20 EU Enlargement: post-accession monitoring:
Bulgaria and Romania
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5633/14
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COM(14) 36
(b)
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5634/14
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COM(14) 37
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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
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| Legal base | —
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| Documents originated | (Both) 22 January 2014
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| Deposited in Parliament | (a) 27 January 2014
(b) 27 January 2014
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| Department | Foreign and Commonwealth Office
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| Basis of consideration | EM of 6 February 2014
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| Previous Committee Report | None; but see (34649) 5938/13: HC 86-xxxii (2012-13), chapter 13 (13 February 2013);(34104)12827/12: and (34125) 12828/12: HC 86-xi (2012-13), chapter 27 (5 September 2012); also see (33674) 6371/12 and (33675) 6372/12: HC 428-li (2010-12), chapter 13 (22 February 2012); (33049) 13253/11 and (33050) 13254/11: HC 428-xxxv (2010-12), chapter 12 (7 September 2011); (32547) 6986/11 and (32548) 6987/11: HC 428-xx (2010-11), chapter 7 (16 March 2011); (31824) 12558/10 and (31825) 12562/10: HC 428-i (2010-11), chapter 65 (8 September 2010); (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)
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| Discussion in Council | 18 March 2014 General Affairs Council
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| Committee's assessment | Politically important
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| Committee's decision | Cleared
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Background
20.1 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.
20.2 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. There were, however, still significant
shortcomings, particularly on JHA issues.[89]
20.3 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 (time-limited and now-defunct) sanction
of non-recognition of judicial decisions under mutual recognition
arrangements if progress was insufficient.[90]
Notwithstanding that accession on 1 January 2007 was essentially
a fait accompli, in view of 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.[91]
20.4 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.
20.5 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.
20.6 The previous Committee's consideration of earlier
reports is enumerated in the headnote. As all the Committee's
and its predecessor's Reports illustrate, thus far it has been
very much a case (in both countries) 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.
The Commission's five-year overview
20.7 In the summer of 2012, the Commission produced
a five-year overview — a broad assessment of progress in
each country since the CVM was established and proposals in the
light of that assessment. Once again it made for dispiriting
reading. As the Committee noted when clearing them, its concern
for five years now has been not to conduct a post-mortem on Bulgaria
and Romania's accession but, rather, to ensure that the lessons
that emerged from it were incorporated into the handling of subsequent
accessions, and specifically Croatia's.
20.8 The recognition that Bulgaria and Romania were
allowed to accede despite sub-standard preparation, combined with
subsequent poor performance on a range of "good governance"
issues, prompted the introduction of a new chapter 23 into the
accession process, with both opening and closing benchmarks requiring
unanimity for the chapter to be opened; and, once opened, to be
closed. That came to an end in summer 2011, when Croatia's accession
treaty was signed, and two years of pre-accession monitoring got
underway: if there were still concerns at the end of this process,
"appropriate measures" could be introduced.
20.9 In Romania's case, the Commission report was
produced at a time of (as the Minister for Europe, Mr David Lidington,
had put it in his Explanatory Memorandum of 27 July 2012 on this
five-year overview) of "high political volatility".
While no doubt true that (as the Minister said) it was possible
that, without the CVM, none of the necessary measures would have
been taken by either country, we found it extraordinary that it
should be so, five years after their accession — five years
that had been no more than (as he put it) "a phase predominantly
concerned with legislation" and where both countries still
needed to move "to one more focussed on implementation and
delivery". Though the situation was more concerning in Romania
at that juncture, the harsh reality in both countries was where
it always had been: the absence of a broad political consensus
for implementing the necessary reforms to ensure that they are
sustainable and irreversible. Thus, in Romania, 67% of those
surveyed thought that corruption had got worse over the
past three years; whilst in Bulgaria, widespread corruption was
still a cause for concern, with the only areas where it had been
in any sense effectively tackled being arguably the result not
of the CVM but of the EU having at one point suspended normal
funding because the situation then was so bad, and the lack of
tackling corruption elsewhere being closely linked to organised
crime.
20.10 Nevertheless, the CVM, for all its weaknesses,
could not be abandoned. Looking further down the accession track,
"front-loading" these issues in future was the right
policy. But before then would come Croatia, whose accession treaty
had already been signed and who was due to accede in July 2013.
As we had said, we were unable to see how "appropriate measures"
at the end of an unsatisfactory pre-accession monitoring process
could be reassuring, since these could not differ fundamentally
from the palpably ineffective CVM. That is why we agreed with
the Minister that these CVM reports underlined the importance
of ensuring that all future candidate countries — including
Croatia — were fully ready for EU membership by the date
of their accession.[92]
20.11 In the meantime, we cleared the documents.[93]
The January 2013 Commission report on Romania
20.12 The Commission recalled that, as its previous
report had been issued at a time when important questions were
raised with regard to the rule of law and the independence of
the judiciary in Romania, it had included specific recommendations
to restore respect for these fundamental principles and the decision
to report six months later, with a focus on the Commission's recommendations
in this area.
20.13 The Minister described the report as a fair
and objective assessment of the progress in Romania since last
July. He would argue for "positive but balanced" language
in the Council Conclusions that were to be adopted in the second
half of February 2013.
20.14 After meeting the Romanian prime minister on
4 February 2013, the President of the Commission issued a statement
in which he said, inter alia:
"I appreciate the efforts that Prime Minister
Ponta has made over the last six months to deliver on the commitments
he made last July. The conditions now exist, with a more stable
political situation, a new Government and Parliament, to make
a real push on the reform process. We need to see further progress
on the independence of the judiciary and the appointment to key
posts. We will also look to politicians to set an example by
stepping aside where integrity rulings or corruption charges exist."[94]
Our assessment
20.15 All the areas of continuing concern were those
that the Commission had highlighted in every previous such report.
As the Minister said, what was now needed was "broad-based
support for the reform agenda from all sides of the political
and judicial spectrum" — which was, of course, precisely
what had been lacking for the past six years, and before accession.
Clearly, he and the Commission were hoping that, this time, a
new prime minister and a new parliament would finally take a different
approach. We concluded that we would have to wait until the next
report to see whether or not such hopes were well-founded or,
again, misplaced.[95]
The January 2014 Commission reports on Bulgaria
and Romania
20.16 The Commission's detailed reports are (as on
previous such occasions) helpfully summarised by the Minister
for Europe (Mr David Lidington) in his Explanatory Memorandum
of 6 February 2014, as follows.
BULGARIA
"The Commission reports that since July 2012,
progress towards CVM benchmarks in Bulgaria has been limited.
Improvements to judicial appointment procedures and an audit by
the Prosecutors Office are the only positives described.
"The report acknowledges that the reporting
period covers three different Bulgarian governments (the previous
government which stood down in February 2013, the three month
long caretaker government from March to May 2013, followed by
the current coalition established in May 2013) but that all share
responsibility for a lack of progress against the CVM benchmanks.
Particular concerns are frequent revelations about political influence
on the judiciary, lack of prosecutions for corruption and the
escape from justice by leaders of organised crime. The Commission
calls on the Bulgarian authorities to provide leadership on reform
based on core principles of rule of law and independence of the
judiciary.
"To help progress and address the issues identified,
the Commission makes a series of recommendations to the Bulgarian
authorities. Key recommendations are as follows:
"Independence, accountability and integrity
of the judiciary
"The report raises concerns about the appointments
process for the Judiciary and Magistracy. The report calls for
a focus on professionalism and integrity, particularly for senior
appointments. Appraisal processes should be introduced together
with uniform standards as the basis for promotion. Monitoring
and evaluation of court decisions should also be carried out to
identify and rectify inconsistencies. Allocation of cases throughout
the judiciary should be random and transparent, with case allocation
checked by independent experts, to counter public concern about
the independence of the judiciary.
"Reform and Efficiency of the Judicial System
"The Commission calls for an updated strategy
on judicial reform to give direction and momentum to reform efforts.
Transparency should be incorporated into this strategy via the
introduction of an annual progress report from the Supreme Judicial
Council outlining reform measures and setting goals for the next
year.
"Key within this reform is the completion of
a new Penal Code, which has been under preparation since 2010.
In its 2012 CVM report, the Commission recommended setting a target
for the completion and implementation of the new Penal Code, this
request is again made in this report.
"E-justice has been recognised by Bulgarian
Ministers of Justice as an important element in the modernisation
of the Bulgarian justice system, assisting with efficiency, transparency
and consistency of the judicial process. Although some progress
has being made, the application of e-justice facilities consistently
throughout the country has yet to be established. The Commission
calls for concrete progress towards full implementation.
"Tackling Corruption
"The report highlights Bulgaria's poor track
record in tackling corruption:
"Bulgaria is considered to have one of the highest
corruption risks among EU Member States. Tackling high-level corruption
is one of the core benchmarks of the CVM, and reports have consistently
pointed to shortcomings in terms of the prevention, investigation,
and dissuasion through bringing emblematic cases to justice".
The report calls for increased measures not only to prevent corruption,
but also to pursue those suspected of corruption via the courts.
"Specific recommendations include: placing a
single institution in charge of combating corruption, producing
a revised anti-corruption strategy in consultation with civil
society, and ensuring that the risk of corruption within public
procurement is reduced by increasing the scope of checks and ensuring
the effective and consistent application of rules and sanctions.
"Organised Crime
"On combating organised crime, the Commission,
as in several other areas, calls for a strategy to be developed
and implemented to enable successful prosecution of those involved
in organised crime, including punitive measures for addressing
those who abscond from court. Following the merger of the Chief
Directorate Combating Organised Crime with the State Agency for
National Security (SANS) in June 2013, the Commission asks for
a policy guiding SANS interaction with equivalent bodies in other
EUMS. The report also highlights the failed appointment of an
individual* to the Head of SANS and the non-transparent, politically-influenced
way by which the individual was selected. This, along with the
Commission for Prevention and Ascertainment of Conflicts of Interest
(CPACI)'s weak performance and apparent political influence are
of cause for concern to the European Commission."
ROMANIA
"The Commission's report states that Romania
has made progress in many areas since the last report. Many areas
for improvement focus on refining and building on the progress
made so far.
"What concerns the Commission is the level of
commitment to judicial independence by political figures. In terms
of the sustainability of reforms made, the report reflects that
anti-corruption institutions have maintained their good work,
despite political pressure to do otherwise. However, the Romanian
Parliament has shown, via its attempts to amend legislation in
its members' favour, that progress still has the potential to
be reversed.
"To build on the positive steps and ensure their
longevity, the Commission suggests a series of recommendations.
Key recommendations are as follows:
"Judicial Independence
"The report praises the role of the Superior
Council of Magistracy for its defence of judicial independence
and calls for the Romanian authorities to provide the right conditions
for this to continue. The Commission also recommends that the
Code of Conduct for parliamentarians includes clear provisions
to ensure that parliamentarians respect the independence of the
judiciary and its decisions.
"Judicial reform and integrity
"The Commission recommends measures which build
on the progress made so far in the consistency in judicial practice
and on the integrity framework of the judiciary by: i) addressing
court workload issues; ii) furthering transparency via consistent
and up to date online publication of court decisions; iii) ensuring
that laws on conflict of interest and unjustified wealth are applied
universally and iv) expanding checks applied to EU fund project
procurement to all public procurement.
"Fight against Corruption
"The Commission acknowledges the strong track
record Romania is establishing on tackling and prosecuting high-level
corruption and calls for this level of rigour towards corruption
at any level. Also recommended is to improve the consistency and
severity of penalties given for corruption cases and to make public
procurement procedures less susceptible to corruption."
The Government's view
20.17 The Minister endorses these reports:
"They are comprehensive and provide a balanced
understanding of progress achieved over the reporting period. The
reports also highlight where further efforts are necessary in
both countries to meet the required benchmarks. The Government
remains supportive of keeping the CVM in place as it provides
a useful way of monitoring developments."
20.18 The Minister professes himself disappointed
by the lack of progress made by Bulgaria:
"particularly after a number of positive steps
were made in 2012 regarding the legislative framework. This
report notes that key institutions such as the Supreme Judicial
Council and the Conflict of Interests Commission are not
producing results. The Commission is correct in that successive
governments have yet to produce strategies to tackle systemic
issues in CVM areas and significant challenges remain. The turbulent
political situation can go some way to explain the lack of progress
against the 2012 recommendations but following this 2014 report,
the Bulgarian government will need to act swiftly to address EC
concerns."
20.19 With regard to Romania, the Minister says that
the progress achieved:
"demonstrates that the rule of law institutions
are exerting their independence, and the continued development
of a track record in the prosecution of high-level corruption
cases is particularly noteworthy. However, these advances
need to be fully supported at all levels to ensure that reforms
are sustainable and irreversible. There remains a lack of
broad-based political commitment to meeting the objectives of
the CVM, which undermines the progress being made at the institutional
level. Judicial independence and the separation of powers
are essential elements of an impartial and effective judicial
system, and are not yet sufficiently embedded in Romania."
20.20 The Minister endorses the Commission's proposal
to provide its next reports in a year's time:
"This gives time for implementation of reforms
and a better assessment of their sustainability. During this time
we will continue to work with the Romanian and Bulgarian authorities
to help them meet the benchmarks. We will also encourage the Commission
to maintain its close monitoring of the reform process in both
countries and to keep Member States informed."
20.21 The Minister continues to consider that the
CVM process :
"a valuable tool in helping Bulgaria and Romania
to meet core standards in term of judicial reform and the fight
against corruption and organised crime. We are working with like-minded
Member States to ensure that the Conclusions to be agreed at the
March meeting of the General Affairs Council endorse the Commission's
objective work and underline the need for the CVM to remain in
place until the benchmarks are met."
20.22 The Minister note that further assistance will
be provided using existing EU funding under the programmes already
available to Romania and Bulgaria, and that Romania also has access
to a €100 million World Bank loan to upgrade its judicial
infrastructure ("building new court rooms, etc").
20.23 With regard to bilateral support, the Minister
says:
"We will continue to support both countries
on judicial reform, anti-corruption and combating organised crime
(for Bulgaria) through the British Embassies in Bucharest and
Sofia and expertise sharing.
"Recently financed projects included: in Bulgaria,
lobbying on Asset Forfeiture including SOCA and HO experts delivering
presentations and sharing UK experience, and provision of UK expertise
on Counter terrorism texts in the Bulgarian Penal Code currently
drafted. In Romania in 2013 we co-funded a web platform to roll
out the National Anti-Corruption Strategy to all Ministries and
Local Authorities and we funded a project to boost the capacity
of the Ministry of Health's Integrity Unit. This year we will
co-sponsor, with the Romanian Government, a regional anti-corruption
conference to boost capacity and regional cooperation in South
East Europe and the Western Balkans."
Conclusion
20.24 The situation in Bulgaria is deeply concerning.
Improvements to judicial appointment procedures and an audit by
the Prosecutors Office are the only positives. 18 months after
the last report there are still frequent revelations about political
influence on the judiciary, a lack of prosecutions for corruption
and leaders of organised crime continuing to evade justice. Yet
again the Bulgarian authorities are enjoined to provide leadership
on reform based on core principles of rule of law and independence
of the judiciary.
20.25 Romania is judged to have made progress
in many areas since the last report a year ago. Yet the Minister
again notes a continuing lack of broad-based political commitment,
which undermines the progress being made at the institutional
level: and the Commission remains concerned about both the level
of commitment to judicial independence by political figures and
the Romanian parliament's apparent endeavours to mitigate the
good work of the anti-corruption institutions via its attempts
to amend legislation in its members' favour, thereby endangering
the sustainability of the reforms made.
20.26 Why does all this matter? As the Commission
says elsewhere:
"Corruption seriously harms the economy
and society as a whole. Many countries around the world suffer
from deep-rooted corruption that hampers economic development,
undermines democracy, and damages social justice and the rule
of law. The Member States of the EU are not immune to this reality.
Corruption varies in nature and extent from one country to another,
but it affects all Member States. It impinges on good governance,
sound management of public money, and competitive markets. In
extreme cases, it undermines the trust of citizens in democratic
institutions and processes."
20.27 These words are taken from its first report
on corruption in all EU Member States, which was published on
3 February 2014. It notes that three quarters of respondents
(76%) think that corruption is widespread in their own country,
a quarter (26%) consider that they are personally affected by
corruption in their daily lives and around one in twelve (8%)
say they have experienced or witnessed a case of corruption in
the past 12 months. Individual country analyses are said to have
revealed a wide variety of corruption-related problems, as well
as of corruption control mechanisms, some of which have proved
effective and others have failed to produce results. Public procurement
was found to be particularly prone to corruption in the Member
States, owing to deficient control mechanisms and risk management.[96]
20.28 Thus the situation in Bulgaria and Romania
is far from unique. The EU as a whole would appear to have work
to do.
20.29 In the meantime, we are again drawing this
report to the attention of the House because of its importance
to the integrity of the future enlargement process.
89 For details, see previous Reports enumerated in
the headnote to this chapter. Back
90
Commission Decisions 2006/928/EC and 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, pp.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
91
Gen Co Deb, European Standing Committee B, 15 January 2007,
cols. 3-28. Back
92
Commission Communication: 14854/12, "Main Findings of
the Comprehensive Monitoring Report on Croatia's state of preparedness
for EU membership", was the Commission's most recent
assessment. For the Committee's consideration of it and Croatia's
accession process as a whole, see (34320) 14854/12: HC 86-xxi
(2012-13), chapter 12 (28 November 2012) and the earlier Reports
referred to therein. Back
93
See headnote: (34104)12827/12: HC 86-xi (2012-13), chapter 27
(5 September 2012). Back
94
See http://europa.eu/rapid/press-release_SPEECH-13-98_en.htm. Back
95
See headnote: (34649) 5938/13: HC 86-xxxii (2012-13), chapter
13 (13 February 2013). Back
96
COM(14) 38: Commission Report: EU Anti-Corruption Report;
available at:
http://ec.europa.eu/dgs/home-affairs/e-library/documents/policies/organized-crime-and-human-trafficking/corruption/docs/acr_2014_en.pdf. Back
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