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.
Posted in Enlargement, Institutional Affairs, Justice and Internal Affairs
Tagged Bulgaria, Bulgarian Judiciary, Bulgarian Supreme Judicial Council, Cooperation and Verification Mechanism, Corruption, organized crime, police, prosecution, Romania
The Commission has proposed a set of measures to address the harm that corruption causes to European societies. The Commission is setting up a new mechanism, the EU Anti-Corruption Report, to monitor and assess Member States’ efforts against corruption and encourage more political engagement. Supported by an expert group and a network of research correspondents, and the necessary EU budget, the Report will be managed by the Commission and published every two years, starting in 2013. It will identify trends and weaknesses that need to be addressed, as well as stimulate peer learning and exchange of best practices.
How effective will the report be? It’s a very good sign that the EU will have a more focused approach towards diagnosing serious corruption in Member states. But it’s far from certain that ample treatment will follow the diagnosis. If we consider the experience with the reports under the Cooperation and Verification Mechanism for Bulgaria and Romania, it appears that the Commission reports stir a lot of emotions and produce fewer practical results.
Any effort to independently monitor corruption levels in any Member state should be commended. The Commission should also consider benefiting from the existing monitoring mechanisms set up by Transparency International and OECD.
The simple answer is yes. Some justification follows.
First – some background of the case. The English newspaper Sunday Times has conducted an investigation, claiming that several MEPs were willing to take money in exchange for filing legislative amendments. Three MEPs were named – the Austrian centre-right Ernst Strasser, the Slovenian Socialist Zoran Thaler and the Romanian Socialist Adrian Severin. OLAF decided to open a formal investigation immediately and OLAF investigators attempted to collect evidence from the offices of the concerned MEPs located at the premises of the European Parliament in Brussels on Tuesday 22 March. However, the EP authorities refused to give access to these offices and claimed these would be secured by EP security personnel.
The EP clearly erred here. As OLAF has pointed out in its statement, its competences are outlined in art. 325 TFEU, and Regulation (EC) No 1073/1999 concerning investigations conducted by the European Anti-Fraud Office (OLAF). Art. 1, para. 3 of Regulation (EC) No 1073/1999 specifically points out that OLAF shall conduct administrative investigations within the institutions for the purpose of fighting fraud, corruption and any other illegal activity affecting the financial interests of the EU. Art. 4, para. 2 clearly says that OLAF has the right of immediate and unannounced access to any information held by the institutions, bodies, offices and agencies, and to their premises. In addition, Annex XII to the Rules of Procedure of the EP the services and any official or servant of the EP is required to cooperate fully with the Office’s agents and to lend any assistance required to the investigation.
Now, someone might claim that by providing the documents in question, the EP might have cooperated in good faith without granting physical access to OLAF. This is not true, however. First, the purpose of immediate and unannounced access to information and documents is to prevent any opportunity for tampering the evidence. Second, the EP officials are not trained and do not have legal authorization to open locked premises, document containers, etc.
Posted in Institutional Affairs, Justice and Internal Affairs, Procedural Law
Tagged Adrian Severin, Corruption, documents, Ernst Strasser, European Parliament, investigation, OLAF, premises, Zoran Thaler
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.
Posted in Bulgaria, Justice and Internal Affairs
Tagged Bulgaria, Cooperation and Verification Mechanism, Corruption, France, Germany, judiciary, law enforcement, organized crime, Romania, Schengen
France and Germany have officially announced that they will block the accession of Bulgaria and Romania to the Schengen area, Euractiv reports. The main deficiencies in both countries that they outline are the absence of a satisfactory juridical and administrative environment in the fields of security and justice, persisting corruption at different levels and worrying levels of organised crime.
This letter does not come as a surprise to this blogger. I have time and again noted that both Bulgaria and Romania are facing significant challenges in the reform of the judiciary and the fight against corruption and organized crime. Two questions, however, linger on.
The first question is whether Bulgaria and Romania were fit to become Member States in 2007. The European Commission believed so, and so did France and Germany at the time. However, this leads to the logical conclusion that both countries in fact experienced a deterioration of the rule of law since accession.
The second question is whether Bulgaria and Romania can actually, at any point in the future, join the Schengen area. This is not an absurd question, since if separate Member States reaffirm their right of individual assessment of the quality of the judicial systems of candidates, it may turn out that both Bulgaria and Romania are assessed against unachievable standards that surpass the present level of rule of law in the Schengen area. Again, this is a logically derived possibility.
France and Germany should understand that answering both questions will have its consequences for the level of solidarity and cohesion in the European Union.
Posted in Enlargement, Institutional Affairs, Justice and Internal Affairs
Tagged accession, Bulgaria, Corruption, France, Germany, organised crime, Romania, rule of law, Schengen
Statewatch has published a restricted access report by EUROPOL, EUROJUST and FRONTEX on the state of internal security in the European Union. A selection of the findings (I have underlined some sections):
- The affluent consumer base and open business environment of the EU makes the region particularly vulnerable;
- Organised crime is growing in scale and sophistication;
- The number of terrorist attacks in the EU is declining but both violent separatist groups and Islamist extremists remain active and pose a clear threat to internal security;
- Most threats to internal security are generated outside the EU. Africa, South Asia, the Former Soviet Union, and the Western Balkans carry particular significance;
- Key hubs in and around the external border of the EU have developed as the principal staging posts for the inward flow of illicit goods and people;
- Border security is compromised by groups exploiting vulnerabilities in the transport sector;
- The threat from cyber crime is multi-dimensional, targeting citizens, businesses, and governments at a rapidly growing rate;
- European citizens and businesses are increasingly exposed to systematic violence and corruption at the hands of organised crime groups, terrorist groups, and, increasingly, street gangs.
Posted in Foreign and Security Policy, Institutional Affairs, Internal Market, Justice and Internal Affairs
Tagged border security, Corruption, EUROJUST, European Union, EUROPOL, Frontex, internal security, organized crime, report, street gangs, threats
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.
Posted in Bulgaria, Enlargement, Institutional Affairs, Justice and Internal Affairs
Tagged benchmarks, Bulgaria, Cooperation and Verification Mechanism, Corruption, judiciary, organized crime, reforms, report, Romania