of food safety requires not only a in general, without specific measures the sustainable legal framework, but also human food products. This clearly states that resources capable and responsible for their Albanian State had a legal framework in this work. Social media and other Medias field even though in embryonic phase. So the broadcast very often lots of problems with system of food safety, its rules weren’t food, not only informing Albanian unknown for our institutions. The law had consumers, but also referring to public provided sanctions for the traders who institutions which fail to comply their violate these rules. Even though there was a competencies. Many actions are released legal framework, the food safety had been and taken by institutions, but they have no and it is still a weak point of government major effect. This requires a planned and power. organized campaigns, not only when the The law “On food” aims to ensure a high problem is referred by the media, but level of protection of human’s health and anytime and moment, in order to offer more consumer’s interests through defining security to the consumer and “some general requirements on hygiene and safety pressure” to the trader in producing, of food, for the quality of it, for the labelling distributing, transporting and selling in of food, crisis and emergency management, accordance with the law provisions. Food safety as a sensitive process involves not only the parties of commercial

the context of national food security”, November important, without analyzing the acts in the field of 2004, pg.19 veterinary, phytosanitary rules etc. 28 There are lots of acts in the field of food safety, but 29 Amended by the law no. 74/2013, dated this paper will analyze only some of them, the most 14.02.2013. www.eupolicyhub.eu

the establishment and the responsibilities of clearly states that border inspection points the National Food Authority30. are an administrative part of the relevant The legislator has been careful in defining regional National Food Authority Page | 33 the concept food or food product, listing directorates and carry out control of the what could not be considered as food. cargoes of live animals, plants and products All the activity of food safety is based on which enter, exit or transit in the territory of precautionary principles, the principle of the Republic of Albania. The collaboration transparency and consumer protection. between these institutions, the national National Food Authority is the responsible Food Authorities and its branches, the local institution in collaboration with the government bodies will affect directly on the responsible ministry. prevention of health diseases and as a result According to the law, the food is safe on the economic interests of consumers. when it does not cause adverse action on It also provides the responsibility of the human health when it is produced, prepared traders32 for any damage to human health and consumed, according to the intended caused by the consumption of unsafe food in use. The food is considered unsafe when it is: all stages of production, processing and a) harmful to health; b) unsuitable for human distribution. The spirit of the law is the consumption. Food should not be used for collaboration of the traders with the public commercial use if it is unsafe. Besides this institutions, such as: National Food Authority provision, lots of food products are traded in and the responsible Ministry, especially internal market and they are unsafe. The traceability issues. The Decision of Council of problem is not the legal framework but the Ministers no. 760, dated 16.9.2015 “On the responsibility and the effectively of requirements of traceability on food and responsible institutions, in central and local feedstuff throughout the food chain” aims to government. establish the basis for an efficient system of The law rules the import and export of traceability of food and animal feed food products and the roles of different throughout the chain food, setting minimum institutions. The custom authorities should mandatory requirements for food tracers control the imported food after the and food, for control of food business surveillance of food inspectors31. The operators in order to minimize or eliminate Decision of Council of Ministers no. 1081, any risk of being caused by placing on the dated 21.10.2009 “On the organization and market unsafe food and feed. The trader the functioning of National Food Authority” should fulfil all the requirements mentioned

30 Also, it rules all the requirements of feed pets, 32 The law uses the term food business operator. Food feedstuffs pets, animal nutrition etc. This is a key business operator shall mean any natural or legal element related to food safety, but we will analyze it person, registered to carry out activities that are only rapidly. related to food business, responsible for ensuring that 31 Article 14 -18. food law requirements are achieved in the food business controlled by him. www.eupolicyhub.eu

in this act in order to provide the accurate consumer, making them aware and information for the consumer and the preventing health damages. competent authorities. This act provides: All the process of official food control, Page | 34 “Each food business operator or animal feed the laboratory tests, the licensed laboratory should establish an internal traceability and the references ones are ruled under this system.” So, beyond the obligations of the law, and in accordance with the instructions food safety institutions, traders by of responsible Minister33. The law rules the themselves should manage these data at any organization and the functioning of National time, at least three years after registering Food Authority, its bodies and the them. competencies in food safety. The law Traceability issues are one of the key provides the administrative sanctions in case components of food safety, where our of violations of its provisions. institutions have failed to do it or have just The National Sectorial Strategy “On done it formally, based only on the consumer protection and market documents. surveillance 2020” provides the obligation of One of the most important elements of the responsible Ministry on drafting and food safety, related to the information of the adopting 40 legal acts in compliance of EU consumer is the label in Albanian language, acquis, within the framework of short-time which should clearly indicate the name of the objectives. The State Supreme Audit product, its ingredients, the quantity of Institution has mentioned on its report that them, the expire date, the name and the government has failed in fulfilling this address of the trader, the country of origin, obligation. It has recommended: “The the instructions for use etc. The label should Ministry of Agriculture, in close cooperation be readable and comprehensible. This is a with the National Food Authority and the general requirement for information given to stakeholders, should present the necessary the consumer by the trader in any kind of improvements to food law, in order to consumer goods or services. The Decision of comply with the EU's "acquis", avoiding Council of Ministers no.1344, dated duplication and lack of partition 10.10.2008 “On the adoption of rules for the responsibility and coordination of state labelling of food products” has listed all the institutions in the food security chain. components and general requirements of National Food Authority, Legal Sector in food products labelling and some key cooperation with other sectors, should features on their publicity. This act provides prepare all draft -laws that compels further requirements for the labelling of food implement the food law and propose it for products, giving more information to the approval to the Minister of Agriculture in order to put in complete regulatory

33 Article 38 – 46. www.eupolicyhub.eu

framework to improve food safety in the The inspection procedure should be country”34. transparent and correctively in order to realize the main aim, to secure consumers Page | 35 Law no. 10433, dated 16.06.2011 “On the that the food products that they consume inspection in the Republic of Albania” are safe. Also, these inspections should not This law defines the general principles of affect the image and the figure of the traders. inspection, the organization of public institutions, performing inspection functions, Law no. 9902, dated 17.04.2008 “On the status of inspectors, the rules of consumer protection”40 administrative inspection procedure and the This law aims to protect consumers’ interests establishment of the Central Inspectorate. It in the market as well as the determination of defines "Inspection" as any form of control rules and establishment of relevant that the public body carries out to verify institutions to protect consumer rights. The compliance with legal requirements by the article 2 states that this law doesn’t apply in inspection subject. The inspection is based those consumers relations, which are ruled on some principles such as: the principle of by other favourable laws for consumers. independence of inspection35; the principle Even though food safety is regulated by other of proportionality36; the principle of specific laws and legal acts, the law “On inspections programming37; the principle of consumer protection” is a framework law, most favourable legal provision38; the determining the general definitions on principle of public information and consumer protection, listing the consumer protection of confidentiality39. rights and offering a clear view on general Through the inspection the authorities principles where the consumer protection guarantee food safety. The National Food should be based. Authority and its regional directorates, The right of health protection, through the inspection activity and making environment and life safety is one of the the results public, exercise their most important rights. It is related to food competences effectively and increase the safety, because health damage affects level of credibility to the public. directly consumers’ health and life safety. This violation is related to another important

34 State Supreme Audit Institution “Food safety”, final the general requirements according to applicable report on performance audit, August 2017, pg. 33. laws. Between the principle of confidentiality of the 35 Article 5. traders’ data and the information of consumers 36 Article 6. should prevail the last one, as it guarantees the 37 Article 7. protection of public interest. 38 Article 8. 40 Amended by the law no. 10444, dated 14.07.2011 39 Article 9. and the law 15/2013 dated 14.02.2013 “On some This principle is in a full harmony of the food safety amendments on the law no. 9902, dated 17.04.2008 legal framework. The Inspectorate should inform “On consumer protection”. consumer in case that the food products do not fulfill www.eupolicyhub.eu

consumer right, the right of protection the specific analysis, but only on the inspection of economic interests41. Provided as positive the traceability or technical conditions. rights, the state through its institutions So, the two laws have to be integrated in Page | 36 should create a legal and institutional order that the consumer voice is heard framework, so that the trader should offer directly or through the representation, only safe products. Safe products are safe for guaranteeing safe food products. consumers' health; this will not cause damage, so the life and economic interests THE INSTITUTIONAL FRAMEWORK will be protected. This situation will be real if Food safety implies not only the process of the food chain production and control will food chain but also other components function without any barriers and each of the mention in this paper. The institutions stakeholders would be responsible in this involved in this process are not only they chain. analyzed as follow, but there also others, The article 7 -12 of the law “On consumer such as: Food and veterinary safety institute protection” provides general traders’ etc. This paper is based only on the main obligations, such as: the information government institutions on food safety obligation, the price, the tax invoice/ coupon, competencies, not exhaustively. the packaging of goods and the obligation of language. These provisions are also provided The responsible Ministry42 in other laws, expressed more explicitly, The National Sectorial Strategy “On related to the aim of the law. consumer protection and market It also emphasises the role of consumer surveillance 2020” states that there are still protection organizations. The law “On food” some challenges in food safety. So, according is very vague on the role and importance of to the principle from the farm to the table, these non-profit organizations in food safety. the responsible institutions should: The law “On consumer protection” lists the i) guarantee food safety for consumers by consumer associations as a structure where improving the system of risk assessment the consumers could claim in case of their process, management and its rights violations. There are only few cases in communication; Albania that the consumer organizations ii) ensuring the health of consumers from have claimed at National Food Authority on the prevention and elimination of risks food products, mostly for: the expired data, food products through the spoiled products, the products composition implementation of national waste etc. There has been no response related to monitoring programs, microbiological

41 For further information see: Teliti, Ersida “Një 42 The author has used the term the responsible vështrim krahasues mbi të drejtat e konsumatorëve në ministry because it has been lots of time subject of Shqipëri”, Journal of “Studime Juridike”, Vol. No. 1, changes, the name and the competencies. Different 2011, Shtypshkronja Pegi, pg. 117 – 144. acts have different name of it. Actually it is the Ministry of Agriculture and Rural Development. www.eupolicyhub.eu

criteria and contaminants in live animals, Ministry. It is established under the Decision food products of animal and non-animal of Council of Ministers no. 1081, dated origin, and of bivalve molluscs. 21.10.2009 “On the organization and Page | 37 The responsible Ministry should establish functioning the National Food Authority”. and coordinate the legal framework and the It is established as the institution that will harmonization of legislation with the guarantee the food safety system in European Union legal framework. The fulfilment of legal, economic and social competencies of the Ministry are mostly requirements. It conducts inspection, declarative and coordinative. It should technical and scientific activities, in collaborate with the other institutions in accordance with this law and other specific order to guarantee food safety and it laws for the safety and quality of food and represents our state in all the phases of EU fodder for animals, health and animals integration process in this field. The highest welfare, as well as for plant protection. state policies in the field of food safety are The article 38 of the law “On food” drafted by this institution. This requires a provides that: “The official food control sustainable cooperation with other central includes one or more of the following and local government institutions. activities: The National Sectorial Strategy “On a) inspection; consumer protection and market b) sampling and conducting analyzes; surveillance 2020” lists short terms and long c) control of the label and official terms legal and institutional objectives, that documents; have not been fulfilled by the responsible c) reviewing the documentation for Ministry among years. traceability; Viewing the Ministry as a political d) review of the self-control system.” institution has involved all the categories of So, National Food Authority has lots of civil servants. That means that any time that competences, but what has always been said we have political changes; these changes are in official or unofficial way, through media or reflected to the latest specialist and started other institutions, is the lack of human works are mostly left in the middle. So the resources and the lack of licensed lack of continuously of duties and the laboratories. Besides the National Food specialist have created problems in the Authority is the only consumer protection system of functioning this Ministry in fulfilling institution that has his own branches in all the obligation rising from domestic and counties in the Republic of Albania. international legislation. The official food control is done during the stages of production, processing and National Food Authority distribution, through suitable tools and National Food Authority is a legal person, without warning. The law has provided in public one, depending on the responsible article 40 two situations of official food www.eupolicyhub.eu

control: a) regularly and in accordance with parts of exporting countries or transit the priorities indicated in the scheme of risk countries; evaluation; b) when there is reason to believe c) elimination of food without causing Page | 38 that the requirements of this law are not damage; met. c) other temporary and appropriate Crisis management and emergency is one measures.43 of the most important competencies of So, the National Food Authority has only the National Food Authority. This Authority, in obligation to propose and the Minister has collaboration of responsible Ministry, drafts a the right to act and take the measures. Most national plan for crisis management in food of them are declarative and discrete ones, safety, which is approved by Council of that clearly states that it is in the strong will Ministers. of the Minister to take the stronger and When it is noted that food presents a extreme measures, such as elimination of the serious risk to human health or the food. environment and that such a risk could not The most important competence is the be eliminated, National Food Authority evaluation of risk assessment, where the role proposes to the responsible Minister, based of National Food Authority is not only on on the difficulty of the situation, taking the gathering information about the risk of food following measures. safety and analyzing it, but also collaborating I. If the food is produced in the country: with other institutions, not only public ones, a) temporary prohibition on placing on such as: Institute of Public Health, Institute the market or usage of food; on Food Safety and Veterinary and other b) the definition of specific conditions for legal persons, such: the traders or private specific foods; legal persons. The European Commission’s c) elimination of food without causing Progress Reports for Albania has reported damage; very small progress in food safety, as in 2012 c) other temporary and appropriate has defined that the development in food measures. safety is at an early stage44, in 2016 has II. If the food is imported: defined that: “There is no progress in risk a) temporary prohibition on the import of assessment and the collaboration with other food from exporting countries or from institutions involved in risk assessment is parts of the exporting country or transit very weak.45” countries; The European Commission’s Progress b) the definition of specific measures for Reports for the Former Yugoslav Republic of specific foods from exporting countries, Macedonia in 2016 affirms some progress in

43 Article 47 – 48. 45 European Commission’s Progress Report for Albania 44 European Commission’s Progress Report for Albania 2016. 2012. www.eupolicyhub.eu

the level of preparation in the area of food This institution46 is governed by the safety. The European Commission’s Progress Board, which has a diverse and political Reports for Serbia in 2016 states that even composition47. The numerous changes of its Page | 39 though Serbia is moderately prepared in the members, conditioned by the election call area of food safety, there has been no into question the well-functioning of this progress in the past year. None of these body. The Civil Society has no information on reports makes note on risk assessment and in the functioning of this body, the Albanian Progress report, which implies the representatives of consumers’ organizations importance of it in our country. and the role of it48. The State Supreme Audit The State Supreme Audit Institution Institution has emphasized the lack of during the audit and inspection of the functioning the Board and its direct effects National Food Authority has affirmed the lack on the role of National Food Authority on of a proper activity for risk analysis, reducing food safety. The European Commission’s the performance of the inspection activity Progress Reports for the Former Yugoslav and consequently improving food safety. Republic of Macedonia in 2016 let implied In order to realize its functions, the that even though National Council for Food National Food authority should share this and Animal Feed is established later than information, but the law does not mention Albanian National Food Authority is more consumers or consumer’s organizations. effective and collaborative in order to Because of lack of information and the weak provide scientific and technical support to way of sharing it, Albanian Consumers are the Food and Veterinary Agency. The less informed in our region. Consumers are European Commission’s Progress Reports for not aware on the possibility to claim and the Serbia in 2016 emphasizes the role and way of claiming, so there is a necessity of human resources in the National Reference updating the website of this institution. Laboratories Directorate. Through years this institution has done small progress.

46 The article 63 provides: “Constituent bodies of the e) Chairman of the Association of Mayors; (e) Five National Food Authority are: a) the board; b) the professors in the food, feed, veterinary and plant General Director; c) scientific committee and scientific health professions; f) a representative of the panels; c) respective inspectorates and laboratories; consumer association; g) a representative of the d) regional directorates.” agribusiness association.” The points a), b), c), d) 47According the article 64: “The board is responsible referee to the responsible ministries as their names for ensuring that the National Food Authority have changed. The State Supreme Audit Institution performs its mission and fulfils the obligations charged during the audit and inspection of the National Food by this law. It consists of 15 members as follows: a) Authority has evidenced the lack of functioning of the two representatives from the Ministry of Agriculture, board, scientific committee and panels. See: State Food and Consumer Protection; b) a representative Supreme Audit Institution “Food safety”, final report from the Ministry of Health; c) a representative from on performance audit, August 2017, pg.16 the Ministry of Finance; c) a representative from the 48 The Center “Konsumatori shqiptar” has sent a Ministry of Interior; d) a representative from the request for information on 2016 and there was no Ministry of Environment, Forests and Water response from the Ministry of Agriculture, Food and Administration; dh) a public person in the media field; Consumer Protection. www.eupolicyhub.eu

The State Supreme Audit Institution essential to the organization of an efficient during the audit and inspection of the food control system. The National Food National Food Authority has clearly Authority has set up and keeps updated the Page | 40 evidenced the weak points of this institution database "AKU-net", which already contains on accomplishing the tasks: starting from its detailed information on the labelling of food organization and structure, the frequent and feedstuffs. The opening of these data is movements of employees, the inability of going to have a positive impact on consumer conducting the laboratory analyses etc.49 The perception and coordinated inspection by National Sectorial Strategy “On consumer inspectors. protection and market surveillance 2020” Also, Albania is trying to be a Candidate identifies as a priority recognition of national State and one key element on food safety is and European / international results for at getting and sharing information through least 20 types of tests performed by Food Rapid Alert System for Food and Feed, and Veterinary Institute laboratories50. created from European Commission. States should adopt measures to protect consumers from deception and Local Government52 misrepresentation in the packaging, labelling, The local government has the right and advertising and sale of food and facilitate the ability to rule and administer an essential consumers’ choice by ensuring appropriate part of public affairs under their own information on marketed food, and provide responsibility and in the interest of the recourse for any harm caused by unsafe or community, in accordance with the law adulterated food, including food offered by provisions. The article 3 provides: “Local self- street sellers. Such measures should not be government in the Republic of Albania used as unjustified barriers to trade; they ensures effective, efficient governance and should be in conformity with the World Trade at a level closer to citizens through: ... b) Organization agreements51. respect for the fundamental rights and The food safety is clearly related of freedoms of citizens sanctioned in process of informing consumer. The National Constitution or other laws;” So, the activity of Food Authority has failed in accomplishing local government units should respect the this task. The National Sectorial Strategy “On consumers rights and establish an consumer protection and market environment for food safety. The surveillance 2020” affirms that creating a competencies in this field are a little bit data management system at each step of the limited. The law emphasizes the control chain, from central to local level, is collaboration between the local and central

49See: State Supreme Audit Institution “Food safety”, 51 FAO Council “Voluntary guidelines to support the final report on performance audit, August 2017, pg. progressive realization of the right to adequate food in 16; pg. 30. the context of national food security”, November 50 Pg. 12- 13. 2004, pg.20 52 The law no. 139/2015 “For local self-government”. www.eupolicyhub.eu

government in the solution of common the consumer rights a high level of problems. The municipalities has lots of guarantee and protection. competencies in economic development  We strongly recommend a full Page | 41 field and one of them is the establishment harmonization and unification of all the and function of public markets. The acts, definition and concept in consumer organization of them in accordance of protection legal framework and the general requirements of hygiene will create a government should adopt all the legal safe environment for consumers. acts foreseen as soon as possible. The The Tirana municipality is the only local responsible institutions should be government unit that has under its coherent, should respect the legal responsibility an agency in the field of deadlines. In each institution could be consumer protection, The Agency for appointed a specialist, who has this task Consumer Protection. This structure has and follow the deadlines. He should not done many activities: inspection ones, be subject of political changes in awareness or information activities in the institution. field of food safety, raising the consumer  The responsible Ministry should fulfil voice. the objectives provided in the National The other local government units just Sectorial Strategy “On consumer have any specialist which has some vague protection and market surveillance competences in food safety, without 2020”, offering more credibility to the exercising them effectively. The local consumers. Some of these products are government is the government near the part of Progress Report and beside the citizens, is the first confrontation of will of the governs, they should be met by government with the public. The missing any means. The usage of media through competencies of local government on food the planned actions and the publicity of it safety requires a new restructuring of local make consumers feel safe for the food government in human resources with first products they use. level specialist, who are going to be the  The central and local government connecting bridge with the institutions with should collaborate and share information competencies on food safety. in order to guarantee food safety to consumers. This could be achieved THE LAST REMARKS through their specialist, but also through Recommendations for central government the branches of National Food Authority.  The Albanian legislator should The lack of counselling centres in local incorporate the right to food under the government break this part of economic, social and cultural rights, information chain. recognizing it as human right, giving to  The staff members of National Food Authority shouldn’t be part of political www.eupolicyhub.eu

changes and should have lots of field of consumer protection and food experience, out of political preferences. safety, as this is the government nearer  The National Food Authority should the consumers than the central one. Page | 42 collaborate with other public institutions  The local government should in order to manage effectively the risk on establish the counselling centres in order food safety, in order to inform and to inform consumers and to help them protect consumers in time. The claiming. agreement between institutions should  States are encouraged to cooperate be effective in giving and sharing the with all stakeholders, including regional necessary information, so each of these and international consumer institution will be more effective and organizations, in addressing food safety responsible. issues, and consider their participation in  The National Food Authority should national and international forums where collaborate and consider the consumer policies with impact on food production, organizations as partners in their processing, distribution, storage and activities, in order to fulfil its marketing are discussed. competencies to protect consumers.  The consumer organization should be considered as partners in all these Recommendations for local government process but the state and should be  We strongly recommend the local financed by it in order to fulfil the state government on establishing specific duty of informing consumers. directorates with competencies in the

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THE HURDLE RACE’ TO EU MEMBERSHIP: Page | 43 IS ALBANIA A LAGGARD AND WHY?

INTRODUCTION: ‘THE HURDLE RACE’ TO EU the most problematic countries will have to MEMBERSHIP overcome greater obstacles for joining the The Zagreb Summit in 2000 laid the ground EU. Today, ‘racing' for EU membership has of the European Union's (EU) enlargement been extensively prolonged depending on policy towards the Western Balkans (WB). the progress of each candidate country, a Unlike the 'Big Bang' approach in Central and fact which is reflected in the degree and the Eastern Europe (CEE), the enlargement policy type of contractual relations of those towards the Western Balkans has as its core countries with the EU. All countries in the element, the individual membership of each region are at different stages of European of the Western Balkan countries. 'The integration. Croatia is the only country in the Individualized Approach’53 intends the region, which is an EU member state since achievement of EU membership based on July 2013. Meanwhile, Montenegro and the individual merits of the progress Serbia are in accession negotiations, achieved by each candidate country. The aim Macedonia and Albania are candidate of this ‘regatta approach’ is to stimulate countries, while Bosnia-Herzegovina and constructive competition among the Kosovo are still potential candidate countries in the region and help identify best countries. Moreover, even within a modality, practices.54 Almost after 20 years from the the Western Balkan countries represent European perspective, the enlargement different speeds of advancement in meeting policy has not changed much. It is a with the European standards. continuation of the gradual and slow access Albania is part of the group of the laggard to membership, based on enhanced countries to EU membership, since the conditionality and a greater focus on the rule progress in meeting EU conditions has been of law and the additional monitoring limited and delayed compared to most other mechanisms. However, creating a variety of countries in the region, despite the fact that complex requirements and focusing on Albania was not being involved in the violent individual states’ priorities has made EU conflicts of ex-Yugoslavia and there are no membership an elusive moving target where fundamental political disputes, such as the

53 “the Union proposes an individualized approach to 54 Marciacq, Florent (2015) “EU Enlargement in each of these countries” (of the Western Balkans). troubled times? Adapting to new realities and drawing See: European Commission (2000) “Zagreb Summit lessons from democratisation failures”, ÖGfE Policy Final Declaration, Zagreb. Brief 39, Vienna, pg. 4. www.eupolicyhub.eu

case of Macedonia on the name issue, the European standards? What are the main non-recognition of Kosovo as an causes that affect the performance of independent state from five EU member Albania and how we can draw best practices Page | 44 states, or the deep political and institutional to improve the process? These are the crisis of the state of Bosnia- Herzegovina. questions that we will address in this Various scenarios have been presented by occasional policy paper. Despite assessing different scholars and experts about the the situation and the factors influencing it, in possible dates of Albania’s membership in addition to the domestic country’s the EU. 10 years ago, the experts estimated conditions, we should also consider the EU’s based exclusively on the analysis of internal approach to enlargement policy or the factors that in the worst possible but most developments within EU itself and its likely scenario, Albania could not become a member states. Here we will focus mainly on member state before the year 2020.55 A the domestic factors, this is because the recent study analysing the national capacity analysis and assessment of the current policy of candidate countries (adaptation costs and of enlargement in the Western Balkans has administrative capacities) to fulfilling the been carried out by other studies.57 membership criteria, finds that Albania will face difficulties in meeting the requirements “AT A SNAIL’S PACE”: THE PROGRESS OF THE of aligning legislation with that of the EU, and CONTRACTUAL RELATIONSHIPS IN THE they foresee that the country, as well as the DIFFERENT STAGES OF THE EU ACCESSION most problematic countries of the Western PROCESS Balkans, could not be an EU member states After delays due to Albania’s difficulties in before 2050.56 guaranteeing political stability and So where does Albania really stand in the implementing reforms, the negotiations for membership race to joining the EU, the Stabilization and Association Agreement compared to other countries in the region (SAA) with Albania were officially launched and also in different time-periods? How long on 31 January 2003 and concluded in June it will take for the country to overcome the 2006, making Albania the third country of the different stages of the integration process, Western Balkans to sign an SAA with the EU. and what is the level of compliance with the The SAA came into force on 1 April 2009, and

55 Vurno, Gjergji (2008) “Relations of Albania with the regard to the time the country will join the EU, EU”, Paper prepared in the Framework of the Project: however, with regard to the progress achieved, ‘Integration Perspectives and Synergic Effects of Albania is closer to Bosnia-Herzegovina than countries European Transformation in the Countries Targeted like Montenegro and Serbia. See: Jay, Tom (2016) The by EU Enlargement and Neighorhood Policies’, Center race for EU membership: Enlargement is not high on for EU Enlargement Studies, Budapest. the EU’s agenda, but that isn’t stopping its would-be 56 Böhmelt, Tobias and Tina Freyburg (2017) members, POLITICON, December. “Forecasting candidate states’ compliance with EU 57 See e.g. Balkans in Europe Policy Advisory Group accession rules, 2017–2050”, Journal of European (2014) “The Unfulfilled Promise: Completing the Public Policy. Other analyses are more optimistic with Balkan Enlargement”, Policy Paper, May. www.eupolicyhub.eu

on the 28 of April 2009, Albania formally account this recommendation of the submitted its application for EU membership, European Commission and granted the despite the appeal and persistence from the candidate status to Albania in June 2014. Page | 45 EU officials, including the Enlargement Currently, the opening of the accession Commissioner, to Albanian government for negotiations depends on Albania’s further not submitting the application before the progress in five key priorities, namely public country’s general elections, since further administration reform; strengthening of the progress towards the European integration independence, efficiency and accountability process depended on the development of of the judiciary; the fight against corruption; free and fair elections.58 In his opinion on the fight against organized crime; and the Albania’s application, the European protection of human rights. In its latest Commission noted that before the report, in November 2016, the European membership negotiations were opened, the Commission recommended that EU member country still had a lot of work to do in order states should consider the opening of EU to achieve a sufficient degree of compliance accession negotiations with Albania when with the membership criteria. Thus, the credible and tangible progress has been Commission recommended that the achieved in implementing the justice reform negotiations will be opened as soon as the adopted in July 2016, and in particular the re- country fulfilled the 12 key priorities evaluation of the judges and prosecutors (the identified in the Commission’s Opinion.59 vetting process).60 Following the two successive ‘NOs’ in 2010 From the table 5 on the stages of the EU and 2011, the European Commission membership and the status of the EU recommended in October 2012 the relations with the WB countries, we note that conditional status of the candidate country, if the avant-garde countries in the EU Albania fulfilled key measures in the area of integration process have had a shorter time, justice, public administration reform, and the of about one year, to pass from one stage of completion of the revision of the the process to the other. Meanwhile, in the parliament’s rules of procedure. On 16 case of Albania, the transition to different October 2013, Albania was finally given the phases of the accession process takes more green light by the European Commission for time. In the case of the negotiations for the candidate country status, because it noticed Stabilization and Association Agreement, the that the recommendations were mostly process lasted three and a half years, almost fulfilled. The European Council has taken into three times more than in the case of Croatia,

58 Balkan Insight (2009) ‘EU Welcomes Albania's European Union, Brussels, 9.11. 2010, COM (2010) Application: European Commission has welcomed 680, pg.11-12. Albania’s application for EU membership’, April. 60 European Commission (2016) “2016 Enlargement 59 European Commission (2010) Commission Opinion Package: Credible enlargement process key to driving on Albania's application for membership of the transformation and anchoring stability in Southeast Europe”, Press release, Brussel, November. www.eupolicyhub.eu

Macedonia, or Montenegro. For Croatia, negotiations with the EU. If we see the Montenegro, Serbia and Macedonia61 the progress in the contractual relations at time from the application until the status of different stages of the accession process, we Page | 46 the candidate country and then for the notice that Albania is moving at a much opening of the accession negotiations the slower pace than most of the other countries time needed was one to two years, whereas in the region, although Albania has been in in the case of Albania, it took five years from the ‘pole position’ in the early ‘90s, as the the date of the formal application to the first country from the region which signed in granting of the candidacy status. Today, May 1992 the trade and economic more than 3 years have passed and the cooperation agreement with then-European accession negotiations have been postponed Community. with still no date when Albania could start the

Table 5: The Stages of EU Membership and the Status of EU- WB Countries Relations

Stages

States

Status Candidate Country

The OpeningThe of negotiations for SAA SAASigning entryThe into force of SAAthe Application for EU Membership statusGranting the of EU Opening of the EU accession Negotiations Closing EUof the accession Negotiations Accession Member Croatia April October February February June October June July State 2000 2001 2005 2003 2004 2005 2011 2013 Country Montenegro September October May December November June -- -- Accession 2006 2007 2010 2008 2010 2012 Country Serbia October April September December Mars January -- -- 2005 2008 2013 2009 2012 2014 Albania January June April April June ------Candidate 2003 2006 2009 2009 2014 Country Macedonia Mars April April Mars December ------2000 2001 2004 2004 2005 Bosnia- January June June February ------Potentially Herzegovina 2006 2008 2015 2016 Candidate Kosovo October October April ------Country 2013 2015 2016 Source: European Commission

61 In the case of Macedonia, the start of membership Door for Further Enlargement?, No. 30, June, negotiations, is among other things due to the dispute “Maximizing the integration capacity of the European with Greece over the name issue. Dimitrova, Union: Lessons of and prospects for enlargement and Antoaneta L. (2016) The EU’s Evolving Enlargement beyond” (MAXCAP), pg. 13. Strategies: Does Tougher Conditionality Open the From the above table on the stages of the EU notice that Albania is moving at a much membership and the status of the EU slower pace than most of the other countries relations with the WB countries, we note that in the region, although Albania has been in the avant-garde countries in the EU the ‘pole position’ in the early ‘90s, as the integration process have had a shorter time, first country from the region which signed in of about one year, to pass from one stage of May 1992 the trade and economic the process to the other. Meanwhile, in the cooperation agreement with then-European case of Albania, the transition to different Community. phases of the accession process takes more time. In the case of the negotiations for the REASONS FOR TIME DELAYS Stabilization and Association Agreement, the Albania should have been in the group of the process lasted three and a half years, almost countries that should have advanced towards three times more than in the case of Croatia, EU membership, but due to the extreme Macedonia, or Montenegro. For Croatia, domestic political polarization, the country Montenegro, Serbia and Macedonia62 the has not given priority to the European time from the application until the status of agenda.63 The slow pace of the contractual the candidate country and then for the relations towards EU accession has been and opening of the accession negotiations the continues to be mainly due to the domestic time needed was one to two years, whereas political polarization and lack of cooperation. in the case of Albania, it took five years from If referring to the Bertelsmann the date of the formal application to the Transformation Index (BTI), the party system granting of the candidacy status. Today, in Albania is characterized by a moderate more than 3 years have passed and the polarization level, which is deepening accession negotiations have been postponed lately.64 In Albania, during and after the with still no date when Albania could start the elections, a tense political polarization has negotiations with the EU. If we see the been observed, characterized by conflicting progress in the contractual relations at approaches, constant boycotts, mutual different stages of the accession process, we accusations, animosity between political

62 In the case of Macedonia, the start of membership 64 Section 5.1 for the party system assesses whether negotiations, is among other things due to the dispute there is a viable party system capable of articulating with Greece over the name issue. Dimitrova, and representing social interests, given the level of Antoaneta L. (2016) The EU’s Evolving Enlargement polarization. A rating of less than 4 indicates high Strategies: Does Tougher Conditionality Open the polarization, values 4 to 7 show moderate polarization Door for Further Enlargement?, No. 30, June, and a higher rating of up to 10 presents the low “Maximizing the integration capacity of the European polarization of the party system. The Party System in Union: Lessons of and prospects for enlargement and Albania in 2006 is assessed with 7 and afterwards until beyond” (MAXCAP), pg. 13. 2016 with 6, indicating a polarization increase of the 63 “Executive Summary” in Jacques Rupnik ed. The party system with 1 point. See: BTI database Western Balkans and the EU: 'the hour of Europe', https://www.bti-project.org/. Chaillot Paper, EU Institute for Security Studies, Paris, June 2011, pg. 9 www.eupolicyhub.eu

groups, thus making it difficult or almost or in 2014 to end the 5-month parliamentary impossible to discuss and negotiate on the boycott of the Democratic Party. country’s primary European integration Both the opposition and the government Page | 48 issues, and as a consequence the progress are careful in their public pronouncements. towards EU membership has been They accuse each other of not fulfilling the consistently hampered. This situation is often European agenda, because none of them reflected in the communications and reports want to be identified in front of the of the European Commission, which assess electorate, who mostly is pro-European, as a that in Albania “political polarization deterrent force of the country’s progress remained high [...]” and as a result “hindering towards European integration. In the rhetoric both political dialogue and technical of the political elite of the ruling parties, processes”.65 Moreover, in a letter that the always the failure to the country’s President of the European Commission sent advancement on European integration has to the Prime Minister of Albania, stresses been the brakemen role of the opposition. that “the path of [the] country will indeed In her public speech, the former Minister require constructive cross-party dialogue and of European Integration, Bregu, said that cooperation”.66 ‘Albania has lost two years of not receiving In most cases, the opposition in Albania, the candidate status. We have harmed from all political wings, has played indirectly ourselves. It is enough with the internal fights a deterrent role in advancing the European over the last two years! Though we have integration process and often it has taken made compromises, we have not done drastic measures through boycotting the enough’67. In the same way of thinking, but process. This has been seen as the only way now with the roles changed, the current to impose on the arrogant attitudes of the Prime Minister of Albania, Rama has government. EU has been playing a decisive emphasised in his public speech that in order role in mediating and reaching agreement to achieve as soon as possible the country’s between the parties, this has been the case integration objective, it is needed of the European Parliament’s intervention in cooperation with the opposition, for which 2010 to end the boycott of the Socialist Party, he has not found the proper support.68

65 European Commission (2016) Albania 2016 Report, Albanian politicians between outdated dilemmas and Brussels, 9.11.2016, SWD (2016) 364 final, pg.7. European imperatives’, report, September. 66 The letter that President Juncker sends to Prime 68 In four years from now, Albania must be much closer Minister Rama, date 03.07.2017, in Oliphant, Vickiie to the European Union than it is today, it is and it will (2017) EU to replace Britain with ALBANIA? Juncker be my responsibility, a responsibility that does not launches big push for full membership, frighten me, but it encourages me ... I have begged our www.express.co.uk, 4 July. opponents for a pact to work together for this purpose 67 Former Minister of European Integration, Mrs. and for some objectives of national interest. See Majlinda Bregu, cited from: European Policy Center weekly communication of the Prime Minister date 28 (2012) ‘To compromise or not to compromise? October 2017, 17.20. www.eupolicyhub.eu

CONTINUOUS LIMITED PROGRESS: etc.). The Commission Reports are a good COMPLIANCE WITH EUROPEAN STANDARDS source of data to assess qualitatively the In assessing Albania’s progress towards EU changes in almost all sectors of public policy, Page | 49 membership, the issue is not only when but both in legislative terms (the adoption of EU also how and to what extent the European legislation and government policies) and in standards have been met. In other words, to the aspect of their practical what extent Albania has progressed in implementation.69 Progress is measured on adopting and implementing EU policies. the basis of the established or upgrading of In order to provide a systematic and the institutions, decisions taken, adopted comprehensive assessment of the degree of laws and measures implemented (usually, the country’s compliance with the European laws or measures that are under preparation standards, we will refer to the progress or awaiting parliament’s approval are not reports of the European Commission, which taken into account as fulfilled). So we can monitor in detail and on a yearly base the give a qualitative assessment of whether progress in meeting the Copenhagen criteria. progress has been made or not, or whether Methodologically, the progress reports have the progress achieved is significant or a standardized and rigorous form, mostly limited, referring to the specific qualitative they follow the same structure as in the expressions that the reports use to describe previous years. The assessment of the annual the progress in meeting with the EU progress reports provides a very useful requirements. The word ‘progress’ is the key source of analysis as they present qualitative expression. comprehensive and systematic data based To calculate a compliance performance on a large number of sources. Reports are index, we will consider the intensity and drafted by the European Commission on the frequency of the performance (progress) basis of information gathered from many achieved in each policy sector of the acquis sources, including information and or differently said in the 33 accession contributions from the EU delegations, the negotiation chapters of the European governments of member states and Commission’s reports in Albania. In order to candidate countries, the reports of the decide on the intensity of the performance in European Parliament and the assessments each of the public policy area (for each made by various non-governmental negotiating chapter), we will refer to the organizations and international organizations scale used by the European Commission. In (in particular the Council of Europe, the the European Commission progress reports, OSCE, the International Financial Institutions we can record four major assessments70 for https://www.facebook.com/edirama.al/videos/10155 communautaire in EU candidate countries, 1999– 264880831523/. 2003. European Union Politics, pg.541. 69 Hille, P., and C. Knill. (2006) ‘It’s the bureaucracy, 70 Recent EU Commission progress reports have stupid’: the implementation of the acquis changed the methodology, adding a fifth assessment, that of regression. www.eupolicyhub.eu

each of the public policy areas ranked as index of compliance with European ‘important, good or significant progress’ standards, we calculate an average where (giving a value 1); simply stating ‘progress’ the sum of the number of public policy areas Page | 50 (giving a value of 0.67); ‘little, limited or multiplied by the coefficient of the intensity somehow progress’ (giving a value of 0.33); of the progress (according to the values given and the case when there is no ‘progress’ (we by us) is divided by the total number of public give a value 0) in a given public policy area. policies (this number in principle is 33, as the Based on the degree of the intensity of the negotiating chapters) mentioned for the progress we also count the number of public specific year. The results of this calculation policy areas that fall under each of the above are presented in the table below. categories. To create an annual performance

Table 6: Performance of Albania’s Compliance with European Standards (2005 - 2016) Year Number of policy chapters/sectors assessed to have achieved... No Limited Progress Good Index of Progress Progress 0.67 Progress Compliance 0 0.33 1 with European Standards 2005 3 14 4 1 0.38 2006 2 17 6 0 0.39 2007 3 14 6 1 0.40 2008 1 17 12 0 0.46 2009 1 23 10 5 0.49 2010 0 13 12 8 0.62 2011 1 24 8 0 0.40 2012 2 26 4 1 0.37 2013 1 28 3 1 0.37 2014 0 30 3 0 0.36 2015 4 28 0 1 0.31 2016 3 28 0 2 0.34 Source: Own calculation. Qualitative data on the state of ‘progress’ on the EU legislation part are extracted from Commission’s progress reports. The EU legislation part of the reports is divided into policy areas or chapters, the number of which varies depending on the stage of accession (from 20 for potential candidate countries to 33 for candidate countries). The aggregated compliance index is computed taking into account the frequency (nr of policy areas) and intensity (ordinal four-value assessment) of the stated ‘progress’. It is calculated as the sum of the number of policy areas per progress-scale divided by the total number of policy area mentioned in the specific year.

www.eupolicyhub.eu

Figure 1: The Index of Complying with European Standards in Albania (2005 - 2016)

Page | 51

The European Commission reports on Albania to the threshold of negotiating SAA Albania before 2002, were focused mainly on with the EU.71 In spite of this relative formal the development and achievement of the progress, there was ‘considerable lack of minimum conditions of a functioning implementing capacity’ in ‘almost every area democracy and free market economy rather where Albania would be expected to meet its than the approximation of national obligations within the SAA’.72 During 2003, legislation and policies to European only ‘limited progress was made by Albania’ standards. Therefore, the reports did not in terms of formal adoption, since the refer to compliance with the EU acquis. If we recommendations of the Stabilization and refer to Albania’s starting point, although the Association Report of 2002 were only reforms related to the European integration partially fulfilled.73 Moreover, Albania still have been far from the level of achievements was lacking the ability to implement the in the Central and Eastern Europe, the provisions of a future agreement, country’s performance in 2002 compared to considering ‘the current pace of previous years is estimated to have achieved implementation of the reforms, the relative but sufficient progress bringing negotiations threatened to be prolonged and

71 European Commission (2002) “The Stabilisation and 73 European Commission (2003) “The Stabilisation and Association process for South East Europe”, First Association process for South East Europe”, Second Annual Report Brussels, 03.04.2002, COM (2002) 163 Annual Report, Brussels, 26.3.2003, COM (2003) 139 final, pg.15. final, pg.26. 72 Ibid. www.eupolicyhub.eu

postponed’.74 Progress has been limited to the level of compliance with European only a few specific areas in 2004, and many standards. Regarding the degree of its annual of the recommendations contained in the progress, during 2010-2016 Albania has had Page | 52 Stabilization and Association Report of 2003 for most policy areas only some progress, were not implemented properly.75 During and its efforts towards alignment with EU 2005 and 2006, the country has made some legislation are limited. Progress has been progress towards meeting European achieved in 68 cases, while significant standards, both in terms of adopting new progress has been achieved in only 20 cases. legislation and establishing new In other 21 cases, there is no progress at all. institutions.76 Albania during 2007 and 2008 Regarding the level of preparation for the 33 made ‘progress in approximating its chapters, the European Commission in its legislation, policies, and capacities with opinion in November 2010 assessed that in European standards’.77 But the outcome of Albania: 8 chapters were very easy to the implementation was positive only for approximate with EU legislation; 12 chapters 2007, while for 2008 the report warned were considered easy to approximate; while Albania on the need to ‘increase its efforts in for the remaining 12 chapters additional implementing the adopted laws and efforts were required to approximate as they policies.78 In 2009 and 2010, although the were considered to be difficult; whereas the results in different fields were uneven, still chapter on the environment was assessed as Albania has generally made progress in too difficult to approximate with EU aligning legislation and policies to European legislation.81 While in the last 2016 report, standards.79 Despite this formal progress, the European Commission estimates that: 5 there is still need to increase its efforts to chapters are at an early stage, for 11 chapters implement these laws and policies.80 After only a certain level of progress has been 2010, there was a deterioration regarding achieved, while for 16 chapters the

74 Ibid. MEMO/08/672 “Key findings of the progress reports 75 European Commission (2004) “The Stabilisation and on Albania, Montenegro, Bosnia and Herzegovina, Association process for South East Europe”, Third Serbia, and Kosovo” Brussels, 5 November 2008, pg.1. Annual Report, Brussels, 30.3.2004, COM (2004) 202 78 MEMO/08/672 “Key findings of the progress reports final, pg.34. on Albania, Montenegro, Bosnia and Herzegovina, 76 MEMO/05/410 “Key findings of the 2005 Progress Serbia, and Kosovo” Brussels, 5 November 2008, pg.1. Reports on Albania, Bosnia and Herzegovina, Serbia 79 MEMO/09/450 “Key findings of the progress reports and Montenegro and Kosovo” Brussels, 9 November on Albania, Montenegro, Bosnia and Herzegovina, 2005, pg.2; Serbia, and Kosovo” Brussels, 14 October 2009, pg.2; MEMO/06/412 “Key findings of the progress reports MEMO/10/553 “Key findings of the Opinion on on Kosovo and the potential candidate countries: Albania”, Brussels, 9 November 2010, pg.2. Albania, Bosnia and Herzegovina, Montenegro, 80 Ibid. Serbia” Brussels, 8 November 2006, pg.2 81 European Commission (2010) Commission Opinion 77 MEMO/07/446 “Key findings of the progress reports on Albania's application for membership of the on Kosovo and the potential candidate countries: European Union, Brussels, 9.11. 2010, COM(2010) Albania, Bosnia and Herzegovina, Montenegro, 680, pg.9-10. Serbia” Brussels, 6 November 2007, pg.1; www.eupolicyhub.eu

preparation is moderate and only one Balkan countries. The dialogue with the EU to chapter has a good level of preparation (the lift the visa regime in Western Balkan chapter on foreign policy, security and countries began in the spring of 2008 and at Page | 53 defence). 82 the end of 2010 EU assessed that Albania had In the case of Albania, regarding the successfully fulfilled the conditions for visa fulfilment of the European standards, both in liberalization.83 Most of the criteria for visa terms of adopting policies and laws and in liberalization were part of the various sub- terms of their implementation, based on the sectors of public policies related to security, data obtained from the progress reports, we migration, public order, foreign affairs, and notice only a continuous limited progress human rights issues. This explains why the except for an impetus in 2010 where entire visa liberalization process is closely adoption results improve somewhat, a trend linked to the slight progress in meeting that decline soon after. According to this European standards at that time. The visa assessment and based on the data obtained liberalization with Montenegro, Macedonia, from the Commission’s reports, Albania and Serbia in 2009 increased the credibility of could be assessed as having limited progress the process for Albania as well, inducing the in meeting with European standards. expectation that if the EU conditions are met, the ‘reward’ could be gained. REASONS FOR THE FLAWED PROGRESS WITH Whereas, in other cases, limited progress REFORMS could be explained through internal The poor performance of Albania, with the constraints, such as the non-political flawed progress, should make us think and cooperation delaying the adoption of the explore further what are the main factors legislation and other most important explaining Albania’s limited performance. In administrative barriers related to the lack of this policy paper, we will propose some of the public administration efficiency and financial arguments that are important to resources or the uneven distribution of understanding why there is a negative trend human capacities, the lack of an established in Albania’s progress with reforms, leaving practice of consultation with interest groups apart the detailed and methodological on drafting specific legislation, as well as the analysis, which should be another research inability to apply instruments of sound topic. planning and realistic evaluation which Albania’s progress has gained reflects especially on the weak momentum around 2010, the time of the visa implementation of EU policies.84 Moreover, liberalization process with the Western after 2014 no sector showed progress, and

82 See the assessment of every chapter: European 84 Hajdini, Bojana and Gentjan Skara (2017) Lost in Commission (2016) Albania 2016 Report, COM(2016) Implementation: EU Law Application in Albanian Legal 715 final. System, Journal of Legal Studies, 19 (33). 83 For more see: ESI project on Viza Liberalization http://www.esiweb.org/index.php?lang=en&id=342 www.eupolicyhub.eu

the general progress has slowed even Commission’s work program, where only further. This is also because of sectorial Serbia and Montenegro are mentioned as policies that take advantages at a certain the favourite countries for a possible Page | 54 period of times. Over the past two years, the membership in 2025.85 In the case of the justice reform has been the primary and the group of countries with belated accession, only governmental priority, which may have the costs of meeting EU conditions are high, adversely affected the progress of other since in some cases they regard sensitive policies. domestic political issues, or the country’s administrative and financial capacity is CONCLUSIONS limited. Given this generally unfavourable Overall, Albania has achieved substantial situation, delays in accession could bring transformations since the year 2000 when negative side effects on the Europeanization the European Union launched the of the country. 86 enlargement policy for the Western Balkans and recognized Albania and other countries From the analysis in this policy paper, we of the region as potential candidate note that Albania’s progress towards EU countries. These transformations are more membership is not only slow but also flawed. meaningful if we consider the initial stage in If the country continues to procrastinate which Albania started the process of on the substantial reforms needed for EU European integration. After more than 15 membership, Albania will drift away from EU years, the country not only has been and it will continuously remain at the democratized and achieved economic stagnation zone of the European integration stability, but it has also increasingly process that already harbours other progressed towards EU membership and problematic countries in the region.87 This achieving some European standards. situation has caused Albania to remain Although Albania, in principle, has the behind, and not be considered in the group prospect of EU accession, the credibility of of the forerunning countries in the region membership is far more distant than that of that have progressed towards accession, but some other countries in the region. rather aligning with the most problematic Indirectly, this is also evidenced in the recent countries such as Bosnia and Kosovo. communication of president Junker on the Stagnation, - or the continuously limited

85 European Commission (2017) State of the Union gradual accession process, the perspectives of the 2017. Letter of intent to the president of the European laggard group of countries is seriously threatened for Parliament Antonio Tajani and the prime minister of many reasons. See: Balkans in Europe Policy Advisory Estonia Jüri Ratas, Brussels, 13 September, pg.10. Group (2014) “The Unfulfilled Promise: Completing 86 Analysts see a potentially silent risk of the Western the Balkan Enlargement”, Policy Paper, Maj, pg. 12. Balkans integration process dividing countries into 87 Stratulat, Corina and Gjergji Vurmo (2012), groups according to their realistic membership Opportunity knocks: can the EU help Albania to help perspective. While a group of countries from the itself?, Policy Brief, European Policy Centre, March. Western Balkans moves forward, adhering to the www.eupolicyhub.eu

progress, - in fulfilling the membership since it will be perceived as a real scenario to conditions is problematic as there is a risk of compensate the low credibility of a fast EU deteriorating into complete regression in the membership.90 The analysis of the current Page | 55 long run. Political tensions and conflicts at all level of Albania’s compliance with EU the levels of Albanian society, between membership conditions and the causes of leadership, political parties, civil society, and such performance can help us understand media prevent effective cooperation the process and at the same time encourage between the parties and consequently any policymakers to formulate concrete rapid progress towards implementing the measures aiming to address the real reasons necessary reforms for the country’s EU behind this poor performance. Albania accession.88 Polarization and non- should seize the momentum and build upon cooperation are a major obstacle to EU good practices. In this context, it is essential membership, which must be overcome since to encourage a constructive and well- the speed and quality of progress towards EU informed public debate on the country’s membership can only be achieved through current situation as well as the likelihood of the political will of the Albanian elites, fulfilling the conditions of EU membership, increasing the administrative capacity and since political ambitions in the country presenting concrete results in the reforms cannot override reality. undertaken. On the other hand, it turns out that Albania is more likely to comply with EU legislation and policies if EU offers intermediate ‘rewards’ for the country in specific areas of public policy, like for example the visa liberalization in the case of compliance with the conditions in the justice and home affairs sector.89 Maintaining a pressure on key issues and providing benefits will legitimize the process and outcomes

88 Stern, Ulrike and Sarah Wohlfeld (2012), Albania’s Western Balkans”. Journal of European Integration 31 Long Road into the European Union: Internal political (4): 449-465. power struggle blocks central reforms, DGAP, Berlin. 90 Jano, Dorian (2016) “Compliance with EU Legislation 89 For more on the argument in all the Western in the Pre-Accession Countries of South East Europe Balkans countries see: Renner, Stephan, and Florian (2005–2011): A Fuzzy-set Qualitative Comparative Trauner (2009) “Creeping EU Membership in South‐ Analysis”. Journal of European Integration, pg.19. east Europe: The Dynamics of EU Rule Transfer to the www.eupolicyhub.eu