House of Commons - European Scrutiny Committee

European Scrutiny Committee Contents

22 EU Enlargement: Romania and Bulgaria

(a) (30828) 12386/09 + ADD 1 COM(09) 401

(b) (30829) 12388/09 + ADD 1 COM(09) 402

Commission Report on progress in Bulgaria under the Co-operation and Verification Regime

Commission Report on progress in Romania under the Co-operation and Verification Regime

Legal base —

Documents originated 22 July 2009

Deposited in Parliament 28 July 2009

Department Foreign and Commonwealth Office

Basis of consideration EM and Minister's letter of 19 August 2009

Previous Committee Report None; but see (30347) and (30348); 6405/09 and 6407/09: HC 19-xvii (2008-09), chapter 8 (13 May 2009), 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)

To be discussed in Council 14-15 September 2009 General Affairs and External Relations Council

Committee's assessment Politically important

Committee's decision Cleared

Background

22.1 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.

22.2 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.

22.3 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.[77] 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.[78]

22.4 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

22.5 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

Previous consideration

22.6 The Commission monitors progress and writes reports every 6 months: interim reports at the start of the year and main reports at mid-year. We considered the February interim reports on three occasions earlier this year. Both were 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".

22.7 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.

22.8 The Bulgaria "Outlook" concluded 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."

22.9 The Romania "Outlook" concluded 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."

22.10 In a brief 18 March 2009 Explanatory Memorandum the then 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

22.11 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.

22.12 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."[79]

22.13 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.

22.14 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.

22.15 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.

22.16 In the meantime, we retained the documents under scrutiny.[80]

The then Minister's letter of 6 April 2009

22.17 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."

22.18 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."

22.19 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."

22.20 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."

22.21 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

22.22 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.

22.23 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.

22.24 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.

22.25 In the meantime, we continued to retain the documents under scrutiny.[81]

The then Minister's letter of 12 May 2009

22.26 The Minister agreed 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 said 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 also supported the assertion that any country that wished to join the EU must meet clear standards on issues such as judicial reform and independence, respect for fundamental rights and tackling corruption. She noted that the EU had moved "from an accession process based on target dates to a conditions based approach", and described the UK as "a strong supporter of enlargement based on robust but fair conditionality". She said that she would 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, and insist that benchmarks are set in key areas to give the Government confidence that critical issues will be addressed before accession takes place.

22.27 The then Minister went on to assure the Committee that she took "the Government's obligations in enabling the Committee to carry out its scrutiny role very seriously." She described these Interim Reports from the Commission as "non-binding, non-legislative documents … of general interest to the House", as a result of which she "was happy to deposit the reports with the Committee and to listen to your views on the issues they raise." She said that she had made it clear to her officials that the delay in providing the Explanatory Memorandum in this case was unacceptable, and that the next monitoring reports "would be deposited in the libraries of both Houses as soon as we have final, published versions and an explanatory memorandum produced to accompany them."

Our further assessment

22.28 On the basis of the evidence thus far, we found it difficult to agree that "the CVM demonstrates that it is still an important and credible driver for reform in both countries."

22.29 We were also puzzled that the then Minister meant by saying 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, we felt, was not the issue; that, rather, was what those standards are. In our view, the Commission had set them out clearly in its latest interim Reports. The Minister still seemed reluctant to agree that it was these standards that Croatia and others should have to meet before accession. The ambiguity was compounded when she said 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 were well under way and the Enlargement Commissioner was talking of accession by the year's end, we thought that the benchmarks in question would have been set long ago.

22.30 With regard to the depositing of the next Reports, we noted that this was not a matter of choice, as the Minister seemed to imply, but a requirement under the Standing Order. We were glad that she acknowledged that the delay in providing the Explanatory Memorandum in this case was unacceptable. We again noted our view 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 again asked the Minister to ensure that they were deposited, with her Explanatory Memorandum, accordingly.

22.31 We also noted that we were to visit Croatia the following month to make our own assessment of the situation there. In the meantime, we cleared the documents.[82]

The Commission's main 2009 Reports

22.32 These were published on 22 July 2009. They are summarised and analysed in her Explanatory Memorandum of 19 August 2009 by the Minister for Europe at the Foreign and Commonwealth Office (Baroness Kinnock of Holyhead) as follows:

BULGARIA

"In Bulgaria, the new government of Boyko Borissov took office at the end of July, and has pledged to address the problems of organised crime and corruption, and to make an immediate start by implementing the recommendations in the Commission report. There are some reasons for cautious optimism, but as before they key will be results which the new government is able to achieve.

"The Commission's report acknowledges that there has been some new momentum in Bulgaria's efforts to improve the judiciary and combat corruption since the last report. The report also notes that the existence of organised crime and corruption in Bulgaria is no longer denied and efforts are being made to tackle these problems. However, the efforts made have had limited effect and they have not been backed up by a broad political consensus. Organisational reform to tackle organised crime and corruption has only been successful for the fight against corruption as joint teams have been set up for this purpose. The report finds that there is a lack of initiative in tackling corruption in vulnerable areas such as health and education. Profound reform of the judiciary is still to begin. The inspectorate of the Supreme Judicial Council has started to develop an encouraging track record in investigations, however overall the functioning of the judiciary is still hampered by its current complexity, formality and by being subject to lengthy delays.

"The technical report's findings on each of the 6 benchmarks for Bulgaria can be summarised as follows:

"Benchmark 1 — Independence/ accountability of judicial system

"The report finds that Bulgaria has created the basis for an independent and accountable judicial system. The Inspectorate to the Supreme Judicial Council has achieved an encouraging track record in investigating disciplinary violations and systematic weaknesses of judicial practice since becoming fully operational at the end of May 2008. Some of the findings of the Inspectorate have resulted in improved judicial practice or led to interpretive decisions by the Supreme Court of Cassation. The inspectorate has continued to fulfil its plan of scheduled inspections, resulting in the opening of several disciplinary cases since June 2008 and in a large number of recommendations to improve judicial practice. The report finds that in most cases the sanctions proposed by the inspectorate are confirmed by the Supreme Judicial Council (SJC) as the sanctioning body for disciplinary recommendations, but that in some cases disagreements have emerged. The report finds that the SJC should assure systematic follow-up to the general and thematic inspections of the inspectorate.

"Benchmark 2 — Transparency and efficiency of judicial process

"The report states that criminal justice in Bulgaria suffers from an outdated Penal Code and over formalistic Penal Procedure Code. Bulgaria has formulated a strategy for a new penal policy to address the shortcomings of the Penal Code, however in the last 12 months this has resulted in only relatively minor amendments.

"Some technical amendments were made to the Penal Procedure Code in December 2008, but these do not address systematic procedural weaknesses and flaws in the Bulgarian judicial process. The report recommends that Bulgaria should develop and implement a convincing monitoring mechanism to assess the impact of the Penal Procedure Code on judicial efficiency. The Law on Amnesty introduced on 22 April 2009 is intended to reduce the workload of the justice system, however the report notes that including abuse of public office (when committed by negligence) in the amnesty sends mixed messages at a time when systematic fraud with EU funds is under investigation. In the pre-trial phase, the report finds that, despite legal clarification, there continues to be overlap of competences between different law enforcement authorities. However, the creation of joint teams has seen first successes, particularly in the prosecution of EU fraud. The report also states that there continues to be divergence in the application of the law between courts and that equal application of the law should be promoted by the Supreme Judicial Council and the Supreme Cassation Court. With regard to the Administrative Procedure Code (APC), the report finds that the monitoring system for the implementation of the APC is mature, with the frequency of inspections having increased in the last year. New criteria for monitoring the Civil Procedure Code (CPC) have been in place since August 2008. However, the report concludes that the new CPC has not achieved the expected gains in efficiency, with the slow enforcement of court orders the main weakness. Finally, the report notes that once adopted the draft Statutory Instruments Act should improve the general quality of lawmaking through codification of the legislative process and clear rules for transparency.

"Benchmark 3 — Reform of the judiciary

"The Supreme Judicial Council (SJC) has demonstrated an increasingly pro-active role in addressing the weaknesses of the Bulgarian judicial process by following up on delays to high profile cases, and has established a list of recommendations to speed up the process for cases of high public interest. However, the SJC has not yet adopted an unequivocal pro-reform agenda, having failed to demonstrate that the selection procedure for several senior appointments such as senior magistrates was conducted in a way that was not characterised by partisan decisions and influence. It therefore notes that the standards of transparency and professionalism applied by the SJC should be reviewed. A unified code of ethics for magistrates was adopted on 20 May.

"Benchmark 4 — High level corruption

"The report finds that the reorganisation of the prosecution office regarding the prosecution of fraud with EU funds has been successful, resulting in an efficient organisation and demonstrating that progress can be made on this issue. However, it also notes that this success has not been extended to other areas and that the capacity of law enforcement agencies to deal with high level corruption on a large scale has not improved over the last 12 months. Improvements have been made to the legal environment for the fight against fraud, including an increase in penalties for EU fraud and the adoption of a law on the prevention and detection of conflicts of interest, but it is not possible yet to assess impact of this legislation.

"Bulgaria approached the Commission for advice on the conflict of interest law, however it has not taken on board all of the Commission's recommendations. A useful series of legal amendments has been discussed to improve horizontal screening of legislation, enabling more effective protection against fraud and corruption, and work on this needs to continue. The report also notes that it is important for Bulgaria to improve the capacity of various administrative bodies which should be acting pro-actively in the enforcement of the law and the prevention of fraud and corruption.

"Benchmark 5 — Corruption at borders and in local government

"The report notes that Bulgaria has implemented a number of preventative measures over the last 12 months, including updating the National Revenue Agency's IT to enable it to act more efficiently. Bulgaria has also taken steps to strengthen the anti-corruption committee at the Council of Ministers with the Deputy Prime Minister now in the chair coordinating anti-corruption at a central level. However, the report also finds that effective action to prevent corruption in vulnerable sectors and at a local level has not yet been implemented and that an increase in staff in the relevant inspectorates is needed to achieve more systematic progress. International evaluations by the World Bank show little progress in the perception of corruption in Bulgaria. The law prohibiting land swaps was passed in January 2009.

Benchmark 6 — Organised crime

"Bulgaria has reorganised the prosecution of organised crime following the Commission's last full reports, however no permanent joint teams have been created on organised crime as happened on the prosecution of EU fraud. Bulgaria has indicated that the current set up of ad hoc teams would have to be replaced by a permanent structure in the near future. Changes have also been made to methodology, with the prosecution pro-actively targeting a limited number of high profile cases. There report notes that there are some encouraging signs from this pragmatic strategy, but that its success will depend on whether or not it brings about convictions for more serious offences. The report notes that progress by the Commission for the forfeiture of criminal assets has improved significantly since mid 2008 with 130 requests to freeze assets. However problems still remain and a legal amendment to improve the efficiency of freezing assets was rejected by a wide majority across party lines."

Romania

"The report notes that the Romanian Government, supported by the prosecution agency and the judiciary, has reacted effectively to address the concerns noted in the February Interim report. However, it also that there is not a sense of an unequivocal cross party commitment to drive on reforms. The adoption of the two Criminal and Civil Codes in June 2009 was an important expression of political commitment to the reforms, but these cannot come into force without the respective procedural Codes which have to follow the normal parliamentary procedure and this is not likely to be the case until 2011.

"The report notes that reform of the judiciary has been taken forward by the adoption of a new Human Resource Strategy but that this has suffered from budgetary and personnel difficulties. On local corruption there has been a commendable initiative of exchanges of best practice between the different local prosecution offices and the prioritisation of vulnerable sectors. The National Integrity Agency is operational and has produced some good results. However, it will not be until the results of the first cases regarding unjustified wealth and conflicts of interest are known that the actual impact of the Agency can be fully assessed.

"The technical report's findings on each of the 4 benchmarks for Romania can be summarised as follows:

"Benchmark 1 — Reform of judicial process

"In the area of jurisprudence, the report notes that the appeal in the interest of the law, determined by the High Court of Cassation and Justice (HCCJ) is the most tangible tool in enforcing a coherent jurisprudence. However, the procedures are restrictive and time consuming and the fact that the HCCJ sometimes acts as a third or first degree of jurisdiction also undermines the efficiency and transparency of the mechanism. The Human Resource Strategy of the Superior Council of Magistracy (SCM) has so far failed to deliver satisfactory results and despite some small forward steps significant work remains to be done in staffing. There has been some restructuring of the Public Ministry but their efforts have been hampered by the fact that staffing etc is handled by the SCM. The report notes that the Government has prioritised the finalisation of the four criminal and procedure codes. The Ministry of Justice has established a working group to undertake an impact assessment on all four codes, which will be crucially important in ensuring that the new Procedure Codes deliver real improvements. The SCM has taken elementary steps towards enhancing its transparency and accountability. However, this has been undermined by the incomplete publication of agenda items and decisions. The evaluation mechanism to assess magistrates has yet to demonstrate that it is effective. On judicial inspection, the report finds that the recruitment process appears still to favour recruits from Bucharest. New rules preventing inspectors inspecting offices where they have previously worked should help to prevent conflicts of interest.

"Benchmark 2 — Establishment of an integrity agency

"The report finds that the number of cases being taken on and completed by the National Integrity Agency (ANI) has increased significantly in the last year, with 68 files having been referred to the competent institutions for sanctions or criminal investigation as of 22 May. The initial results of the ANI in appeals made against its determinations of incompatibilities and conflicts of interest are promising, however at the time of writing the report none of the cases regarding applications by the ANI for confiscation of unjustified wealth had yet reached a first decision, preventing a comprehensive assessment of its performance in this area. The report finds that there are indications that the existence of the ANI is having a preventative effect.

"Questions also remain over the effect of the ANI's legal framework on its ability to achieve its objectives and operate free from external influence.

"Benchmark 3 — Investigation of high level corruption

"The National Anticorruption Directorate (DNA) has maintained a good track record of investigations into high level corruption and cases sent to trial include a former Prime Minister and current and former Members of Parliament, including a Minister. The DNA has demonstrated a positive non-partisan track record in dealing with high level corruption. However, the report notes that problems remain, with both Parliamentary procedures and the judicial process subject to delays. High level trials remain lengthy as a result of defence attorneys' requests for delays, often on the basis of exceptions of unconstitutionality. A draft law that would have removed the suspension of trials while the Constitutional Court decides on exceptions on unconstitutionality was rejected by the Senate on 4 May 2009. The report also notes that those cases at the highest level of public interest have failed even to reach a preliminary decision, let along a final decision. There are also concerns over the consistency of sentencing, although some of these concerns will be addressed by the new Criminal Code. A bilateral project involving judges from the UK has contributed to a study on sentencing and may lead to the HCCJ issuing a ruling on interpretative guidance for sentencing in corruption cases. Finally, the report states that the stability of the anti-corruption framework remains cause for concern, particularly the attempt by Parliament to change the nomination and revocation procedures for senior prosecutor positions.

"Benchmark 4 — Corruption, in particular within local government

"There has been some progress on individual measures taken under the National Anti-Corruption Strategy but a complete assessment is not possible and detailed results are not available. The steering committee tasked to oversee the strategy has met only twice in the last year. EU funded awareness raising campaigns, supplemented by other initiatives, have led to perception surveys showing increased awareness of, and confidence in, the anti-corruption activities of key institutions. However, surveys also highlight continued high levels of distrust. The National Integrity Centre and the National Agency of Civil Servants have continued their work in tackling corruption and significant efforts have also been made to strengthen the law enforcement and prosecutorial response to corruption. The report finds that it is too early to assess fully the results of the efforts by these organisations and others but that the police are reporting an increase in intelligence leads and notifications to prosecutors' offices."

The Government's view

22.33 The Minister welcomes what she describes as "the Commission's thorough reports." She agrees that "at a technical level some progress has been made" but also notes that "there are serious, continuing problems which need to be addressed by the steps set out in the reports." She says that "we urge both countries to tackle the deficiencies noted in these reports and endorse the Commission's emphasis on the importance of there being a consensus of political will to reform the judiciary and tackle corruption", which "will benefit the people of Bulgaria, Romania and all EU Member States."

22.34 The Minister also strongly supports "the Commission's view the mechanism will need to continue until all the benchmarks have been fulfilled and that this is likely to be a long-term process", and concludes as follows:

"In both countries, the continuation of a rigorous and transparent monitoring process is crucial to supporting progress on the essential reforms needed before Bulgarian and Romanian citizens can realise the full benefits of EU membership. The Government also agrees with the Commission that the mechanism should be regarded in its entirety rather than as a checklist of individual benchmarks. The Government shares the view of the Commission that the conditions for invoking the safeguard clauses in the Accession Treaties have not been met. The time limit on the safeguard clauses is not linked to the mechanism, which was never intended to follow a fixed period."

The Minister's letter of 19 August 2009

22.35 In her separate letter, the Minister for Europe "welcomes these balanced and thorough reports from the Commission", which she says "note that both countries have made some technical steps in the right direction since the February interim reports [but] … also recognise that a number of serious shortcomings persist in both countries, and call on the Bulgarian and Romanian Governments to demonstrate the strong political will and commitment to reform that is needed to deliver tangible and sustained results." The Minister also reiterates her full support for the recommendation "that the mechanism must continue until such a time as it can be lifted entirely".

22.36 The Minister then goes on to note the Committee's concerns in its letter to her of 21 July about EU business during the summer recess, regarding its capacity to scrutinise the reports ahead of the likely adoption of Council Conclusions in September. The Minister again says that "the Government takes its obligations in enabling the Committee to carry out its scrutiny role very seriously and, in accordance with the Committee's earlier request; we are depositing the reports and explanatory memorandum at the earliest possible opportunity." She continues as follows:

"I recognise that, in practice, the coincidence of the publication of the reports with the Parliamentary recess will limit the Committee's ability to scrutinise the reports ahead of the adoption of Council Conclusions. However, the timing of publication of these reports is a matter for the Commission and is not subject to alteration by requests from individual Member States. In addition, because these reports are non-legislative and non-binding documents they are not formally subject to scrutiny and, as such, the Government is unable to use its Parliamentary reserve to delay the release of the reports. This is also the case with the adoption of Council Conclusions, the timetable for which is set by the Presidency.

"The Government believes that the early adoption of Conclusions is important; it sends a signal to Bulgaria and Romania about the significance the Council attaches to these reports and the need for the Bulgarian and Romanian governments to maintain momentum and deliver results on these fundamental issues.

"The Government remains committed to Parliamentary scrutiny and engagement with the Committee. We welcome the close attention the Committee continues to give to this important issue and will be happy to answer any questions raised following your meeting on 10 September or when Parliament reconvenes in October."

Conclusion

22.37 We think that the Commission reports speak for themselves. As the Committee has noted on a number of previous occasions, its concern is not with a post mortem on Bulgaria and Romania's accession but, rather, to ensure that the lessons that emerge from it are incorporated into the way in which subsequent accessions are handled, and specifically that of Croatia.

22.38 As well as visiting Croatia in June, the Committee also took evidence from the Foreign Secretary on 2 July 2009 on enlargement, with a particular focus on the lessons to be learned. The Committee referred specifically to the Commission's earlier judgement that both countries needed to demonstrate three things:

— "an autonomously functioning, stable judiciary, which is able to detect and sanction conflicts of interests, corruption and organised crime and preserve the rule of law";

— "concrete cases of indictments, trials and convictions regarding high-level corruption and organised crime"; and that

— "the legal system is capable of implementing the laws in an independent and efficient way."

and asked if he agreed with the Committee that Croatia needed to meet all of these requirements before it is allowed to accede to the European Union.

22.39 The Foreign Secretary responded thus:

"The three areas that you have highlighted in your quotation are all very important. They will all be very important in the Croatian case as well as in other cases but the precise form in which judgement is made, in which benchmarks are set, in which standards are set, obviously needs to be appropriate to the Croatian case because, as you recognised in your question, it is not exactly the same situation in Croatia as it was or is in Romania and Bulgaria. While all three issues are important and are issues that no-one would deny that every citizen of the UK has an interest in any member state of the European Union being able to act properly in those areas, the precise way in which that is done for Croatia needs to be appropriate for Croatia. That is why we have the 35 different chapters. I think it might be helpful for the Committee to remind itself that there has been a significant strengthening of the accession process since Romania and Bulgaria came in. For example — and this speaks directly to your point — chapter 23 is a new chapter addressing directly judicial reform, fundamental rights and anti-corruption. That is a new chapter in the acquis, so that has to be negotiated successfully before Croatia can come in. There is, secondly, recognition that judicial and public administration reform, corruption and organised crime must be tackled early and vigorously in preparation for accession. That speaks partially to your concerns. Thirdly, there are now rigorous benchmarks for each and every chapter, some of which I think you wrote to us about and we have sent back to you those benchmarks. Just to be clear, they require candidates for European Union membership to meet minimum standards before the negotiations are opened and then also before they are closed. Fourthly, there is now a requirement that we see implementation in some important areas, not just the passing of laws. Obviously, some of you were in Croatia last week or the week before, and you will have teased out the difference between passing a law and actually implementing it. I think the new process that exists does recognise the need for implementation as well as the passage of laws. Fifthly and finally, there has been a change in the approach as regards target dates, which is that aspirant countries can have target dates but we, as the European Union, do not have a legally binding date by which an accession will happen. I think those are a recognition that the issues you are raising are profound and appropriate and right to be raised. They are an attempt to address those issues and, obviously, the accession process needs to be fair to all countries but also needs to respect the fact that the countries are different because, to quote you, they are not exactly the same."[83]

22.40 A further letter of 25 July from the Foreign Secretary is at Annex 1 of this chapter of our Report. There, he outlines in greater detail the strengthening of the accession process via the addition of a new Chapter 23 on judicial reform and fundamental rights, within which Member States have to agree unanimously on opening and closing benchmarks, and that they have been met, before the chapter can be opened or closed. There, he notes that the Council has not yet set closing benchmarks and that "when the moment comes we and the EU will certainly want to ensure that they set clear requirements for tackling corruption, including a track record of results".

22.41 We are drawing all this to the attention of the House because of the widespread interest in the enlargement process, particularly in the Balkans, in the hope that it will be of relevance if and when the time comes to consider an accession treaty concerning Croatia.

22.42 In the meantime, we note with further disappointment the Minister's approach to the depositing of these documents. That "these reports are non-legislative and non-binding documents" does not render them exempt from scrutiny: on the contrary. Otherwise, no Commission Communication would be subject to scrutiny, which is a nonsense. The question is not when they are published, but how quickly they are acted upon by the Council. We wished the House to be given the opportunity to consider, and if necessary, debate these reports prior to the adoption of Council Conclusions. Given the continuing failings of both governments to respond to the Commission's several earlier diagnoses and prescriptions, and the subsequent Council Conclusions, we find the argument that "the early adoption of Conclusions is important [because] it sends a signal to Bulgaria and Romania about the significance the Council attaches to these reports and the need for the Bulgarian and Romanian governments to maintain momentum and deliver results on these fundamental issue" particularly unconvincing, and see it more as an argument of convenience that once again deprives the House of an opportunity to debate these documents, should the Committee have so recommended, before Conclusions are adopted.

22.43 Given that such an opportunity no longer exists, we now clear the documents.

Annex: Letter of 25 July 2009 from the Foreign Secretary

"When I appeared before the European Scrutiny Committee for your evidence session on EU enlargement and the Lisbon Treaty, on 2 July, I undertook to write setting out in more detail how we and the European Commission assesses progress by Croatia on tackling corruption.

"You will recall, that we had a substantial discussion on the lessons learnt from the accession negotiations with Romania and Bulgaria, and I believe established much common ground — both in our assessments of the issues and in our determination to ensure that Croatia, through a strongly conditions based process, meets the EU-wide agreed criteria before joining the EU. We believe it is particularly important for Croatia to make demonstrable progress in strengthening its public administration, judiciary and efforts to tackle corruption and organised crime. For the UK, these reforms will remain at the centre of the accession negotiations and we shall continue to provide significant support for them, both through the EU assistance programme and bilaterally under the aegis of our UK-Croatia Strategic Partnership.

"Turning to the Committee's specific question, I want now to set out how the EU collectively tackles corruption in the accession negotiations, how the Commission monitors and supports progress, and what we are doing bilaterally to support key reforms.

"Tackling corruption in the accession negotiations

"Since the accession of Bulgaria and Romania, one way we have strengthened the accession negotiations is by adding a new Chapter on judicial reform and fundamental rights (Chapter 23).

"Before we agree to start negotiations on any Chapter, Member States require the Commission to prepare an initial assessment of a candidate country's compliance with required standards. This then informs our collective decision on whether to open the Chapter immediately or to require further preparatory work. If further work is needed the EU can set specific benchmarks that must be met before that Chapter is formally opened for discussion — another innovation since Bulgaria and Romania's accession designed to ensure that preparatory work is started early enough for all chapters during the negotiations.

"In the case of Chapter 23 we set three opening benchmarks. One of these was a benchmark requiring Croatia to provide a National Anti-Corruption Programme and related Action Plans including timeframes, bodies responsible and budget necessary for its implementation. In this we asked for specific emphasis on (a) the establishment of an effective institutional mechanism of coordination for the implementation and monitoring of anti-corruption efforts; (b) the effectiveness of legislation on financing of political parties and election campaigns in addressing corruption; (c) measures to prevent conflict of interest.

"The Commission provides support and specialist advice for Member States to assess progress on the extent to which a candidate country meets benchmark requirements. Negotiations cannot progress until all Member States are satisfied that benchmarks have been met. When Member States are satisfied the Commission then prepares an EU negotiating position (a Draft Common Position), including proposed closing benchmarks, and recommends opening negotiations on the specific Chapter. Closing benchmarks typically require candidates to demonstrate that they are fully prepared for alignment with the acquis from the date of accession and often include a requirement for a satisfactory track record on alignment and administrative capacity in line with relevant action plans.

"Once a Chapter is open the Commission provides Member States with further assessments of progress, in particular against the benchmarks set. When sufficient progress has been made the Commission will recommend provisionally closing negotiations on that chapter. Negotiations cannot close until all Member States are satisfied that closing benchmarks have been met. Furthermore, if new issues arise during the negotiations, there is the potential to revise or add to the benchmarks; and, once a chapter is closed, if new information or evidence or regression came to light, the EU is able to reopen provisionally closed chapters.

"As you will see, unanimous agreement by Member States is required at several stages in the negotiation of each Chapter. This process thus gives us the opportunity to ensure that conditionality is fairly set and robustly enforced throughout the negotiations.