8 EU Enlargement: Romania and Bulgaria
| (a)
(30437)
6405/09
COM(09) 69
(b)
(30438)
6407/09
COM(09) 70
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Commission Interim Report on progress in Bulgaria under the Co-operation and Verification Regime
Commission Interim Report on progress in Romania under the Co-operation and Verification Regime
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| Legal base | —
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| Department | Foreign and Commonwealth Office
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| Basis of consideration | Minister's letter of 12 May 2009
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| Previous Committee Report | HC 19-xiv (2008-09), chapter 6 (22 April 2009) and HC 19-xii (2008-09), chapter 3 (25 March 2009); also see (29876) 12177/08 and (29877) 12182/08 HC 16-xxix (2007-08), chapter 2 (10 September 2008); (29431) 6150/08 and (29432) 6161/08 HC 16-xiii (2007-08), chapter 15 (27 February 2008); (28754) 11491/07 and (28768) 11489/07 HC 41-xxxii (2006-07), chapter 11 (25 July 2007) and (27865) 13347/06: HC 34-xxxviii (2005-06) chapter 3 (18 October 2006)
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| Discussed in Council | 23 February 2009 General Affairs and External Relations Council
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| Committee's assessment | Politically important
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| Committee's decision | Cleared
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Background
8.1 The accession negotiations with Romania and Bulgaria
were concluded in December 2004 and a Treaty of Accession was
signed on 25 April 2005. The UK ratified the Treaty on 5 April
2006.
8.2 The Commission's October 2005 and May 2006 monitoring
reports identified a number of areas where further improvements
were needed in order to meet all membership requirements, and
all of which went to the heart of a properly functioning governance
system based on the effective implementation of laws by an accountable,
independent and effective judiciary and bureaucracy. The Accession
Treaty allowed for a delay until 2008, but only if the Commission
recommended that either country was "manifestly unprepared"
for membership. The Commission's final verdict was that both countries
would be in a position to take on the responsibilities of membership
by 2007.
8.3 There were, however, still significant shortcomings, particularly
on JHA issues (for details, see our previous Reports). So, various
post-accession measures were put in place, the most crucial being
the Mechanism on Cooperation and Verification — a process
whereby, having set benchmarks on JHA issues, the Commission works
closely with both governments on steps to meet them, and reports
to the European Parliament and the Council, with the sanction
of non-recognition of judicial decisions under mutual recognition
arrangements if progress was insufficient.[26]
Accession on 1 January 2007 was now essentially a fait accompli;
however, given the range of outstanding issues and their implications
for actual and aspiring candidates, the Commission's final verdict
was debated in the European Standing Committee on 15 January 2007.[27]
8.4 Romania's benchmarks are:
— Benchmark
1 — Reform of judicial process
— Benchmark
2 — Establishment of an integrity agency
— Benchmark
3 — Investigation of high level corruption
— Benchmark
4 — Corruption, in particular within local government
8.5 Bulgaria's benchmarks are:
— Benchmark
1 — Independence/ accountability of judicial system
— Benchmark
2 — Transparency/efficiency of judicial process
— Benchmark
3 — Reform of the judiciary
— Benchmark
4 — High level corruption
— Benchmark
5 — Corruption at borders and in local government
— Benchmark
6 — Organised crime
The Commission 2009 Interim Reports
8.6 The Commission monitors progress and writes
reports every 6 months: interim reports at the start of the year
and main reports at mid-year. These are the latest interim reports
for both countries. Both are described as a technical update on
significant developments during the 6 months prior to 15 January
2009; not an assessment of progress achieved, but "limited
to measures that have either been completed or where their finalisation
can be expected".
8.7 Both are summarised in detail in our recent
Reports, together with the history of the Committee's consideration
and assessment of the process thus far.
8.8 The Bulgaria "Outlook" concludes
thus:
"The next assessment of progress by the Commission
in summer 2009 will show the extent to which Bulgaria has been
able to address the shortcomings identified by the Commission
in the reform of the judiciary and to produce convincing and tangible
results in the fight against corruption and organised crime. In
order to demonstrate systemic and irreversible change, Bulgaria
needs to show that it has put in place an autonomously functioning,
stable judiciary which is able to detect and sanction conflicts
of interests, corruption and organized crime and preserve the
rule of law. This means in particular adopting the remaining laws
needed to complete the legal system and showing through concrete
cases of indictments, trials and convictions regarding high-level
corruption and organised crime that the legal system is capable
of implementing the laws in an independent and efficient way."
8.9 The Romania "Outlook" concludes
thus:
"The next assessment of progress by the Commission
in summer 2009 will show to which extent Romania has been able
to successfully address the shortcomings identified in the reform
of the judiciary and to produce convincing and tangible results
in the fight against corruption.
"It will be crucial for Romania to achieve significant,
irreversible progress by then. Romania must demonstrate the existence
of an autonomously functioning, stable judiciary which is able
to detect and sanction corruption and preserve the rule of law.
This means in particular adopting the remaining laws needed to
modernise the legal system and showing through an expeditious
treatment of high-level corruption cases that the legal system
is capable of implementing the laws in an independent and efficient
way."
8.10 In a brief Explanatory Memorandum of 18
March 2009 the Minister for Europe at the Foreign and Commonwealth
Office (Caroline Flint) supported the Commission's proposal to
continue with the Cooperation and Verification Mechanism, saying
that "a rigorous, transparent and objective monitoring mechanism"
was "essential to support reform in Romania and Bulgaria,
as well as ensuring the integrity of EU enlargement policy"
and "that EU support — not sanctions — is the
best way to drive forward reforms."
Our assessment
8.11 We noted that, while there had been some
institutional progress, there was still a lack of results, particularly
with regard to successful prosecutions of high level corruption
cases. Notwithstanding that these reports were said by the Commission
to be technical and not assessments of progress, there was a sense
of continuing, and understandable, disappointment running through
them, which we shared. The "Outlook" sections in particular
showed just how much doubt continued to remain about the commitment
of the authorities in both countries to get to grips with issues
that had been plaguing them since before accession. Previously,
the spotlight was on Bulgaria; now, it seemed, it was Romania
that was going backwards, and that, disturbingly, parliament remained
part of the problem.
8.12 We noted similar hints in the Council Conclusions,
which called upon both countries "to intensify their efforts
in the coming months by taking all necessary steps without delay,
in particular with regard to areas highlighted in the conclusions
of the Interim reports, in order to consolidate progress already
made and calls upon them to achieve substantial and lasting results."[28]
8.13 Against this background, we found it puzzling
that the Minister had so little to say (a mere 64 words of comment),
all of which was about the process rather than what was causing
it to continue to falter. We were again left wondering how this
process was, as the Minister put it, "ensuring the integrity
of EU enlargement policy". We asked the Minister to tell
us more about what she thought was continuing to hold back real
progress in both countries.
8.14 All in all, we felt that it might be argued
that this process — which, as we have said before, seems
to have been undermined at the outset by the participation of
the parties concerned and, by virtue of beginning after accession,
to be devoid of any effective sanctions — was introduced
too late in the proceedings. The main lesson, we said, was that
this must not be the case when the readiness of Croatia, and others,
came to be judged. As both these Reports said, what was needed
— before accession, not after — was an "autonomously
functioning, stable judiciary which is able to detect and sanction
conflicts of interests, corruption and organized crime and preserve
the rule of law", with "concrete cases of indictments,
trials and convictions regarding high-level corruption and organised
crime" demonstrating that "the legal system is capable
of implementing the laws in an independent and efficient way."
We asked if the Minister agreed that this should be demonstrably
so in other candidate countries before accession takes place.
8.15 We also asked the Minister to explain why
these Reports were adopted so peremptorily, with no opportunity
for proper scrutiny and to undertake to ensure that the full monitoring
Reports are deposited in good time for proper scrutiny prior to
their consideration by the Council.
8.16 In the meantime, we retained the documents
under scrutiny.[29]
The Minister's letter of 6 April 2009
8.17 The Minister said that she agreed with the
Committee's overall assessment and shared its view of the underlying
sense of disappointment reflected in the reports. Romania and
Bulgaria both had to make significant progress before they met
the requirements of CVM and "in order to maximise the benefits
of EU membership."
8.18 With regard to the barriers to progress,
the Minister said that although some progress was being made in
both countries, it was being held back by "institutional
inertia, political point scoring, resistance to change, lack of
experience and lack of will." In Bulgaria, the influence
of organised crime was an additional complication. The only way
to tackle these was "to continue to work with Bulgaria and
Romania, provide honest and direct advice and to work closely
with EU partners and the Commission through the CVM."
8.19 With regard to the circumstances in which
the use of sanctions — or safeguards, as they are referred
to in the CVM — would be considered, the Minister said that
these intended as a last resort and were "a blunt tool";
she believed that "the regular Commission reports under the
CVM and diplomatic pressure for improvement, not least from the
UK, are useful levers."
8.20 With regard to "lessons learned from
the experience of Bulgarian and Romanian accession and in particular
how those lessons are being applied to Croatia", the Minister
noted that a new chapter covering judicial reform, fundamental
rights and anti-corruption had been introduced in the accession
negotiations, and that "I agree with the Committee that we
need to tackle the issues around judicial and public administration
reform early on in the process."
8.21 Finally, the Minister asked the Committee
to "rest assured that the full monitoring Reports will be
deposited with the Committee as soon as we have a published, final,
version."
Our further assessment
8.22 We agreed with the Minister that both Bulgaria
and Romania "have a significant amount of progress to make
before they meet the requirements of CVM." But, in our view,
this progress needed to be made not just in order for them "to
maximise the benefits of EU membership", but also for the
rest of the EU not to find itself with the benefits of enlargement
being undermined.
8.23 We noted the Minister's view that the CVM
safeguard is "a blunt tool". This reinforced our view
that if both parties — the EU and the candidate state —
were to benefit fully from accession, it was essential for the
issues that continue not to be addressed effectively by Bulgaria
and Romania to be addressed, and not early on in the process (as
the Minister put it), but (as we had put it, and with which we
invited the Minister to agree, but which she seemed reluctant
to endorse) before accession took place — the experience
with the CVM process having shown that leaving any aspect of judicial
reform, fundamental rights and anti-corruption until after accession
was an invitation to the same "institutional inertia, political
point scoring, resistance to change, lack of experience and lack
of will" that, as she said, continues to blight Bulgaria
and Romania and thus to short-change all concerned.
8.24 We also noted that the Minister still did
not explain why these Reports were adopted so peremptorily, with
no opportunity for proper scrutiny; nor were we at all assured
by what she said regarding the main Reports in the summer. Given
the overall context, we believed that the House had the right
to consider these Reports, and if necessary to have them debated,
prior to the adoption of any Conclusions by the Council, and accordingly
asked the Minister to assure us that she would ensure that they
were deposited in accordance with this request.
8.25 In the meantime, we continued to retain
the documents under scrutiny.[30]
The Minister's letter of 12 May 2009
8.26 The Minister says that she agrees with the
Committee that "it is important for long term confidence
in the EU enlargement process that post accession monitoring measures
introduced for Romania and Bulgaria are effective and result in
the successful implementation of reforms required", and says
that "the importance that the Bulgarian and Romanian governments
attach to the CVM demonstrates that it is still an important and
credible driver for reform in both countries." She continues
as follows:
"I would like to reassure the Committee that
I support the assertion that any country that wishes to join the
EU must meet clear standards on issues such as judicial reform
and independence, respect for fundamental rights and tackling
corruption. The Committee will be aware that the EU has moved
from an accession process based on target dates to a conditions
based approach. The UK is a strong supporter of enlargement based
on robust but fair conditionality. We will look closely at these
issues as part of the chapter on the judiciary and fundamental
freedoms which is a new part of the accession negotiations. We
will insist that benchmarks are set in key areas to give us confidence
that critical issues will be addressed before accession takes
place.
"I can assure you that I take the Government's
obligations in enabling the Committee to carry out its scrutiny
role very seriously. The Interim Reports from the Commission to
the European Parliament and the Council on progress in Romania
and Bulgaria under the cooperation and verification mechanism
are non-binding, non-legislative documents, but are of general
interest to the House. For this reason I was happy to deposit
the reports with the Committee and to listen to your views on
the issues they raise. I have made it clear to my officials that
the delay in providing the Explanatory Memorandum in this case
was unacceptable. The next monitoring reports will be deposited
in the libraries of both Houses as soon as we have final, published
versions and an explanatory memorandum produced to accompany them."
Conclusion
8.27 On the basis of the evidence thus far,
we find it difficult to agree that "the CVM demonstrates
that it is still an important and credible driver for reform in
both countries."
8.28 We are also puzzled when the Minister
says that "any country that wishes to join the EU must meet
clear standards on issues such as judicial reform and independence,
respect for fundamental rights and tackling corruption";
this is not the issue; that, rather, is what those standards are.
In our view, the Commission has set them out clearly in its latest
Reports on Bulgaria and Romania. The Minister still seems reluctant
to agree that it is these standards that Croatia and others should
have to meet before accession. The ambiguity is compounded when
she says that she "will insist that benchmarks are set in
key areas to give us confidence that critical issues will be addressed
before accession takes place"; given that the negotiations
are well under way and the Enlargement Commissioner is talking
of accession by the year's end, we would have thought that the
benchmarks in question would have been set long ago.
8.29 With regard to the depositing of the
next Reports, this is not a matter of choice, as the Minister
seems to imply, but a requirement under Standing Order No. 143.
We are glad that she acknowledges that the delay in providing
the Explanatory Memorandum in this case was unacceptable. We again
note our view that the House has the right to consider these Reports,
and if necessary to have them debated, prior to the adoption of
any Conclusions by the Council, and again ask the Minister to
ensure that they are deposited, with her Explanatory Memorandum,
accordingly.
8.30 We shall visit Croatia next month to
make our own assessment of the situation there. In the meantime,
we now clear the documents.
26 Commission Decision 2006/929/EC
of 13 December 2006 establishing a mechanism for cooperation and
verification of progress in Bulgaria and Romania to address specific
benchmarks in the areas of judicial reform and the fight against
corruption and organised crime (OJ No. L 354, 14.12.06, p. 56
and 58; see http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2006:354:0056:0057:EN:PDF
and http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2006:354:0058:0060:EN:PDF). Back
27
Stg Co Deb, European Standing Committee, 15 January 2007,
cols. 3-28. Back
28
Available at http://www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/en/gena/106332.pdf. Back
29
See headnote: HC 19-xii (2008-09), chapter 3 (25 March 2009). Back
30
See headnote: HC 19-xvi (2008-09), chapter 6 (22 April 2009). Back
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