Corruption, rule of law, and EU oversight in Romania

February 13, 2017

Photo: Getty Images

Corina Rebegea, fellow-in-residence at the Center for European Policy Analysis, says the massive protests in Romania against modifications to the criminal code, which decriminalized corruption cases that result in financial damages of less than $40,000, show that Romanians are trying to move beyond the corruption of the post-transition period. Previously, corruption has been institutionalized in Romania, she says, with the law being used to promote dealings between businesses and politicians, resulting in the undermining of the entire legal structure.

“It’s a system based on spoils, it’s a system of rent-seeking,” Rebegea says. “We see that because there are protests now in favor of having the rule of law in Romania. These are huge protests, the biggest since 1989. You can say it’s a small modification of the criminal code, but what people are seeing is that this undermines the rule of law.”

Rebegea says it is widely held that many members of Romania’s current government and individuals from “all parties at all layers of public administration will benefit from this ordinance.” To illustrate how corruption undermines the rule of law, Rebegea wonders what would happen if an average person decided not to pay $40,000 worth of taxes.

The public responded to the law with shock and outrage, prompting mass mobilizations unlike anything Rebegea has ever seen. Media coverage of the protests along with social media organizing drove hundreds of thousands onto the streets to protest in front of government buildings.

“These protests show the people really care about the rule of law,” she says. “They understand that if you cripple one aspect of the criminal code, or one element of how an anti-corruption institution works, then you actually destroy the fundamental idea behind the rule of law. You have to have a set of principles that are both legal and fulfill the terms of good governance: procedural transparency, participation, consultation, institutional independence, and so on. People understand the implications of allowing a small group of politicians to destroy those principles. And they understand the financial repercussions which are very concrete. It’s like having your wallet stolen from your pocket. I think it is a major shift in Romania that people have started to see and understand how this affects them personally.”

Progress in anti-corruption in Romania

According to Rebegea, the real milestones in Romania’s fight against corruption began during the country’s accession to NATO in 1998 and the enlargement of  the European Union in 2007. She says that dedicated policy-makers, empowered civil society, and proper legal and administrative mechanisms all had to be put into place to help usher in Romania’s fight against corruption.

After ten countries from mostly the Central European region became EU member states in 2004, including Hungary, a mechanism for cooperation and verification was established by the European Commission for the next phase of enlargement in 2007, which brought Romania and Bulgaria into the EU. That mechanism served to ensure that the new member states remained on track when it comes to the rule of law. The problem in 2004 was that new member states essentially “ticked boxes” to prove they were in compliance with EU expectations, but there was no way to make sure compliance continued after their accession.

“There are studies that show that in the region a lot of the reforms, especially in the fields of good governance and rule of law, decreased in intensity after the accession because there was no pressure, no mechanism, no leverage to keep these countries in compliance,” Rebegea says.

Romania’s anti-corruption special prosecution service, DNA, has relentlessly prosecuted politicians for corruption, including a former prime minister. In this sense, EU enlargement was a conduit for change in Romania. According to Rebegea, despite setbacks in the fight against corruption, Romanians feel empowered to demand accountability from their politicians.

The EU’s role in the fight against corruption in member states

Rebegea says that while the EU certainly does need to do more in the fight against corruption, it is “facing a lot of challenges, and it has a very slow process for establishing the right mechanism, especially in the field of law. It has been even more complicated in the field of criminal justice because this is something that national jurisdictions claim to have sovereignty over.”

Certain EU initiatives, such as the EU-wide anti-corruption report, were good steps in the right direction, she says, but ultimately proved ineffective. Established in 2014, the reporting system would have issued reports on corruption every two years, but no report was released for 2016, “so that kind of died”.

According to Rebegea, the report would have been a good method for understanding how different countries approach corruption, and for analyzing the institutional mechanisms that deal with corruption and whether the EU needs to address the issue on a bloc-wide level. She says the 2014 report was “very mild. There were no names, just very broad descriptions of what is happening. It was a very diplomatic way of looking at the issue and trying not to upset member states.” She argues that had the reporting mechanism been much more potent, it would have received more attention and more interest, and could have made a difference.

While progress has certainly been made in countries such as Romania, those member states that joined the EU in 2004 could not benefit from the cooperation and verification mechanism of 2007. Rebegea says it would be difficult to establish such a mechanism now on a country-by-country basis; some countries think that if they were good enough in 2004, they are certainly good enough now. This is why she advocates for rule of law mechanisms that should be applied across the EU in a manner that does not single out or shame one particular country.

EU Prosecutor

On previous attempts within the EU to set up an EU prosecutor’s office, Rebegea says “it’s complicated.”

OLAF, the European Commission’s anti-fraud agency, does investigate and establishes a mechanism for cooperating with national jurisdictions to combat fraud, but there are no repercussions if the national authorities choose not to take action, she says. Given the current frameworks, she says the only effective way to combat corruption and misuse of EU funds is by withholding access to those funds.

“This has happened in the past when the Commission has frozen funds for Bulgaria when they didn’t comply with their obligations under the cooperation and verification mechanism. So there are things that can be done under the current framework that don’t require fundamental reforms in the way the EU approaches this rule of law. If you freeze funds, there is a concrete direct cause to not following up on investigations, or even starting investigations and then completing them and so on.”