29 November 2022

War, Schengen, and the Rule of Law

The European Union’s early Christmas present to Romania

On 22 November 2022, the European Commission (EC) published its final report on Romania under the Cooperation and Verification Mechanism (CVM) and proposed the mechanism be terminated. While this is an early Christmas present to the ruling elite of Romania, it certainly isn’t one for the rule of law – neither in Romania nor the EU.

It’s been nearly 16 years since the CVM was established at the accession of Romania and Bulgaria to the EU in January 2007. Setting and monitoring benchmarks, its aim is to support both countries in overcoming shortcomings relating to the rule of law, especially the independence of the judiciary and fight against corruption. While Bulgaria was considered to have successfully fulfilled all benchmarks by 2019 and the mechanism was lifted, the case is different for Romania.

What went wrong?

In 2017, the EC set out twelve recommendations for Romania as conditions for the termination of the CVM. But, that same year, a period of rule of law backsliding under the Social Democrats (PSD) began. The 2017-2019 period was characterised by significant backtrail in areas of independence of the judiciary and fight against corruption. This urged the EC to add more recommendations before the CVM could be lifted. In 2019, one of the engineers of the attack on the rule of law, leader of the Social Democrats and president of the Chamber of Deputies, Liviu Dragnea, lost power. He was sentenced to prison for abuse of power and the rule of law seemed to have triumphed.

What’s the controversy now? The justice reform, again.

Today, the subject of controversy remains the same as in past years: the (new) justice reform. After Romania’s “most powerful man”, Liviu Dragnea, fell in 2019, the National Liberal Party (PNL) came to power. This ended the decades long dominance of the Social Democrats responsible for the rule of law backsliding including the justice reform. The PNL Government began to reform the justice system anew. The justice reform consists of: 1. the Law on the Superior Council of the Magistracy, 2. the Law on the Judicial Organisation and 3. the Law on the Status of Judges and Prosecutors (Justice Laws). The 2021 EC report remarked significant momentum and reassuring progress regarding the justice reform. And now, the EC has found that all benchmarks of the CVM can be considered successfully met and the CVM should be permanently lifted.

Yet, not everyone is as happy with the reform as the EC. The European Commission on Democracy through Law (Venice Commission) is far more critical and so are Romanian judges and prosecutors associations, asking the EC to not let them down in their fight for the independence of justice. Unfortunately, we reach the conclusion that the EC is doing precisely that.

Corruption – not tackled

The EC considers the anti-corruption benchmarks to be met. Corruption in Romania is still soaring, being the second highest within the EU. Moreover, the new Justice Laws are threatening the existing institutional guarantees against corruption, mainly the National Anti-corruption Directorate (DNA). The DNA (established in 2002) has done remarkable work in the fight against corruption in Romania, often positively remarked by European institutions. DNA’s visibility peaked in 2017 with the beginning of the PSD’s then-leader Liviu Dragnea’s prosecution. Just one year later, DNA’s key powers were transferred to the newly established Section for the Investigation of Criminal Offences within the Judiciary (SIOJ). The SIOJ has been broadly criticised by both the Venice Commission and the EU and has been dismantled in March 2022, after accumulating a backlog of unsolved cases. However, key powers of the DNA have not been restored since. The Justice Laws bring about no significant improvements concerning the DNA: they continue the decentralisation and weakening of the DNA. Anti-corruption work is newly assigned to groups of three ordinary (not specialised) prosecutors attached to courts of appeal, dealing with corruption in the judiciary in addition to their other work. This means the Venice recommendations of March 2022 have not been implemented, and the institutional guarantees against corruption, successful in the past, are being decentralized and weakened.

Another concern related to corruption is the overusing of emergency procedures. While the new Justice Laws have been subject of lengthy preparation since 2020, their parliamentary adoption followed in a rushed manner in an emergency procedure. Their adoption is certainly an improvement to earlier reforms, especially in the period 2017-2019, when Justice Laws had been reformed overnight through emergency ordinances of the Government. The Venice Commission held that the adoption of laws within the framework of emergency procedures is a dangerous mechanism employed too often (regularly) by the Romanian legislature. While this casts doubt on the transparency and predictability of the (final part) of the legislative process, the EC was, nevertheless, convinced that this benchmark was met.

Independent judiciary – not safeguarded

The EC is also convinced that the benchmarks relating to the independence of the judiciary have been met. Yet, several dangers for the independence of the judiciary arise from the three Justice Laws, most of them noted by the EC, but not taken seriously.

First, high-ranking prosecutors are appointed for a period of three years only, renewable once. The Venice Commission strongly recommends apex prosecutors be appointed permanently or for a relatively long period without the possibility of renewal and for their mandate not to coincide with Parliament’s term in office.

Second, the leading role of the Minister of Justice in the appointment of apex prosecutors, criticized by the Venice Commission for years, has not been reverted.

Third, the General Prosecutor (in whose appointment the Minister of Justice plays a central role) has the power to refute measures of subordinate prosecutors by bypassing the prosecutorial hierarchy and thus taking direct measures against subordinated prosecutors. The Venice Commission sees this extremely critically as the possibility of direct intervention is a severe risk of abuse and prevention of justified prosecution.

Fourth, contrary to previous legislation, deputy managers in courts and prosecutors’ offices will be appointed upon a proposal from the apex judge or prosecutor, without competition or examination. The lack of a meritocratic system of appointment carries a serious risk of clientelism (and thus risk to independence) within the judiciary.

All in all, the current state of affairs presents a great risk of political influence and a danger for the independence of the prosecution and the judiciary.

Primacy of EU law – not ensured 

The unsolved issue regarding the primacy of EU law is another significant problem. Since 2018, the Constitutional Court of Romania (CCR) has been consistently upholding the controversial justice reforms. Ordinary judges have been trying to revert the dangerous reform and have been stopped by the CCR, eg when attempting to disapply the law on SIOJ as contrary to a CVM Decision and CJEU case-law. This made the ordinary judges turn to the CJEU leading to the Romanian Rule of Law Saga. The CJEU has been critical of the CCR and elements of the justice reform, especially relating to judicial independence. The December 2021 decision of the CCR challenging the primacy of EU law should be seen against this context. It prevents national courts from enforcing EU law where it requires the disapplication of a national norm already declared in accordance with the Constitution, such as the three new Justice Laws upheld by the CCR on 9 November 2022.

Five months ago, in June 2022, Věra Jourová, EU Commissioner for Transparency and Values, emphasized that the recognition of the primacy of EU law is very important for the wrapping up of the CVM. Since then neither the CCR nor the Justice Laws have recognized the primacy of EU law. Yet the EC still wants to terminate the CVM. The EC’s final report applauds that the disciplinary offences linked to concerns for judicial independence and the primacy of EU law have been abolished by the Justice Laws. However, it notes that a new disciplinary offence sanctioning the expression of political opinions of judges and prosecutors in the exercise of duties, also in public, has been added and “will need to be monitored to ensure it does not restrict unduly the magistrates’ freedom of speech”. Can the EC really not see how easily defying the CCR and adhering to CJEU rulings (on primacy, rule of law and beyond) can continue to be covered under this disciplinary offence? Just like in the other areas, the EC is purposefully closing its eyes to the persisting risks.

Why does all of this matter?

That the CVM has been largely ineffective for years is no secret: unable to achieve its goal of improving the rule of law, with the rule of law even worsening during its supervision. So why does it matter if a drain of resources gets cancelled? First, even if relatively ineffective, its, at least symbolic, value in applying pressure on Romania has been a much-needed whip.

Second, the termination of the CVM signals that the EU is putting its hands off the state of the rule of law and democracy in Romania. Romania will continue to be subject of the Rule of Law Mechanism as the other Member States (including the conditionality of EU funds on adhering to the rule of law and the Rule of Law Report). It will additionally be monitored under the Recovery and Resilience Plan for Romania and the European Semester aimed at improving the business environment, investment, economic growth, and job perspectives through the implementation of an effective justice system, the fight against corruption, and a qualitative law-making process. Nevertheless, the sugar-coated praise of the EC, overlooking serious risks, sends the wrong signal to the Romanian ruling elite. This is particularly concerning at a time when the rule of law and democracy are so fragile as they have not been cemented in an “irreversible” manner in Romania.

The way the CVM is to be ended is marked by hypocrisy in at least two ways. First, the EC is ignoring major persisting problems and just assuming the laws will be followed. This is problematic. We agree with the Venice Commission that “on the whole the laws seem to be heading in the right direction”, but many problems persist and “the complexity of the laws and their level of detail make it difficult to see how they can be applied in practice.” Second, the EU is (still) not a union of equals. It kept Romania parked in Schengen negotiations and the CVM for years. And only now, in times of imminent threat, it acts to protect its own interest (powerful Member States’ interest?) related to the war in Ukraine.

Why is this happening now? Schengen and War.

The Schengen evaluation processes of Romania and Bulgaria were successfully completed in 2011. Yet, both countries have been left waiting in vain since – for 11 years. What has changed now? War in Europe. Less than a week after Russia attacked Ukraine (sharing a 613 km border with Romania), Romania and Bulgaria jointly invited a fact-finding mission on their adherence to Schengen standards. The mission, completed in October 2022, found that both countries “continue to meet the conditions necessary to apply all relevant parts of the Schengen acquis in full”. Romania’s Schengen membership has been informally linked to the termination of the CVM which, in turn, depends on the Justice Laws. This link has been indirectly confirmed by the Romanian Government when refusing to wait for the Venice Commission’s opinion on the draft laws – despite previously saying it would –, arguing this was necessary “due to the need to quickly ensure the termination of the CVM and to enter the Schengen Space”.

The EC’s Communication (16 November 2022) proposing the full participation of Bulgaria, Romania and Croatia in Schengen makes it clear it’s all about security and war. It emphasizes the countries’ strategic geographical position in “securing our common external border and effectively contributing to a high level of security and prosperity”. It acknowledges the countries’ contribution to the well-functioning of the Schengen area, including “when faced with the unprecedented consequences of the war in Ukraine”. The accompanying press release, too, highlights that the enlargement “will make Europe safer – through reinforced protection of our common external borders and effective police cooperation”. The war has made the need to protect the external border with Ukraine and handle the arrival of many refugees painfully clear. That’s why the EC is suddenly – after 11 years of standstill – so eager to have Romania in the Schengen Space.

But is the EC’s CVM termination proposal truly a gift on the way to Schengen? Or is it rather a gift instead of getting Schengen? For inclusion in the Schengen area, unanimity in the Council is required and several Member States have expressed opposition due to concerns about corruption and organized crime. Concerns the EC has shared for years but has given up now to clear the way for its political and security goals. Top Romanian officials in charge of the systemic undermining of the judiciary in 2017-2019 – and still in power today – are celebrating: “a so-called debatable chapter around justice was closed once and for all”. But should it? Those threatening the rule of law should not be getting (Christmas) presents from a Union (cl)aiming to protect the rule of law. They should not be given the last word – neither in this blog and nor in reality.