The tragic event became a part of a larger trend of making journalism an unsafe profession in the EU. Namely, in October 2017, Maltese journalist Daphne Caruana Galizia was assassinated in a car bomb attack due to her reporting on corruption and money laundering in Malta. Two years later, Bulgarian journalist Viktoria Marinova, who investigated corruption and misuse of EU funds, war raped and murdered in the city of Rus. Later, however the prosecutors came to conclusion that the motive of her murder was not related to her work. Additionally, the murder of George Karaivaz in Athens in April 2021 and Dutch investigative journalist Peter R. de Vries in Amsterdam in July 2021, clearly demonstrate that the journalism has remained challenged, and freedom of media significantly violated. All of these events stressed the importance of protecting free media and highlighted the need for continued action to ensure a safe environment for journalists to carry out their work.

The following discusses the EU’s focus on media freedom aftermath the tragic events and the subsequent implications for the Western Balkan countries regarding their attempts to obtain EU membership. The article concludes by reflecting on the need to pursue the fight for democracy and core values such as freedom of speech and the press as a lifelong aim since, as we learnt from the Slovak example, it does not end with obtaining EU membership.

Media freedom at the centre of the EU’s attention

The media is often referred to as the fourth pillar of democracy due to its vital role in a functioning democratic system. A free and independent media acts as a watchdog over the actions of government and other public institutions, assisting in ensuring transparency, accountability, and the rule of law. In addition, it helps to prevent corruption and power abuse by exposing wrongdoing and holding those in power accountable. Besides that, it also provides citizens with the information they need to participate in political life and take informed decisions. Therefore, media freedom is indissociable from democracy, and along with the legislature, executive and judiciary, free and independent media are essential to a healthy and flourishing democratic society. Correspondingly, the EU does not neglect this aspect either since respecting and ensuring democratic principles is the cornerstone of the EU and the fundamental precondition to becoming a member state.[1]

After the noted assassination of journalists and due to the generally growing concerns over the safety of journalists and the deterioration of their work conditions, the EU has made several steps to further underlie the necessity to strengthen media freedom and protect independent journalism in Europe. The so-called Anti-SLAPP Directive (Strategic lawsuits against public participation) stands out. It aims to protect journalists, human rights defenders or anyone trying to exercise the freedom of expression related to public interest issues from abusive and manifestly unfounded lawsuits. Although the Directive is meant to apply only to cases with a cross-border dimension, it introduces guidance for Member States on how to effectively tackle the SLAPP cases within their territory and, thus, which measures should be taken in the area of criminal or administrative law. SLAPP lawsuits target not only media outlets but individual journalists to discourage them from critical reporting by saddling them with the high cost of legal defence and the risk of fines or enormous compensation payments. Since this trend of suing of journalists has significantly increased within Europe, the stakeholders agree on positive aspects of the step being taken by the EU. However, it’s only beginning of its attempts to improve the European media space, and the implementation of the guide embodied in the Directive for the handling those cases without international overlap, to a large extent, depends on the willingness of Member States to acknowledge the severity of the problem the SLAPPs represent.

As implied above, the proposal, such as the presented Directive, undoubtedly means a step in a good direction regarding protecting media freedom and ensuring a safe and free environment for journalists to carry out their job; however, the EU remains limited in pursuing more meaningful action due to a lack of competencies in this area. For instance, the European Media Freedom Act (EMFA) proposal, introduces a common European framework for ensuring media freedom and media pluralism. EMFA has several aims, among which is, for example, to protect journalists and their sources from surveillance technologies. It also focuses on media ownership and transparency to strengthen the editorial offices’ independence and prevent state interference in media. Overall, the comprehensive proposal covers various aspects of media functioning and, from a long-term perspective, has the potential to significantly shape the European media space and the way media’s primary watchdog role is exercised. However, in this matter, the actual competencies limit the EU in legislating on media issues which raised many questions on legal basis of the Regulation since regulating the media-related policies is generally regarded as a national competence. Despite the several shortcomings as, for example its reference to internal market or insufficiently defined control mechanisms, it is a clearly positive sign and a welcomed step by many stakeholders proving that the EU does not want to remain blind to the increasing phenomena of media capture as well as rising concerns about media plurality and independence.

Considering the EU member states continue to face notable challenges while the EU is stepping up efforts to solidify protection measures, the Western Balkan countries will be expected, more than ever, to demonstrate a solid track record in guaranteeing media freedom and journalist safety during their accession processes.[2]  Despite steady progress in some areas, all countries in the region, as noted by the European Commission’s annual reports and European Parliament’s rapporteurs for WB6, still struggle with issues such as political interference in the media, questionable media ownership, and last but not least, the persistent pressure and threats against journalists complemented by a lack of adequate protection. According to the World Press Freedom Index from 2022, only North Macedonia and Montenegro reached slight progress in media freedom. On the contrary, the Western Balkans, as such, scored lower comparing the previous year, while all six countries remained in the “problematic press freedom” category. Every year, there are reported verbal or physical attacks against journalists and media outlets and reported cases when journalists are subject to legal proceedings, financial pressure, or different kinds of aggravation of their work conditions. Therefore, if the Western Balkans want to progress on their EU path, they must show their genuine attempt to reverse this negative trend, especially since the need to protect media freedom which has never seemed a more alarming and burning issue from the EU’s perspective as it is today. Although no journalists were assassinated, the Western Balkans have nevertheless yet to demonstrate their unwavering commitment to building a secure and supportive environment for journalists to perform their duties without fear of harm.

Pursuing democracy as a lifetime goal 

Arguably, the murder of Ján Kuciak and multiple attacks against journalists, did not cast a good light on the EU as one the most respected promoter of democracy. Indeed, the severe violation of human rights and freedom of media within the EU might have negative consequences for the image of the EU in the Western Balkans and can raise questions about the EU’s commitment to these values. After all, why should the candidate countries perform ‘stricter than the rule book’ and adhere to these democratic principles to the extent that even the Member States do not comply? Although some may be tempted to think this way, it is important to highlight that the fight for democracy, the rule of law and fundamental rights is a demanding and lifelong task for each country, as they are constantly under threat and can be undermined if not properly protected. Membership in any organisation or in the EU does not mean that the task is accomplished. Instead of opting for passivity in the light of EU’s own challenges, the Western Balkans should take concrete steps and seize the moment to showcase to the EU, including the sceptic member states, that they share the EU’s overall concern for the media freedom and protection of journalists.

For instance, Slovakia’s experience in the aftermath of the assassination could provide valuable insights and lessons for the Western Balkans. The murder of Jan Kuciak and the follow-up investigation underpinned the crucial role of free media in contemporary democracies. The investigation of the murder uncovered several other serious and unrelated cases of corruption and severe violations of the rule of law. Later, it led to the indictment and prosecution of tens of people from the prosecutor’s office, police, judiciary, state administration and high politics. Eventually, it also led to an entire alternation of political elites who managed to untie the hands of the police and investigators. All in all, one case led to a chain of reactions that has had a positive spillover effect on different yet inter-linked areas that contribute to the overall level of democracy and rule of law. Therefore, by engaging in protecting media freedoms, the Western Balkans would create a window of opportunity to finally show credible progress in key areas that are crucial for their future membership in the EU.

Finally, only five years have passed since the murder, which shook Slovak society, but the positive spillover effect has slowly faded. Today, Slovakia faces the potential comeback of the former ruling party SMER-SD considered to be accountable for most of the corruption scandals unveiled aftermath of the murder of Ján Kuciak. Moreover, regardless the political shift, there has been a visible increase in the number of public attacks on media outlets and individual journalists by political figures recently. The reversal of a positive trend triggered by the tragic event unequivocally stressed that the fight for democracy and fundamental rights is truly a lifetime task. Although the reversal occurred within the past two years might be explained by several factors like improper pandemic management, the consequences of the war in Ukraine, general dissatisfaction with the performance of the current political elites or exceptionally high susceptibility of Slovaks to trust in fake news and conspiracies, it is evident that fight against corruption and media freedom is not the hot topic anymore. Therefore, unless the citizens insist on strictly following democratic principles and create adequate and persistent pressure on their political representatives to comply with democratic standards, society will continue being trapped in the circles of undemocratic practices. Indeed, as proven by Slovakia’s case, the circle might be broken by a major, if not tragic, event; however, citizens should not forget too fast and put constant pressure on their political representatives. Strong and independent media is a powerful and efficient tool to assist with this; thus, it should be primarily in the citizens’ interest to protect and stand for them.

The author is Romana Burianová from Slovakia, currently an intern at European Policy Centre – CEP.

[1] The freedom of media and expression as essential element of functioning democracies is also implicitly entrenched within the EU core values under Article 2 of the Treaty of the EU and embodied in Article 11 of the EU Charter on Fundamental Rights.

[2] To emphasise genuine commitment to ensuring respect for the core democratic principles not only with the EU but also beyond the EU’s borders, it place the Fundamentals at the centre of the accession process. The conditionality related to democratic performance of a country has been part of the enlargement policy towards the aspiring countries since the adoption of the so-called Copenhagen criteria. Moreover, with the introduction of the Revised enlargement methodology in 2020, media freedom and freedom of expression (as part of Chapter 23 – Judiciary and Fundamental Rights) was incorporated in the Fundamentals cluster, thus reaffirming their importance.

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Apropos of the latest report assessing the progress of Serbia in the accession process, the EC was not a herald of good news. Besides limited progress in the areas of the rule of law, no progress was noted in Chapter 5 – Public Procurement – a crucial component of the Fundamentals. Despite the early opening of this chapter in 2016, Serbia stayed moderately prepared throughout the years. Considering the limited progress reported in 2021, the latest report shows an unwelcome downgrade in addressing corruption and routing of the overall integration process. Moreover, as the report indicates, the rising number of exemptions and irregularities within public procurement might even lead to backsliding in this area. Concerning public procurement as a policy area of high importance, together with the strategic goal of Serbia to become a full-fledged member of the EU, such a scenario would represent a notable step backwards. The following analyses whether the further inability of Serbia to fulfil the EU’s requirements in this chapter can potentially endanger the overall pace of accession negotiations.

Public procurement under the microscope 

Public procurement, a pivotal instrument for implementing government budgets, is widely susceptible to corruption or misuse of public finance. Via public procurement, the state and local authorities materialise their ideas through the final purchase of works, goods, or services to maximise value for money. Since 14% of the EU’s GDP is spent on purchasing services, works, and supplies by public authorities yearly, the susceptibility of public procurement to corruption and malpractice represents a high risk for misuse of the EU’s finances. According to the EC, improving the process can yield massive savings, whilst only by 1% efficiency gain could save 20 billion euros per year. Moreover, public procurement is closely linked to the Single Market principles, making it a highly important policy area. Thus, the European Union (EU) pays considerable attention to this policy area, not only in order to prevent the misuse of EU funds but also to protect the Single Market. In this context, the necessity to ensure compliance with critical principles such as equal treatment, non-discrimination, transparency, efficiency, and proportionality have been correspondingly translated into accession conditionality.

Due to risks related to the harmful practice in public procurement, the EU introduced minimum harmonised rules primarily to prevent the misuse of EU funds, secure adherence to Single Market principles and ensure a level playing field for business entities across its territory. The legal basis for public procurement in the EU Member States is regulated by the Directive on public procurement and repealing. The Directive falls within EU acquis, hence, compliance with the EU standards in public procurement also became an integral part of the enlargement process and accession negotiations. Along with the need to align with general public procurement principles, the acquis specifies review rules, regulations and the availability of remedies. Moreover, it envisages the strengthening of administrative capacities and the creation of specialised implementing bodies. The European Commission regularly monitors the performance of the member and candidate states in this area and provides them with precise recommendations on improving public procurement practice.

The EU’s high emphasis on public procurement is visible in the Revised Enlargement Methodology (also known as New Methodology). In fact, public procurement acquired an elevated status, as it was introduced as part of the Fundamentals, together with other essential chapters and policy areas. In order to reinforce the credibility of the accession process, Fundamentals emerge at the centre of accession negotiations. As the new methodology reaffirms, the negotiations on the Fundamentals will be opened first and closed last, while the progress in these areas will determine the overall pace of negotiations. While the rewarding progress was improved, the EU also introduced the sanction mechanism. The latter enables suspending or reversing the accession process in case of extended/long stagnation or backsliding in reform implementation and compliance with the acquis.

Serbia struggles with addressing public procurement deficiencies

The last report on Serbia repeatedly pointed out the severe shortcomings related to public procurement. While the EC had acknowledged limited progress in the 2021 report, within the latest reporting period, Serbia did not address any EC’s recommendations, and hence it did not show any progress. Although Serbia adopted the revised legislative framework in 2019, which essentially corresponds to the aims and standards of the EU defined under the Directive on public procurement, experts report that Serbia has not managed to address major issues in practice. Additionally, Serbia’s current level of preparedness in Chapter 5 has not changed in the past five years. For Serbia to close the chapter, it will need to address the interim benchmarks, which seems very precarious at the moment since so far it has failed to fulfil any of them. If the trends in this area remain unchanged in the following period, the lack of compliance and inability to address recommendations creates room for further estrangement from EU integration.

A detailed overview of Serbia’s obligations showcases that a new approach will be needed for Serbia to get closer to closing Chapter 5 anytime soon. Namely, the EC repeatedly articulates the same reservations related to public procurement year by year. According to the EC, in the case of Serbia highly problematic seems to be the Law on special procedures for linear infrastructure projects due to the lack of clarity on selection procedures and transparency, while it undermines the revised law on public procurement and needs to be repealed. In this context, the most concerning issue raised by the EC is the high value of procurement decisions exempted from the law regarding projects of strategic importance. The latter is often associated with intergovernmental or interstate agreements, which the Law envisages. Moreover, the essentials of such procurements (such as design or related documents) exempted from applying the Law are frequently made confidential. It may result in a lack of transparency and hypothetically lead to malpractice. After all, it might be translated into a loss of accountability which can cause an overall decrease in the public procurement procedure’s credibility.

Furthermore, experts alert that Serbian authorities tend to overuse exempted procurement procedures also in cases where is no legal ground for that. that. The evident rise of urgent and closed procedures was observed in connection with the outbreak of COVID-19 pandemic. Even though Serbia has stated the cease of the state of emergency in relation to the pandemic, these procedures are still frequently used without satisfactory justification. Exemptions from applying the public procurement law represented 67% of the cumulative value of public procurement contracts in 2021. The value of such exempted procurements rocketed by 88% compared to 2020. Therefore, it might be seen as a systematic and conscious effort to avoid applying procedures embodied in Law on public procurement and to favour direct contracting instead which is not in accordance with EU acquis and principles of fair competition and transparency, however, the current legal framework offers the legal basis for these exemptions.

Shortcomings in the public procurement process not only may lead to high costs of loss due to misuse of public finance or its mismanagement but also contradict to EU acquis. It includes ensuring adequate implementation of activities based on essential principles in public procurement, such as securing competitiveness, transparent procedure or equal access of all business entities. According to the report, Serbia recorded a significant increase in public procurement in terms of the total value of contracts by 48% between 2020 and 2021 as well as in its share of GDP. Simultaneously, the number of irregularities and discrepancies increased as well. For 2021, the State Audit Institution of Serbia in its annual report revealed irregularities related to public procurement in 1359 cases for 53.46 billion. Adherence to legal procedures and basic principles in public procurement is in the interest of both Serbian citizens and the EU, especially when EU funds are included, but also when considering the potential access of the country to the single market.

Besides proven avoidance of applying the Law on public procurement corresponding to the EU standards and detection of numerous irregularities within the process, there is a downward trend in the number of bids per tender. Ensuring a sufficient level of competition is a vital part of public procurement. Along with the transparency increase, it also secures better control of the process by the participants themselves. In addition, fair competition is desirable when choosing the best offer regarding price, quality and other relevant criteria. The average number of bids per tender decreased from 2.6 in 2020 to 2.5 in 2021, which is the lowest value in the past 5 years and displays a significant decline from 3 bids per tender in 2017. While the 2019 law has revoked the obligation for requesting at least three bids in case of‚ small value purchases‘, the threshold for bidders was significantly increased and thus notably reduced the number of procurements. According to the experts, Serbia, with its more than 50% share in public procurement when only one bidder participates, is significantly behind member states and countries in the Western Balkan region. Concerning the notable amount of money spent via public procurement yearly, a lower number of bids may reflect the overall low credibility of the authorities and the process itself. This may also show the common practice of setting irrelevant criteria or numerous technical specifications of tenders in order to restrict competition and discourage other potential participants in favour of a particular tenderer.

At the same time, the primary aims of public procurement are not followed either. For instance, to maximise value for money. While utilising the best price-quality ratio criterion has remained low at 10%, the lowest price criterion remained dominant in about 90% of cases which might negatively affect the quality of the outcome and ultimately lead to higher product lifecycle costs for citizens due to lower quality or for example higher energy consumption. Excessive utilising the lowest price criterion might raise concerns since it has several risks, as already indicated. Besides higher costs of the procured goods lifecycle signifying cost-inefficiency, it can imply a waste of resources in general and, in the end, unsound public finance management. On top of that, it also offers more opportunities for malpractice. For example, contracting with a preferable bidder or any misbehaviour can be covered up by saving public finance. Civil society has already alerted that all these indicators are vital in assessing the risks of corruption and unfair treatment of bidders in public procurement. All mentioned above implies Serbia’s inability or rather unwillingness to ensure sufficient transparency, efficiency, competitiveness and equality of business entities by the requested level, which contradicts the EU’s essential principles of public procurement.

Conclusion

Given the moderate preparedness over the years and considering no progress reported in 2022 with the high risk of future backsliding, the Government of Serbia should be more transparent regarding the commitments to fulfil interim benchmarks embodied in Chapter 5. Although the legal framework regulating public procurement in principle seems to comply with the EU standards, in practice, the legal regulations are often bypassed, thus the EU law too. Any notable stagnation and backsliding within the Fundamentals cluster endangers the overall speed of the accession process. Persistent deficiencies in the practice of public procurement procedures jeopardise the closure of the chapter. Thus, the Government is advised to further adjust the legislation in this area to the acquis without delay and to ensure a better control mechanism of the process with emphasis on compliance with essential principles of fair competition, non-discrimination and transparency. Besides ensuring full implementation of the revised legal amendments to public procurement law into practice and its full alignment with the Directive, it is necessary to secure more effective control mechanisms and apply standard public procurement procedures in as many cases as possible.

Civil society also highlights the importance of safeguarding this area. One example of a notable initiative in that direction is the Regional platform for Public-Private Partnership for Good Governance (R2G4P), as it provides policymakers and accountable institutions with tangible recommendations on how to improve the process of public procurement and prevent the misuse of public finance based on good practice. On the one hand, the Government has practical tools to overcome severe issues resulting from the insufficient implementation of the legal framework into practice and maintenance of discriminatory and non-transparent practices in public procurement. On the other hand, however, civil society might offer its capacities for expertise and efficient control. Thus, the closer cooperation of these subjects is highly desirable.

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The blog was prepared within the Regional Platform for Public-Private Partnership for Good Governance (R2G4P). Analysis on this topic will be included in the Report on Good Governance in Southern and Eastern Europe (SEE), which will be published on the R2G4P website.

The author is currently an intern at the European Policy Centre – CEP.

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