Documents considered by the Committee on 20 October 2010 - European Scrutiny Committee Contents

12 EU Enlargement: Bulgaria, Romania and Croatia




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COM(10) 400




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COM(10) 401

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 originated20 July 2010
Deposited in Parliament26 July 2010
DepartmentForeign and Commonwealth Office
Basis of considerationMinister's letter of 6 October 2010
Previous Committee Report(31824) 12558/10 and (31825) 12562/10: HC428-i (2010-11), chapter 65 (8 September 2010): also see (31436) 7947/10 and (31437) 7948/10: HC 5-xviii (2009-10), chapter 7 (7 April 2010); (30828) 12386/09 and (30829) 12388/09: HC 19-xxvi (2008-09), chapter 22 (10 September 2009); (30437) 6405/09 and (30438) 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)
Discussed in Council13 September 2010 General Affairs Council
Committee's assessmentPolitically important
Committee's decisionCleared (decision reported on 8 September 2010); further information now provided and requested.


12.1 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.

12.2 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.

12.3 There were, however, still significant shortcomings, particularly on JHA issues.[44] So, various post-accession measures were put in place, the most crucial being the Mechanism on Cooperation and Verification (CVM) — 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.[45] 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.[46]

12.4 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

12.5 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

12.6 The Commission monitors progress and writes reports every 6 months: interim reports at the start of the year and main reports at mid-year. The previous Committee's consideration of earlier reports is enumerated in the headnote.[47]

12.7 The main report provides an over-view of progress, while the accompanying technical reports detail progress on each benchmark since the last full report.

12.8 Our consideration of the most recent full Commission report of July 2010 is set out in the Report of our meeting on 8 September 2010.[48]

12.9 As we noted there, over the whole post-accession period, it has been very much a case of incremental steps forward, other steps backward, some marking of time, and an overall impression of a continuing lack of sustained commitment by the political class as a whole in both countries. Now, the picture is more mixed: indications of such commitment in Bulgaria, and an upbeat assessment; but serious backsliding in Romania, with disappointment on the part of both the Commission and the Minister of Europe at serious shortcomings over the past year.

12.10 As we also noted, the previous Committee had made clear on a number of previous occasions that its concern was not with a post-mortem on Bulgaria and Romania's accession but, rather, to ensure that the lessons that continue to emerge from it are incorporated into the way in which subsequent accessions are handled, and specifically that of Croatia. In its Report on the similar Commission reports of 2009, the previous Committee recalled not only its own visit to Croatia in June 2009 but also the evidence it took from the then Foreign Secretary (David Miliband) on 2 July 2009 on enlargement, with a particular focus on the lessons to be learned, and especially the Commission's earlier judgement that both Bulgaria and Romania 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."

12.11 On that occasion, the previous Committee asked him if he agreed that Croatia needed to meet all of these requirements before it is allowed to accede to the European Union.

12.12 The then Foreign Secretary's response, together with a further letter of 25 July 2009 from him, outlined a strengthening of the accession process via the addition of a new Chapter 23 on judicial reform and fundamental rights, within which Member States would have to agree unanimously on opening and closing benchmarks, and that they had been met, before the chapter could be opened or closed. There, he noted that the Council had 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".[49]

12.13 Prior to the publication of these latest Commission Reports and receipt of his Explanatory Memorandum, the Committee received a letter of 22 June 2010 from the Minister for Europe with an overview of progress. He noted that Croatia had now opened 30 chapters out of 35, and that 18 have been provisionally closed. He went on to say that the Government had now managed to secure agreement on an EU negotiating position that included "setting rigorous benchmarks in the areas we want" — including on cooperation with the International Criminal Tribunal for (former) Yugoslavia (ICTY) — and proposed to agree to open formal negotiations with Croatia on this basis. Before the chapter could close, a "comprehensive and robust set of benchmarks" would need to be met (31 in all, compared with the 3-6 that most other chapters have), covering a range of important issues including: judicial transparency, impartiality and efficiency; tackling corruption; protecting minority rights; resolving outstanding refugee return issues; and protection of human rights.

12.14 The Government had, the Minister said, also secured clarification that Croatia will need to show a track record of implementation across these areas; and a closing benchmark on cooperation with ICTY:

"Full cooperation with the ICTY remains a requirement for Croatia's progress throughout the accession process, including for the provisional closure of this chapter, in line with the negotiating framework adopted by the Council on 3 October 2005."[the Minister's emphasis and italics.]

12.15 The Minister then said that:

"The Government assesses that Croatia has continued to demonstrate commitment to progress the investigation in missing documents requested by the Chief Prosecutor for the trial of General Gotovina. Since December Prime Minister Kosor has chaired 3 inter-agency meetings to drive forward an investigation by a new Task Force. The Task Force is constrained by an order from the Tribunal which prevents them from accessing documents seized from the Gotovina Defence team in December. Despite this the Task Force has conducted approximately 40 interviews with new individuals and fresh searches of premises. Chief Prosecutor Brammertz briefed the Foreign Affairs Council on 14 June and expressed his increasing confidence in the Task Force. This is reflected in his latest report to the UNSC on 18 June.

"On the basis of the agreement of a clear benchmark and this assessment of Croatian cooperation Ministers have agreed in principle to open this chapter when technical negotiations are concluded, probably on Wednesday 23 June. I spoke yesterday to Davor Bozinovic, State Secretary of the Croatian Ministry of Foreign Affairs, to advise him of this and impress on him the need for Croatia to continue to progress the investigation and demonstrate its commitment to full cooperation with the ICTY."

12.16 The Minister went on to say that the Commission will monitor Croatia's progress on this chapter closely, and that he would be happy to provide updates on progress. He also enclosed an extract from ICTY Chief Prosecutor Brammertz's Oral Report of 10 June 2010 to the UN Security Council.

Our assessment

12.17 The Commission reports, which were cleared, and the Minister's comments spoke for themselves. Concerning the wider lessons of the experience with Bulgaria and Romania's accession, the Committee shared its predecessor's standpoint.

12.18 The Committee was thus reassured by what the Minister had to say in his letter, though it noted his emphasis on the word "full" in the paragraph cited concerning the closing benchmark on cooperation with ICTY. This, we felt, could plainly be open to a number of interpretations, and be influenced by political considerations. We therefore asked the Minister, when he provided the next update, to expand on this, and say, in judging what constitutes "full" cooperation, to what extent the Council will depend upon the assessment in this regard of the ICTY Chief Prosecutor.

The Minister's letter of 6 October 2010

12.19 After welcoming the Committee's interest in this issue, the Minister begins by noting that Croatia is approaching the end of its EU accession negotiations, having closed 22 chapters out of 35. However, he says, Croatia still has important work to complete, notably implementing specific reforms to meet the benchmarks set for closing negotiations on the remaining chapters. He continues as follows:

'"One of the main challenges facing Croatia is driving through the changes needed to reform the judicial system, to tackle corruption and ensure respect for human rights in areas such as settling outstanding refugee returns, ensuring full implementation of the anti-discrimination law and strengthening protection of minorities. These issues are dealt with under Chapter 23 of the negotiations. The UK has worked to secure agreement to a comprehensive and robust set of 31 benchmarks which Croatia will need to meet before this chapter can close. Although this is a challenging agenda, progress is encouraging and Croatian leaders regularly restate their commitment and determination to deliver the necessary changes."

12.20 The Minister then recalls that the UK has sought and secured agreement to a closing benchmark within this chapter stating that (the Minister's italics):

"Full cooperation with the ICTY remains a requirement for Croatia's progress throughout the accession process, including for the provisional closure of this chapter, in line with the negotiating framework adopted by the Council on 3 October 2005."

and continues thus:

"Over the last few years the ICTY Chief Prosecutor, Serge Brammertz, has not been fully satisfied with Croatia's efforts to provide certain missing documents requested for the trial of General Gotovina. He has raised these concerns in his bi-annual reports to the UN Security Council. At the end of 2009, Croatian cooperation improved. Croatia established a task force, conducted raids on several addresses (including the premises of the Gotovina Defence team), seized hundreds of documents and provided Serge Brammertz with some new material (although this did not include any of the key documents he had requested). In his most recent report on 18 June, Serge Brammertz said (the Minister's italics):

'During this reporting period Croatia has, generally, been responsive to our requests for assistance. However, the issue of the missing important documents related to Operation Storm in 1995 remains outstanding. In October 2009 Croatia established an inter-agency Task Force to take over their administrative investigation. While there has been a general improvement in the quality of the interviews conducted, no full account of the whereabouts of the important missing documents has been provided. In addition, key investigative avenues remain unexplored.

'During the past weeks, I have been assured by the authorities that the administrative investigation will pursue additional leads and expand its work as suggested by my Office one year ago. I hope that these activities will result in effective action and concrete results. While the matter remains before the Trial Chamber, I await the results of these efforts by Croatia to see whether Croatia intensifies its administrative investigation and fully accounts for the missing documents before the end of trial.'

12.21 The Minister then goes on to note that since his letter of 22 June 2010 about the Government's decision to open Chapter 23 in the light of this report and on the basis of agreement to the closing benchmark, there have been some further developments:

"Closing arguments in the Gotovina trial were made on 1 September, and the trial has now entered the judgment writing phase. We expect a judgment by early 2011. The documents that Serge Brammertz has requested could still be submitted as evidence before the Court until that point, and after the judgment they could still be included in any appeal. Prime Minister Kosor continues to assure us that the Task Force remains active and is doing all it can to establish the whereabouts of the missing documents. We will continue to impress upon the Croatian Authorities at the highest level the importance of completing a thorough investigation into the missing documents."

12.22 The Minister then turns to the matter of "full cooperation":

"The previous Government publicly defined "full co-operation" with ICTY as committed and sustained activity demonstrating one hundred per cent effort and political will. I want us to maintain this yardstick and apply it consistently across the region. In the light of concerns raised by the Prosecutor we expect Croatia to demonstrate, in particular, continued efforts to meet requests for documents, and to take all appropriate steps to conduct a credible investigation to find them.

"The Commission will produce an assessment of Croatia's progress against all the benchmarks and will make a recommendation to the Council to close Chapter 23 when they judge the benchmarks have been met. It will then be for the Council to decide by unanimity whether or not to close the chapter. The UK is a strong supporter of ICTY and international justice. We believe the Commission's assessment will need to consider all relevant factors and, of course, take full account of the assessment of the ICTY Chief Prosecutor who has a clear mandate from the UNSC to report on countries' cooperation with the Tribunal."


12.23 We are grateful to the Minister for this further clarification. It would seem that the ICTY Chief Prosecutor has made his position clear: evidence of Croatia intensifying its administrative investigation and full accounting for the crucial missing documents before the end of the Gotovina trial. And so, too, has the Minister: the Commission's assessment will need to consider all relevant factors and, of course, take full account of the assessment of the ICTY Chief Prosecutor.

12.24 Conditionality in the enlargement process is important not only in the case of Croatia, but also in that of Serbia. There, similar issues arise and a potential conflict between conditionality and politics is evident concerning Serbia's desire to move to the next stage in the accession process, where reliable press reports suggest that the Commission, the HR and some Member States (encouraged by the United States) appear to wish to reinforce the present "moderate" leadership in the run-up to important elections in the face of apparent unhappiness on the part of the ICTY Chief Prosecutor concerning cooperation with ICTY.[50]

12.25 We accordingly ask the Minister to bring the Committee up to date on this latter issue after the 25 October Foreign Affairs Council meeting at which this matter is to be discussed, and remind him that we await a response to our letter to him of 8 September 2010 concerning earlier Council discussion of this matter and details of Brammertz's June report to the UN Security Council (the outlines of which the Minister had provided in confidence, which meant that the Committee could make no use of it in its Reports).

12.26 In the meantime we report this further information to the House because of its specific and wider significance.

44   For details, see previous Reports enumerated in the headnote to this chapter. Back

45   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 L 354, 14.12.2006, p. 56 and 58; see and Back

46   Stg Co Deb, European Standing Committee, 15 January 2007, cols. 3-28. Back

47   See headnote: (31436)7947/10 and (31437) 7948/10: HC 5-xviii (2009-10), chapter 7 (7 April 2010) and previous references. Back

48   See headnote: HC 428-i (2010-11), chapter 65 (8 September 2010). Back

49   See headnote: (30828) 12386/09 and (30829) 12388/09; HC 19-xxvi (2008-09), chapter 22 (10 September 2009). Back

50   See, for example, European Voice of 14 October 2010. Back

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