By Liljana Cvetanoska, Teaching Fellow in Corruption, Law and Governance at Sussex Law School and Sussex European Institute
Corruption remains a serious problem for many European Union (EU) member states and candidate countries despite the EU’s efforts to tackle it during various accession rounds. Central and Eastern European countries (CEECs) have expressed an interest in joining the EU already since the 1990s, but they have been reluctant to become members immediately. A set of criteria was thus put forward to guide the accession process of candidate countries, known as the Copenhagen criteria. These conditions focused on the rule of law, certain economic aspects and their willingness and ability to incorporate all EU rules (the so-called “acquis communautaire”) into their domestic legal systems.
The fight against corruption has been at the centre of these criteria as it constitutes a potential obstacle to their fulfilment. The EU had strong reasons to push for anti-corruption reforms in candidate countries because of its limited ability to influence domestic anti-corruption reforms after accession. For these reasons, candidate countries are expected to respect the rule of law and to introduce the required anti-corruption reforms before becoming members of the Union. However, implementing these reforms has proved rather difficult in practice.
The EU accession process consists of three phases. The first phase is the expression to become a member, after which a country is assessed on its ability to become an actual candidate. The next phase is to check whether the country in question sufficiently fulfils the Copenhagen criteria followed by a unanimous agreement of the European Council to open negotiations. Only once the Copenhagen criteria are satisfied, can a country open accession negotiations: if a country is not able to demonstrate fulfilment of these criteria, it should not proceed to the next stage of the enlargement process. Nevertheless, this is exactly what happened during the 2004 and 2007 enlargement waves. Countries that did not have basic anti-corruption laws in place and had serious problems with corruption were allowed to open membership negotiations with the Union. For example, Romania, which was deemed a case of concern from the start of the accession process, was permitted to open negotiations with the EU even before passing an anti-corruption code.
Romania is not the only case. Various CEECs became EU members without implementing relevant anti-corruption laws that were part of the accession requirements. The Czech Republic did not have a Civil Service Code implemented at the time of accession, which is necessary for the fight against corruption, particularly due to the role civil servants play in the procurement process, an area that is prone to corruption for many CEE candidate countries. EU member states receive funds that are largely distributed at the national level through public procurement. It is necessary, therefore, to regulate the appointment, dismissal and promotion of public officials prior to accession in order to ensure a transparent and fair process in the allocation of EU funds. Yet the Czech Republic, in spite of not having the necessary law in place, was still allowed to join the EU. It took this country an additional 14 years after accession to implement the Civil Law Code and it was only following the EU’s threat to reduce funding rather than for a genuine attempt to fight corruption.
This is not to say that anti-corruption legislation on its own can ensure the effectiveness of anti-corruption efforts. Implementation of these laws and policies is also crucial. However, having relevant anti-corruption legislation in place was one of the specific criteria that had to be met in order to progress further in the accession process and the EU seemed to have ignored this by allowing these countries with significant corruption problems to become members of the Union.
The Romanian case again illustrates the loose application of the Copenhagen criteria. The country opened negotiations with the EU, even though it did not have a basic anti-corruption law. However, it is difficult to understand how a country can fulfil the rule of law criteria without penalising corruption-related offences. Indeed, there were concerns over the levels of corruption in this country throughout its negotiations with the EU. The EU constantly warned Romania that it needed to provide an anti-corruption track record. However, it failed to provide any guidance to the country as to what this meant in practice. In spite of these problems, the country’s accession process went ahead and Romania closed negotiations with the EU in 2005, even though there were still serious concerns about corruption.
As a result, and for the first time in the accession process of a CEEC, the EU added additional criteria for Romania (as well as Bulgaria) that were to be fulfilled between the closing of the negotiations and accession to the Union. In addition, the EU also threatened to postpone the accession date from 2007 to 2008 should reforms prove to be insufficient. However, this threat lacked teeth as in the worst case scenario Romania (and Bulgaria) were to join the EU by 2008 at the latest. Coincidentally, general elections were held in Romania in 2004. The President Traian Basescu won on the basis of an anticorruption campaign, and tried to reform the Anticorruption Directorate, the main agency prosecuting serious corruption offences in the country. The new Directorate gained the trust of the EU institutions and was effectively charged with strengthening the fight against corruption in the country. Yet, the so-called Cooperation Verification Mechanism was introduced to monitor Romania’s (and Bulgaria’s) implementation of anti-corruption reforms after accession. The adoption of this mechanism indicated that there were still additional reforms to be completed. In turn, this raises the question as to why Romania (and Bulgaria) have been allowed to join the EU without fully meeting the accession requirements.
Eventually the EU has made some credible attempts to improve its conditionality criteria in the sphere of anti-corruption after the 2004 and 2007 enlargement waves. For example, Macedonia only received a recommendation to open negotiations once the European Commission concluded that the country had a robust anti-corruption legal framework. This is not to say that the country was successful in implementing these laws. However, in the case of the Western Balkans there was an expectation to produce a comprehensive legal anti-corruption framework before opening negotiations, which was not the case for previous enlargements. Moreover, in 2011, the EU introduced the so-called “New Approach” according to which issues related to the fight against corruption, that is judiciary and fundamental rights (Chapter 23 of the acquis), as well as justice, freedom, and security (Chapter 24) should be addressed from early on in the accession process. The New Approach is being applied to the accession of the Western Balkan countries, which according to corruption perception indices have the lowest ability to control corruption in Europe.
The above suggests that the EU is learning from previous mistakes and is making additional efforts to tackle corruption from the early stages of the negotiations and prior to the accession of the Western Balkans. Yet, it remains to be seen how successful this New Approach is going be in practice.
Liljana Cvetanoska can be contacted by email at: L.Cvetanoska@sussex.ac.uk