Tag Archives: Cooperation and Verification Mechanism

2011 Reports for Bulgaria and Romania under the Cooperation and Verification Mechanism

The European Commission has published its fifth progress reports for Bulgaria and Romania under the Cooperation and Verification Mechanism (CVM) for 2011. The reports monitor the progress of the two Member States on progress with judicial reform, the fight against corruption and, concerning Bulgaria, the fight against organized crime.

The report on Bulgaria notes that Bulgaria has strengthened the Supreme Judicial Council and improved rules for the appointment, professional training, appraisals and promotions of judges. Several organised crime and corruption cases have reached verdicts in court. At the same time, an increased number of indictments in cases related to organised crime and fraud with EU funds have been achieved. The report notes that the leadership of the Bulgarian judiciary has yet to show a real commitment to thorough judicial reform as slow progress is not just the result of shortcomings in judicial practice and in the Penal Code. Again and again the Commission points out that judicial appointments still lack the necessary level of transparency and credibility. The report also notes that there is a lack of consistent disciplinary practice in the judiciary. The Commission sees weaknesses in the collection of evidence, the protection of witnesses as well as in investigative strategies, comprehensive financial investigations and the securing of assets. The Commission recommends that coordination within the prosecution and between the prosecution and the police should be improved. The most important recommendation of the Commission is to establish proposals for a reform of the Supreme Judicial Council, the Supreme Cassation Prosecution Office and the Prosecution in general regarding structures, legal attributions, composition, appointments and internal organization.

The report on Romania points to the significant steps Romania took since the last annual report of July 2010. Romania improved judicial efficiency, re-established the legal basis of the National Integrity Agency, continued preparations for the implementation of the four new codes, launched preparations for a functional review of the judicial system and carried out an impact analysis of its anti-corruption policy. At the same time, the report also notes that consistency and results in a number of areas remain a challenge and that progress in the fight against corruption still needs to be pursued. The report concludes that Romania needs to take urgent action to accelerate high-level corruption trials and to prevent their prescription due to expiry of statute-barred periods. The fight against corruption should remain a top priority, with support from Parliament, and urgent measures should be taken to improve the recovery of proceeds of crime, the pursuit of money laundering and the protection against conflict of interest in the management of public funds.

 

 

The (Un)Importance of the Cooperation and Verification Mechanism

The new set of reports under the Cooperation and Verification Mechanism (CVM) for Bulgaria and Romania were published by the Commission. The mechanism is used by the Commission to monitor the progress of both countries in the fields of judicial reform, corruption and organised crime. But does the mechanism matter?

It’s difficult to say. The CVM was an instrument used to extend conditionality beyond the accession date for Bulgaria and Romania. For three years after the accession the EU could impose safeguard clauses, including a specific safeguard clause in the area of justice and home affairs (art. 36 of the Accession Treaty). However, this period has expired. It the strict sense of the word CVM is no longer a conditionality instrument. Eli Gateva has written a very good paper on this, explaining that the absence of accession rewards combined with toothless explicit threats for sanctioning non-compliance produce very weak negative incentive structure.

On the other hand both the Bulgarian and Romanian governments pay attention to the recommendations in the reports and at least try to act on them. One reason for this can be the difficulty of acceding to the Schengen area. Both France and Germany have linked the two issues, although they are not legally dependent. So one may argue that the accession to the Schengen area is now a new conditionality tool, used to push reforms of the judiciary in Bulgaria and Romania.

There is also another interpretation – that “old” Member States have given up hope of achieving effective structural reforms of the judiciary in Bulgaria and Romania, and are trying to mitigate the damage by denying access to the Schengen area. This strategy will fail. Neglecting the structural deficits of law enforcement and the judiciary in Bulgaria and Romania can have wide-ranging implications for the whole European Union. It is not possible to “isolate” both countries in some sort of a triage. Their weaknesses impact negatively the overall security of the EU, and of the separate Member States.

That is why the CVM is still useful – at least as an instrument for diagnosis.

 

 

2010 Reports for Bulgaria and Romania under the Cooperation and Verification Mechanism

The European Commission has published its progress reports for Bulgaria and Romania under the Cooperation and Verification Mechanism (CVM). The reports monitor the progress of the two Member states on progress with judicial reform, the fight against corruption and, concerning Bulgaria, the fight against organized crime.

Both reports say that further assistance and monitoring by the Commission is needed to support the reform processes in Bulgaria and Romania until all benchmarks are fulfilled and the CVM can be repealed. In other words the monitoring will continue for an undetermined period of time.

The reports for both countries are quite critical. For Bulgaria the report seems to underscore the fact that noisy police actions do not necessarily transform into successful convictions. For Romania the main criticism is directed against the new amendments of the law on the National Integrity Agency.

The report on Bulgaria notes a strong reform momentum which has been established in Bulgaria since the Commission’s last annual report in July 2009. The Commission believes that there is strong political will in the Bulgarian government to achieve a deep and lasting reform of the judiciary. According to the report Bulgaria has adopted important reforms of its penal procedures. Bulgaria has increased its efforts to fight against high-level corruption. Bulgaria has also stepped up efforts by carrying out a number of police raids on organised crime groups although little judicial follow-up to these raids has been reported. However, the report notes that the judicial process in Bulgaria lacks initiative and professional capacity. Complex investigations show a lack of direction and purpose, procedures are too formal and too long and often fail in court. The implementation of the conflict of interest law is insufficiently effective. Shortcomings in the implementation of public procurement procedures are widespread.

The Commission points to important shortcomings in Romania’s efforts to achieve progress under the CVM. Romania did not show sufficient political commitment to support and provide direction to the reform process and demonstrated a degree of unwillingness within the leadership of the judiciary to cooperate and take responsibility. Judicial reform has shown important progress with Parliamentary adoption of the Civil and Criminal Procedural Codes. The National Integrity Agency (ANI) was able to demonstrate a further consolidation of its capacity and track record regarding the identification of unjustified wealth, incompatibilities and conflicts of interest. However, the amendments to the law on the National Integrity Agency voted on 30 June 2010 represent a serious step back.

Progress reports for Bulgaria and Romania

The Commission has published its reports under the Cooperation and Verification Mechanism on progress with judicial reform, the fight against corruption and, concerning Bulgaria, the fight against organized crime.

The report about Romania notes that the country has not been able to keep the momentum of reform it had established by mid-2009.

The report about Bulgaria says that the judiciary continued to produce only few results in cases involving high-level corruption and organised crime and a further street killing occurred in January 2010.

No progress has been reported with procedures to adopt the new draft Statutory Instruments Act which should introduce clear rules for transparency and public debate and codify the different stages of the legislative process.

Organised crime cases in court have generally shown little development since mid-2009 and no convictions have been reported in this period.

Council Conclusions on the Cooperation and Verification Mechanism

The Council has adopted its conclusions on the Cooperation and Verification Mechanism (CVM) for Bulgaria and Romania.

The Council stresses the need for more substantial results in investigating, prosecuting and judging cases of high-level corruption and organised crime in order to secure lasting change in Bulgaria.

The Council concludes that the CVM should continue “pending the results expected in this framework”.

Regular Report under the Co-operation and Verification Mechanism

The European Commission has published its regular annual reports under the Co-operation and Verification Mechanism for Bulgaria and Romania.

The report for Bulgaria includes an assessment on meeting the indicative benchmarks for justice and home affairs since its last full report (23 July 2008). It also makes recommendations to Bulgaria based on this assessment.

The report says that there is “a change in attitude and a more open and frank dialogue at all levels with the Bulgarian authorities”.

In more specific points, the report finds that:

  • The establishment of a permanent Joint Team for the Suppression of Offenses against the EU Financial System is an excellent initiative;
  • Killings linked with organized crime continue and known criminals are not apprehended;
  • Organizational overlaps continue in the new structure of the Ministry of Internal Affairs which has not yet led to increased effectiveness in the investigation of serious crime;
  • Delays in criminal cases are largely caused by the extreme formality of the criminal procedure, a certain passivity of the bench and the seemingly limitless possibilities offered by the criminal procedure law to defendants to stall the proceedings;
  • The Inspectorate to the Supreme Judicial Council has become fully operational and has achieved an encouraging track record in the investigation of disciplinary violations and of systemic weaknesses of judicial practice;
  • There is a need for a more pro-active approach for fighting corruption in vulnerable areas and sectors such as health or education.

On the question of possible invocation of the safeguard clause, the Commission concludes that this is not necessary. According to the report:

“The kind of deep seated changes that are needed can only come from within Bulgarian society. The CVM is a support tool in this endeavour; it is not an end in itself nor can it replace commitment that Bulgarian authorities need to make in order to align the judicial system and practice with general EU standards.”

EC Report on Bulgaria: Leaks

Dnevnik reports that the main message of the draft CVM report of the European Commission for Bulgaria is that there is lack of political will and consensus to support the fight against corruption and organized crime.

The draft report makes a direct link between the progress to be achieved in the fight against organized crime and corruption, and Bulgaria’s accession to Schengen.

Dutch Government Considers Safeguard Clause for Bulgaria and Romania

Dutch Minister of European Affairs Frans Timermans has asked the Justice Commissioner Jacques Barrot to consider the possible activation of the safeguard clause for the judiciary together with the forthcoming publication of the CVM report on Romania and Bulgaria.

This comes after the “Borilski” case controversy in Bulgaria that may prompt  a de facto invocation of the safeguard clause by France.

Rule of law Monitoring: Bulgaria and Romania

There is a new publication by CEPS: “Safeguarding the Rule of Law in an Enlarged EU: The Cases of Bulgaria and Romania” by Susie Alegre, Ivanka Ivanova and Dana Denis-Smith.

The report has one synthesizing section and two separate sections of findings for Bulgaria and Romania. The Bulgarian part is written by Ivanka Ivanova from the Open Society institute.

The report presents an accurate picture of ongoing efforts to ensure rule of law in both countries. It correctly notes that the ultimate legal instrument in case of systemic breach of rule of law is article 7 TEU when there is a clear threat of a serious breach of the common values of the Union. The authors think that more specific criteria and procedural guidance is needed to make article 7 functional.

A major recommendation in the report is that monitoring of the rule of law in the EU should focus on criminal justice.

In the Bulgarian section there is an understandable omission regarding political parties’ legislation – as the really deplorable amendments in the Elections Act were finalized after the publication of the report.

Twinning and More?

The information about the project of the Bulgariam Prime Minister Stanishev for a new cooperation initiative with the other EU member states is scarce.

The new initiative is called “building up on cooperation in key areas of reform in Bulgaria”.

Up to now I find the most information in the weekly “Kapital”, where excerpts of the document presented to José Manuel Baroso are published. I also know from the media that this is not the final version of the document, but presents, however, some basis for analysis.

There are two levels of monitoring and control proposed in four thematic areas: justice and internal affairs, EU funds management, fight against the corruption and administrative capacity. The first level of control Is technical – comprising of Bulgrian administration officials, experts from the European Commission, and deputy ambassadors from EU member states. The second level – called “political”, is more interesting (comprising of four Bulgarian ministers and four EU member states ambassadors). It is proposed that the chairman of the political group – and member of the Bulgarian cabinet, should inform all member states about the progress in the thematic areas; and a EC commissioner is also proposed to attend these meetings.

This proposal is, as my colleagues would say, an institutional hybrid. It is easier to say what it isn’t, rather than what it is.

This is not a twinning project, for a twinning project aims “to deliver specific and guaranteed results and not to foster general co-operation”.

It is not a replacement  of the Cooperation and Verification Mechanism, since it includes areas outside of the scope of the mechanism, which means that one cannot use the legal basis in the Act on the conditions of accession. In fact the PM Stanishev himself denied the notion that this is an attempt to replace the Cooperation and Verification Mechanism.

This is not a “political board” at least in the meaning that I imply (governance board) – without being an expert in the field. I think that we can talk about some form of “governance board” in the case of Kosovo.

From the viewpoint of Community law the proposed “build-up” has no clear legal definition. More, the question about the constitutional interpretation of the proposal arises, at least in respect to the assessment of the work of the judiciary. The reason that there is a Cooperation and Verification Mechanism is the Treaty of Accession, where other member states demanded that such mechanism be applied to Bulgaria and Romania, and we accepted it. I cannot see how such an undertaking would be legally justified unless the constitution is amended.

I think that the proposal cannot be supported.

Update: The European Union and Bulgaria: A new colonialism