The unstable Europeanization of Romania’s judiciary
Marcus Alexander Böltau/s2939924 BA Thesis, European Languages & Cultures
Politics & Society/English Primary supervisor: P. D. Tortola Secondary supervisor: A.S. Maass Date of submission: 13 January 2019
Word count: 12.174
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Abstract
Two years after the resignation of Prime Minister Victor Ponta in 2015, in face of striking allegations of money laundering, fraud, tax evasion and the
anti-government/anti-corruption demonstrations following the Bukarest nightclub fire that killed 64 people due to lax safety regulations, -allegedly conditioned by bribery-, Romania experienced its biggest mass demonstrations in post-communist times. The protests of more than 500.000 citizens across the whole country are in face of its recent democratic backsliding, first reflected by government plans to dismiss the head of the National Anticorruption Directorate (DNA) and personification of the Transparency and Anti-Corruption (TAC) struggle, Laura Kövesi, who has been praised by the European Commission for her bipartisan prosecutions. Secondly, they have been triggered by government plans to overhaul existing EU-driven TAC policies by trying to enforce an emergency decree that would decriminalize many high-level corruption offences. Those incidents unfold after a decennia of EU membership and 20 years of Europeanization, which leads me to analyse the underlying fragility of the domestic institutional framework of the judiciary. I believe that the ‘top-down’ process of Europeanization did not sufficiently account for a deep institutional transformation, that would have guaranteed a successful implementation and stability of TAC policies.
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Contents
1. Introduction .……... 4
2. A theoretical framework of Europeanization ……….. 6
2.1. A theory of incomplete Europeanization ……….. 8
3. The pre-accession Europeanization of Romania’s judiciary……….. 12
3.1. Post-accession Europeanization of Romania’s judiciary ……… 15
3.2. The limits of institutional change in Romania ………...19
3.3. Post -accession backtracking on EU-driven TAC reforms through emergency decree 13 (OUG 13) ………. 20
3.4. Judicial independence and stability of EU-driven TAC reforms in face of emergency ordinance 92/2018 ……… 23
4. Conclusion ………... 28
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1. Introduction
‘’There has been backwards and forwards, but this is worse.’’1 Monica Macovei, 2018 (former justice minister and architect of Romania’s Transparency and Anti-Corruption policies from 2004-2007)
While Romania’s economy profited from exceptionally high growth rates during the last decade as a new member of the EU, recent public demonstrations of more than 500.000 citizens overshadowed the welcoming economic progression. The manifestations, - being the largest in its post-communist history-, have been incited by the just sworn in coalition’s move of overhauling existing Transparency and Anti-Corruption (TAC) policies by
promulgating an emergency decree that would, inter alia, decriminalise any abuse of office,- as proven economic mistake-, involving damages under 44.000 €.2 Additionally, government
plans to dismiss the head of the National Anti-corruption Directorate (DNA) and
personification of the TAC struggle, Laura Kovesi, who has been praised by the European Commission for her bipartisan prosecutions, further incentivised the anti-corruption demonstrations. Those demonstrations do reflect higher standards of societal awareness, having been fostered throughout increased EU integration. However, they are but a culmination of a broader underlying problem, i.e. the unstable institutional framework to guarantee a successful and irreversible implementation of EU-driven TAC policies. As TAC policies are to be enforced by Romania’s judicial institutions, to the detriment of public officials being indicted, prosecuted and convicted for high-level corruption offences, those policies became increasingly politicised. Given the insufficient institutional framework, the new governing coalition took the opportunity to backtrack on those EU-driven TAC policies that were to culminate in major repercussions for high-level corruption offences committed by government officials. The recent backtracking can thus be seen, as a symptom of the underlying institutional instability.
Since the presence of high-level corruption became increasingly evident in the early 2000s with increased guidance and monitoring by EU institutions, the latter established a
framework to combat it. As a result, around 4700 prosecutions and indictments of all kind of public officials, particularly parliamentarians, administrative authorities and mayors, in addition to several CEOs and magistrates took place by 2014.3 While the sole undertaking of
those indictments reflects a certain effort of the judiciary to act upon high-level corruption cases, it became increasingly challenged by government interference, culminating in the
1 Rankin, J. ‘Romania braced for huge protests over 'big step backwards' on rule of law’, The Guardian, 19 January 2018, https://www.theguardian.com/world/2018/jan/19/romania-braced-for-huge-protests-amid-big-step-backwards-on-rule-of-law (accessed 10 November 2018)
2 Sandford, A. ‘EU Commission warns Romania against ‘backtracking’ on corruption’, Euronews; Romania, 01 February 2017, https://www.euronews.com/2017/02/01/eu-commission-warns-romania-against-backtracking-on-corruption (Accessed 10. November 2018)
3 European Commission. ‘EU Anti-Corruption Report’, Brussels, COM(2014) 38 final, 2014, p. 14,
https://ec.europa.eu/home-affairs/sites/homeaffairs/files/e-library/documents/policies/organized-crime-and-human-trafficking/corruption/docs/acr_2014_en.pdf (Accessed 10. November 2018)
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recent emergency decrees. The underlying framework of EU-driven TAC policies, however, has been established under the Cooperation and Verification Mechanism (CVM), as signed under EU accession conditionality by Romania. While institutional change tends to be slow and piecemeal, especially in face of a high policy misfit between EU TAC policies and the pre-existing domestic norms, I will focus on the misplacement and insufficiency of EU-driven reform mechanisms, particularly concerning the state of independence of Romania’s judiciary. The underlying framework, being the theory of Europeanization, will be identified by March and Olsen (1989) as a ‘top-down’ approach, which assumes that EU institutions drive Europeanization through sanctions and rewards4. In Romania’s case, I will argue that
the first step of institutional strengthening and thus judicial capacity building aided by EU funding, has been followed by an insufficient second step of empowering domestic judicial institutions as insulated and independent entities. The capacitation through EU funds aimed at increasing the administrative capacity of the judiciary has thus been succeeded by an insufficient level of deep institutional change, that should have delegated more authority and accountability to judicial institutions. The lack of judicial authority and independence conditions an unequal power structure between the judicial-, executive- and legislative branch, allowing for the latter to obstruct the judicial process and thus backtrack on EU TAC policies. Given that the incentive structure changed from pre-accession adaptational
pressures through the prospect of membership, to post-accession monitoring and sanctioning by EU institutions, I will make an argument of why EU-driven judicial reforms failed to account for a stable institutional framework for TAC policies in post-accession Romania after more than a decade of EU membership and EU conditionality under the CVM.
In the following paragraphs, I will first introduce the underlying theoretical framework of Europeanization and then link it chronologically to the empirical evidence, suggesting an insufficiency of EU-driven reforms, as well as ‘top-down’ adaptational pressure mechanisms in its process to establish a stable institutional framework for the successful implementation of TAC policies. In the theoretical part I will first present the theoretical framework of
Europeanization, elaborate on the mechanisms that hinder an efficient progress during the process, and then put them in context to my empirical argument. The latter will be
presented chronologically by particularly looking at the pre- and post-accession
Europeanization efforts concerning the Superior Council of Magistracy (SCM), as watchdog agency of judicial independence, and the National Anti-Corruption Directorate (DNA), as main body of prosecution and conviction for high-level corruption offences. The recent backtracking will be further identified as a symptom of the underlying issue at hand,
resulting in negative repercussions for both aforementioned agencies, as legislative powers undermine EU reform policies concerning the future consolidation of judicial independence and the fight against high-level corruption.
4 March and Olsen (1989), cited in Schimmelfenning, F. & Sedelmeier, U. ‘The Europeanization of Eastern Europe: The
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2. A theoretical framework of Europeanization
Analysing the process of European integration, one will inevitably encounter a multitude of approaches to the theory of Europeanization. Concerning this paper, however, the main approach to Europeanization theory will be defined as ‘top-down’, emphasizing the external drive of Europeanization,-within the external incentives model (EIM)-, by EU institutions through ‘’sanctions and rewards that alter the cost-benefit calculations of domestic actors’’.5
Accordingly, as the process of Europeanization accelerated through increased EU integration during the decades that followed the 1957 Treaty of Rome as a cornerstone of the birth of the EU, it became important to distinguish the concept of norm-uploading and downloading. As Börzel & Risse frame the birth of Europeanization theory as the ‘’Process of
a-construction, b-diffusion and c-institutionalization of rules, procedures, policy paradigms, and shared beliefs and norms which are first defined and consolidated in the making of EU public policy and then incorporated in the logic of domestic discourse, identities, political structures and public policies’’6, the 6 founding fathers of the EU (Italy, Germany, France, Belgium, the Netherlands and Luxembourg) uploaded their respective norms within the newly found entity of the EU, thereby defining and consolidating a supranational set of norms. Countries that envisioned to join the EU, thus started the process by delegating a certain degree of domestic and external sovereignty to EU institutions, as defined under accession
conditionalities. Those new member states, however, either did not, or just to a minute degree, have had the opportunity to upload their norms into the already constructed body of legislation, which we can broadly define as the ‘acquis communautaire’, that today comprises over 80.000 pages of EU legislation, split up into 35 chapters7. They were thus
obliged to download the set of norms and regulations into their respective systems and institutionalise them to such a degree, that they would conform to the minimal
requirements of the respective accession treaty.
The concept of ‘reinforcement by reward’ within the EIM, provided the main tool to ensure that aspiring candidate countries adjust their institutional structure by efficiently applying EU legislation. If the target government complies with EU conditionality, it is permitted to access the EU as a new member state. If not, aspiring members are simply denied
membership, which then forces them to either continue their trajectory of not holding up to EU conditionality and to abandon the effort of becoming a full-fledged member or ideally, to strengthen efforts to fulfil the necessary requirements. Within the first scenario, it is possible that the EU first withdraws its financial support if certain deadlines have been missed, which is documented within the Commission’s ‘Regular Reports’ on the progress of the country towards meeting the accession conditionalities. In general, however, a first step to accession
5Schimmelfenning, F & Sedelmeier, U. ‘The Europeanization of Eastern Europe: The External Incentives Model Revisited. Paper for the JMF 25 conference, EUI, 2017, p. 1
6 Börzel, T. A. & Risse, T. ‘Europeanization: The Domestic Impact of European Union Politics’. Handbook of European Union
Politics; 2007, p. 485
7Schimmelfennig, F & Sedelmeier, U. ‘The Europeanization of central and eastern Europe’. Cornell University Press, 2005, p.
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talks is the conditionality of a ‘’differential empowerment of domestic actors’’.8 According to
Schimmelfennig & Sedelmeier, its successful realisation results in the diversification of power, i.e. the delegation of authority to different institutions, thus gaining independence and diluting the previous power structure. As a consequence, Schimmelfennig & Sedelmeier stipulate that EU conditionality ‘’then changes the domestic opportunity structure in favour
of these domestic actors and strengthens their bargaining power vis-à-vis their opponent in society and government.’’9 As a result, the EU can push for institutional change amongst
several domestic entities, by reallocating authority between domestic institutions such as parliamentary and judicial ones, the latter ideally growing isolated and independent from the former. This heterogenization and democratisation of domestic institutions, then already resembles the long-established systems of the EU founding states, which facilitates EU accession and guarantees a successful implementation of future EU conditionality, if the threefold separation of state powers has been successfully met.
The degree of pressure through rewards or sanctioning, that the Commission has to exert to achieve a successful separation of power, however, depends on the pre-existing conditions and mediating factors at the domestic level. Therefore, it is important to discern the concepts of ‘goodness of fit’ and ‘policy misfit’. The aspiring member states that are in the process of implementing changes have to do so by, as aforementioned, downloading the set of norms provided by the EU Commission. The underlying process, however, must be
tailored to each new candidate country, as the EU has to consider how closely the
envisioned changes fit with the pre-existing conditions at the domestic level. Accordingly, Cowles, Caporaso & Risse argue that a poor fit between new changes and pre-existing conditions ‘’implies a strong adaptational pressure’’, while a ‘’good fit implies weak
pressure’’.10 The level of compatibility, therefore, determines the amount of adaptational
pressures that EU institutions got to exert upon the domestic institutions of the aspiring member state. The amount of exerted adaptational pressures has been further defined by Börzel & Risse, who distinguished three different degrees of domestic change. First, as ’Absorption’, i.e. the implementation of EU policies ‘’without substantially modifying existing
processes, policies and institutions’’, thus representing a relatively high level of goodness of
fit and therefore requiring minimal adaptational pressure. Secondly, as ‘Accommodation’, i.e. the adaptation of existing processes, policies and institutions by accommodating new ones without changing the already existing ones and thus representing a modest level of goodness of fit and adaptational pressure. And at last, as ‘Transformation’, i.e. the
replacement of existing policies, processes and institutions by ‘’substantially different ones,
or altering existing ones to the extent that their essential features are fundamentally changed’’, thus representing a fundamental policy misfit and a high level of adaptational
pressures.11
8Schimmelfennig, F. & Sedelmeier, U. ‘The Europeanization of central and eastern Europe’ p. 12 9 Schimmelfennig, F. & Sedelmeier, U. ‘The Europeanization of central and eastern Europe’ p. 12
10 Cowles, M. G, Caporaso, J. A, & Risse, T.‘Transforming Europe: Europeanization and domestic change’. Cornell University
Press, 2001, p. 2
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2.1 A theory of incomplete Europeanization
As many former USSR satellite states began the process of Europeanization in the late 1990s and acceded between 2004-2007, it became evident that they would fall under the second and third degree of domestic change, which thus resulted in an enormous need for
adaptation and transformation, as those countries underwent institution-building in addition to institutional change. Accordingly, scholars such as Cowles, Caporaso & Risse argued, that ‘’institutional adaptation can be difficult, not only because of the costs of bringing domestic
institutions in line with Europeanization but also because domestic institutions represent long-standing habits of doing things’’, thus being inherently path dependent. 12 Those
long-standing habits were thus to pose additional obstacles to the process of a gradual and smooth transition from a former communist system to one that resembles the one of the EU founding fathers. The main obstacle that is being pointed out by scholars is the monopolised institutional structure that represents a hierarchical power structure opposed to the
envisioned liberal democratic system that should gradually emerge through
Europeanization. The required adaptational pressures under the EIM, should ideally put forth a deep Europeanization of domestic institutions by incentivising change to such a degree that those obstacles could gradually be overcome. Given the deeply centralised and monopolised institutional structure, however, it might be difficult to push for deep
institutional transformation, as those long-standing habits are engrained in the DNA of the respective domestic entities.
As a result, domestic actors with vested interests to preserve a certain status quo might condition a mere downloading of EU-driven reform, which might have the unanticipated effect of resulting in ‘’shallow Europeanization’’, given the fragility of domestic institutions and the differential balance of power.13 EU-driven reform policies would thus be absorbed
superficially without really implementing them efficiently to meet the target conditionality of the respective accession treaty. After the pre-accession membership incentive generally pushes aspiring member states to swiftly promulgate EU-driven reform policies, a crucial post-accession change in the incentive structure and thus EU bargaining power vis à vis new member states takes place. While the insufficient implementation of EU norms results in a delay of membership, and therefore pushes aspiring candidates to fall in line, scholars such as Sedelmeier argued that ‘’the application and enforcement of EU rules after accession will
be problematic’’14, given the absence of the membership incentive as main leverage. The
scaling down of EU adaptational pressures through the cessation of the membership incentive might thus imperil the further implementation of EU-driven reforms, especially if the deep transformative change through the differential empowerment of domestic actors has been insufficient hitherto. Accordingly, scholars such as Tortola argue that
12Cowles, M. G, Caporaso, J. A, & Risse, T.‘Transforming Europe’, p. 3
13 Börzel, T. A. & Risse, T.‘Europeanization: The Domestic Impact of European Union Politics’, p. 491
14 Pridham, G. ‘Romania and EU membership in comparative perspective: A post-accession compliance problem?
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‘’transformative change is better able than accommodation to withstand variations in the
circumstances that brought it about.’’15 The underlying circumstances that have brought
about the change naturally consist of the interplay between EU driven adaptational pressures through sanctions or rewards and ideally, empowered domestic change agents, who push for further implementation of EU conditionality if having been empowered enough through the reallocation of power. If not, variations in the circumstances that brought about a certain degree of change could imperil domestic change agents and thus leave the EU as the sole change agent in face of powerful domestic actors eager to defend their vested interests. The change in the incentive structure might thus require additional post-accession adaptational pressures such as defined in the Treaty of Amsterdam (1997), which established procedures for dealing with a serious and persistent breach of EU law by new member states. Accordingly, the Commission has the authority to commence
infringement proceedings under Article 258 of the Treaty on the Functioning of the EU against member states, which could culminate in a trial at the European Court of Justice if the respective member state continues its trajectory of non-compliance with Community law.16 Concerning further serious breaches of Community law, the Commission could trigger
Article 7 as a last instance, which would suspend the member’s voting rights in the EU
Council and may culminate in a cut of EU funds if the member breaches EU principles such as the rule of law as defined under Article 2 in the 1997 Treaty of Amsterdam.17 If the EU-driven
reform policies do not constitute EU law, however, it might become difficult to justify infringement proceedings if a new member state merely backtracks on EU conditionality as defined within certain policy recommendations in the respective accession treaty.
As my argument concerns the instability of the institutional framework to guarantee an implementation of long-lasting and irreversible TAC policies, it is important to define what I mean by TAC, as there is a broad field of legislation that falls under this category. Within the framework of this thesis I will focus on those TAC policies outlined by the European
Commission in the accession treaty, that suffer under the recent backtracking by
government officials. In the recent case, those policies concern the change of the penal code and of the appointment and surveillance structure of the DNA and the SCM, the latter one being the main guarantor for judicial independence in Romania. Given that domestic lawmakers have the authority to adopt those TAC policies, the underlying paradox is that lawmakers thus promulgate policies as to restrict their unlawful conduct by establishing higher benchmarks of transparency and disclosure. Ideally, the result would be an increased accountability of government officials, which would deter any unlawful conduct that falls under high-level corruption due to the preventive nature of TAC policies and their underlying penalties. But as TAC policies put constraints on decision makers themselves, the likeliness of parliamentary opposition to those restrictions may pose a serious problem to
15
Tortola, P. D. ‘Europeanization in Time: Assessing the Legacy of URBAN in a Mid-size Italian City’, Department of Social and Political Sciences, University of Milan, European Planning Studies, Vol. 24, No. 1, 2016, p. 101
16 European Commission. ‘Infringements proceedings’, https://ec.europa.eu/transport/media/media-corner/infringements-proceedings_en (Accessed 20. November 2018)
17Iusmen, I. ‘EU Leverage and Democratic Backsliding in Central and Eastern Europe: The Case of Romaniaʼ. Department of
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Europeanization efforts of domestic agencies such as the judiciary, especially considering the post-accession change in incentivisation. The chances of encountering a shallow absorption of those TAC policies that translate into negative repercussions for corrupt lawmakers might thus be particularly high. To further outline the theoretical framework, I will use Precupetu’s definition of high-level corruption as an ‘’illegal conduct that represents a reciprocal unlawful
relationship between two or more benefitting actors’’, as it is the underlying driver for
government interference in Romania.18 I will emphasize on its prevalence amongst public
officials, resulting in frequent insurgencies in the judicial process to prevent future prosecutions and increased implementation of EU TAC conditionality by the judiciary. Outlining judicial independence, I will use the definition of it as ‘’the ability of courts and
judges to perform their duties free of influence or control by other actors’’, as defined in the
International Encyclopedia of Political Science in accordance with the ‘Basic Principles on the
Independence of the Judiciary’ established by the UN in 1985.19
My final argument effectively concerns the misplacement and insufficiency of EU-driven reform policies concerning the consolidation of the judiciary as an insulated and
independent entity. The insufficient ‘top-down’ adaptational pressure mechanisms exerted by EU institutions during the post-accession period were unable to ensure a successful implementation of post-accession TAC policies and conditioned backtracking on the progress already made. From 2010 onwards, EU TAC conditionality as defined within CVM
benchmarks was followed annually by the Commission’s recommendations without a well-defined ‘if-scenario’, concerning future backtracking on those terms. The fact that the infringement procedure and Article 7 can only be triggered by a consistent breach of
Community law, thus facilitates backtracking on mere ‘recommendations’ by domestic actors with vested interests, as many of those recommendations have only been tailored to EU-driven reform concerning Romania and do not constitute EU law. I will exemplify the recent backtracking as a symptom of the underlying institutional instability by looking at two indicators that influence the state of judicial independence to the benefit of the current government coalition. The first indicator that I will focus on, is the backtracking concerning recent amendments to the Penal Code, effectively decriminalising certain high-level
corruption offences. The second one concerns the amendments to the appointment and surveillance structure of judicial institutions by delegating even more authority to the Minister of Justice (MoJ). The latter can thus effectively curb judicial independence by appointing partisan magistrates, judges and prosecutors alike, while intimidating or indicting those that judge and prosecute in a non-partisan way. As the data in the annual ‘Regular
Reports from the Commission to the European Parliament and the Council on progress in Romania under the Co-operation and Verification Mechanism’ reflect and praise a certain
progress on judicial reforms aimed at strengthening the judiciary’s ability to prosecute high-level corruption cases, they also point to major deficiencies in implementing EU
conditionality, particularly concerning the DNA and SCM. Accordingly, progress has been
18 Precupetu, I. ‘Corruption in Romania: First Steps Towards a Grounded Theory of Corruptionʼ. Discussion Paper Series, No
4, 2007 p. 15
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visible, but not irreversible as shown by the recent emergency decrees and indictments. While the change in incentivisation did not have to result in today’s backtracking, I will argue that the latter is a symptom of the underlying insufficient process of Europeanization. I will therefore present my argument chronologically as the first step of capacity building has not been sufficiently succeeded by a deep institutional transformation, before the change in the Commission’s bargaining power. The administrative capacitation of judicial bodies was of utmost importance as to guarantee a certain level of functioning in the first place, which lead to an increased budget, more staff, administrative modernisation and thus to a more competent and able judiciary. The second step of a deep institutional transformation through the empowerment of the judiciary as a fully insulated and independent entity, however, has been neglected as exemplified by a non-binding reallocation of authority through CVM recommendations after the change in bargaining power took place. This passive stance of the Commission in face of Romania’s entrenched heritage of institutional monopolisation failed to dilute the unequal power structure, as exemplified by the recent symptoms of backtracking through emergency decrees, which I am going to demonstrate empirically in the following paragraphs.
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3. The pre-accession Europeanization of Romania’s judiciary
Underlying my analysis on why EU driven reforms did not account for a stable institutional framework that could guarantee a gradual progress of EU-driven TAC policies, as exemplified by the recent backtracking, is the fact, that the Europeanization process of former soviet satellite states,- frequently coined as Central East European Countries (CEECs)-, is piecemeal and slow, ideally resulting in gradual progress that manifests itself over the years. Romania, however, has shown a worrisome inconsistency in its Europeanization process of its judiciary during the last 20 years, often only pushing for progress under the omnipotence of the membership incentive and safeguard clause, the latter having been introduced to sanction Romania during a 3-year post-accession period if authorities would fail to implement EU conditionality. To understand the insufficiency of post-accession EU pressure mechanisms, insufficient EU-driven reforms, the preceding unequal power structure and the underlying organizational structure, one must take a short look at Romania’s pre-accession history, as it was facing the prospect of being denied the membership that it aspired to for more than a decade.
‘’Membership requires that candidate countries have achieved stability of institutions guaranteeing democracy, the rule of law, human rights, respect for and protection of minorities, the existence of a functioning market economy as well as to cope with
competitive pressure and market forces within the Union.’’20 – excerpt from the Copenhagen
Presidency conclusions (1993)
As it became clear that many former CEECs would apply to join the Union, EU lawmakers and authorities came together at the Copenhagen European Council to establish the
‘Copenhagen criteria’, that redefined the minimum requirements an aspiring candidate would have to meet before acceding the EU. As predicted shortly after the fall of the USSR, its former satellite states began to apply for EU accession under the Union’s fifth
enlargement, amongst whom, Romania. After nearly 50 years of totalitarian communism, Romania experienced its revolution during Christmas 1989. Following the execution of Ceausescu, the long-ruling dictator was succeeded by Iliescu, an influential former
communist under the Social Democratic Party (PSD), as heir to the former communist party. Unlike other CEECs such as Poland, Romania did not have any noteworthy opposition, which enabled former communist players to benefit from usurpations of the political, judicial and economic sphere as Romania’s democratic system had just been born.21 As those players
took charge of Romania’s new born democracy, its path towards becoming a European liberal democracy would be long and cumbersome, especially due to the fact that the process of the threefold separation of state powers in the legislative, executive and judicial branch had just begun. Since most of former soviet satellite states started accession talks
20 Copenhagen European Council. ‘Presidency Conclusions; Relations with the Countries of Central and Eastern Europe’, p.
1, http://www.europarl.europa.eu/enlargement_new/europeancouncil/pdf/cop_en.pdf , (Accessed 03. November 2018) 21 Precupetu, I. ‘Corruption in Romania’ p. 22
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with the EU in the early 1990s, -with the prospect of enormous economic benefits, backed by the majority of their populations-, Romanian authorities felt pressured to follow suit as the poor masses were favouring European integration. When Romania signed the
Agreement for Romania’s Association to the EU22on February 1, 1993, it prepared for the
process of obligating domestic authorities to gradually adjust the conduct of their
institutions to the conduct of EU institutions within the framework of a strict code of laws, as EU accession only comes with `top-down` conditionality.
Since the first reforms of the Romanian judicial system were introduced in 1992, -substituting the transitional and short-term post-revolutionary code of law-, under EU guidance, by accommodating a new legislation concerning the Law on the Organisation of the Judiciary and Civil Procedure Code (Law no. 92/1992), it became clear that the EU would focus upon reforming the judicial system as to guarantee a successful implementation of future EU conditionality. The new law, as amended in the following years, manifested an organizational scheme for Romania’s judiciary along 144 articles, delegating judicial authority to the High Court of Cassation and Justice and later on also to the SCM under Article 1 (1) and 1 (2).23 Wanting to preserve a certain level of domestic sovereignty,
however, the Commission went along with the manifestation of Article 5 (1), proclaiming that ‘’The Ministry of Justice ensures the proper organization and administration of justice as
public service.’’24, which in itself does not have to result in negative repercussion for the
state of judicial independence as long as the Ministry of Justice acts in non-partisanship and in accordance with EU conditionality. Following the 1991 ‘Agreement on Commerce and
Cooperation between Romania and the EU’, the focus was put on improving economic
relations to pull Romania out of its staggering state of poverty.25 After the Commission
published its positive ‘Opinion on Romania’s application for Membership of the EU’ in 1997, it started the process of strengthening Romania’s domestic institutional capacity.
Accordingly, the EU allocated a total of 452 million € to reform the public administration and judicial capacity under the PHARE program between 1998 and 2006.26 Following the first
accommodation of Union legislation, agencies had to be established to efficiently follow judicial conduct and to guarantee surveillance of lawful procedures, such as the National Anti-Corruption Prosecutor’s Office (NAPO), the National Integrity Agency (ANI) and most importantly, the DNA and the SCM. A whole new body of judicial institutions was thus introduced to the Romanian judicial system as institution building took place to delegate
22 Europe Agreement, ‘Establishing an association between the European Economic Communities and their Member States, of the one part, and Romania, of the other part’, https://wits.worldbank.org/GPTAD/PDF/archive/EC-Romania.pdf (Accessed 03. November 2018)
23The Parliament of Romania, ‘Law on judicial organisation’, The Official Journal of Romania, Part 1, http://rai-see.org/wp-content/uploads/2015/08/Law_on_judicial_organisation.pdf p.1
24 The Parliament of Romania, ‘Law on judicial organisation’, p.2 25 Ganfalean, D. I. ‘The Implementation of European Law in Romania’,
http://www.uab.ro/reviste_recunoscute/reviste_drept/annales_11_2008/ganfalean.pdf p.117
26 Mendelski, M. ‘EU-driven judicial reforms in Romania: a success story?’ Faculte´ des Lettres, des Sciences Humaines, des
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administrative capacity to such a degree that every agency could efficiently accommodate further EU-driven reforms and execute its tasks without having to worry about an
insufficient capacitation to do so. With the establishment of those institutions the EU envisioned a long-term goal of ridding Romania of its inherited phenomenon of high-level corruption, a process in which the DNA took the main role as having the authority to
investigate, prosecute and convict public officials for unlawful conduct. With the support of the PHARE money considerable progress has been made, concerning the strengthening of the guarantor of judicial independence and watchdog of the judiciary, the SCM, increasing its annual budget from 3 million € to 20 million € in just 3 years.27 However, increasing judicial
capacity did not equal increasing judicial independence as the SCM has still been defined as ‘’politically biased in its functioning, selectively using internal investigations to stop
prosecutors who are too pushy against politicians.’’28 While a national scandal broke loose in
November 2004, caused by the leak of the full transcripts of a PSD executive meeting during which politicians were blatantly talking about manipulating the judiciary and bribing
journalists, a switch in power took place as the December 2004 election resulted in a win for the centre-right under president Basescu, who highly politicised the fight against high-level corruption.29 At the same time, at the European Council meeting, the Council Presidency (at
the time being the Netherlands) wished to end negotiations with Romania and to deny their prospective membership on grounds of disquiet over backtracking on progress, concerning the fight against corruption and authoritarian practices. In addition, Germany threatened not to ratify the treaty, which would have blocked Romania’s EU accession.30 The
Commission however, agreed upon a pre-accession safeguard clause of 11 points,
emphasizing the acceleration of the fight against high-level corruption, which would result in a delay in entry if Romania would continue to show shortcomings on one of the
commitments made.31
Under the stick of a prospective delay in membership or even a temporary blockade in further accession talks, the new Romanian government introduced widespread changes in public administration and especially within the judiciary by appointing new MoJ, Monica Macovei. From 2004-2007, Macovei supported the independent appointment of judges, magistrates and prosecutors by the SCM instead of the MoJ, which resulted in more merit-based selections instead of partisan connections and nepotism. In addition, Macovei was able to augment the number of administrative officers from 151 to 240.32 In an effort to
increase judicial independence, she pushed for the appointment of young reform-minded magistrates to slowly replace former communist ones who were nurtured in times of
widespread corruption and nepotism. And most importantly, she was able to strengthen the authority of the DNA by increasingly linking it to the SCM instead of the Ministry of Justice,
27 Mendelski, M. ‘EU-driven judicial reforms in Romania: a success story?’, p. 29
28 Global Integrity Report, 2008, in Mendelski, ‘EU-driven judicial reforms in Romania: a success story?’ p. 33 29 Pridham, G. ‘Romania and EU membership in comparative perspective’, p. 178
30 Trauner, F. ‘Post-accession compliance with EU law in Bulgaria and Romania: a comparative perspective.ʼ European
Integration online Papers (EIoP), Special Issue 2, Vol. 13, Art 12, 2009, p. 5
31 Pridham, G. ‘Romania and EU membership in comparative perspective’, p. 173 32 Mendelski, M. ‘EU-driven judicial reforms in Romania: a success story?’, p. 29
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which enabled it to increasingly investigate and prosecute independently without the obstruction of justice by government officials.33 With the initiatives of Macovei as a major
domestic change agent, Romania experienced exponential levels of judicial transformation in contrast to the previous 4 years under MoJ Stanoiu (PSD), having been described by two judges as ‘’the darkest period for the Romanian legal system from the standpoint of the
independence of post-communist justice’’.34 With the empowerment of Macovei and her initiatives of not just capacitating through the enhancement of financial and technical quality and quantity, but also transforming new institutional change agents such as the DNA and SCM through the reallocation of authority, the EU welcomed Romania amongst its ranks as a new member state on the first of January 2007.
3.1. Post-accession Europeanization of Romania’s judiciary
"It was hard, but we arrived at the end of the road. It is the road of our future. It is the road
of our joy,"35 Romanian President Traian Basescu, 2007
As president Basescu uttered those words in front of tens of thousands of Romanians gathering in Bucharest on New Year’s Eve, the crowd cheered in joyfulness as a new path into the future as an EU member just began. However, scholars of Europeanization theory such as Sedelmeier already argued in 2006, that ‘’the application and enforcement of EU
rules after accession will be problematic’’, given the absence of the membership incentive. 36
While President Basescu proclaimed that Romania arrived at the end of the road, it was rather a probe to see if the change in the incentivisation structure would decelerate the pace of further Europeanization. To prevent the latter trajectory, certain states such as Romania and Bulgaria, also coined as ‘’the two laggards of the Eastern Enlargement’’37, had additional sanctions defined within their accession treaties that put them in a state of post-accession monitoring. Particularly Romania had to sign agreements that put additional conditions in place as to guarantee a successful post-accession compliance, concerning EU-driven judicial reforms under the CVM. 38 By establishing a safeguard clause that could lead
to a suspension of voting rights in the Council and cuts of EU funds during a period of 3 years after accession,39 the EU envisioned to prevent post-accession backtracking on 4 main
benchmarks as agreed upon in the CVM.
33 Mendelski, M. ‘EU-driven judicial reforms in Romania: a success story?’p. 32
34Dumbrava and Calin 2009, p. 126, cited in Mendelski, M. ‘EU-driven judicial reforms in Romania: a success story?’, p. 31 35 BBC News. ‘Eu welcomes Romania and Bulgaria’, BBC News, 01 January 2007,
http://news.bbc.co.uk/2/hi/europe/6222673.stm (Accessed 12 November 2018)
36 Pridham, G. ‘Romania and EU membership in comparative perspective’, p. 170 37
Trauner, F. ‘Post-accession compliance with EU law in Bulgaria and Romania: a comparative perspective.ʼ In:
Schimmelfennig and Trauner (eds): Post-accession compliance in the EUʼs new member states, European Integration online Papers (EIoP), Special Issue 2, Vol. 13, Art 12, 2009, p. 2
38 Pridham, G. ‘Romania and EU membership in comparative perspective’ p. 175
39 Johnson, A. & Radu, B. ‘The Effect of EU Anti-Corruption Measures on The Romanian Judiciaryʼ. International Journal for
- 16 - Those are:
• Benchmark 1: ‘’Ensure a more transparent, and efficient judicial process notably by
enhancing the capacity and accountability of the Superior Council of Magistracy.’’40 • Benchmark 2: ‘’Establish, as foreseen, an integrity agency with responsibilities for
verifying assets, incompatibilities and potential conflicts of interest, and for issuing mandatory decisions on the basis of which dissuasive sanctions can be taken’’41
• Benchmark 3: ‘’Building on progress already made, continue to conduct professional,
non-partisan investigations into allegations of high-level corruption’’42
• Benchmark 4: ‘’Take further measures to prevent and fight against corruption, in
particular within the local government’’43
The envisioned post-accession progress is first analysed annually by the European Commission’s ‘Regular Reports’, based on data submitted by governmental institutions, domestic agencies and NGOs, and then complemented by additional recommendations that aim to prevent further implementation deficits during the process of norm
accommodation/transformation. Ideally, those EU-driven policy recommendations are being implemented voluntarily, -and without the interference of other domestic veto players-, by domestic institutions such as judicial ones. While the Commission established the CVM and safeguard clause to monitor benchmarks set for the fight against high-level corruption and to improve judicial functionality after EU accession, Romania’s democratic backsliding began just months after its 2007 EU accession, when then reformist MoJ Macovei was sacked during a feud between the prime minister and president.44 By then, only 5000 Romanians
were protesting in the streets, which certainly reflects a change in awareness of the Romanian population, compared to the recent mass demonstrations. While Macovei was considered the main reformist that enabled Romania to accede to the EU by pushing for increased accommodation of EU-driven reforms, the latter institution could not prevent her dismissal as it was triggered by a reshuffle of the parliament and not during a breach of law.45 The 2007 Regular Report already pointed to steps backwards committed by domestic
authorities, by outlining the governmental ‘’weakness in translating (these) intentions into
results’’.46 Scholars such as Tom Gallagher even questioned if Romania deserved EU
membership as he argued that Romanian authorities ‘’tricked the EU into offering full
40 European Commission.’ Final Report from the Commission to the European Parliament and the Council on Romania's
progress on accompanying measures following Accession’ Brussels, COM (2007) 378, 2007, p. 5, https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:52007DC0378&from=EN (Accessed 03. November 2018)
41 European Commission.’ Final Report’, p. 12 42 European Commission.’ Final Report’, p. 15 43 European Commission.’ Final Report’, p. 17
44 Beunderman, M. ‘EU reformer sacked in Romanian cabinet shake-up’, Euobserver; political affairs, 03 April 2007, https://euobserver.com/political/23828 (Accessed 13. November 2018)
45 Pippidi, A. M. ‘Questions and answers on Romania’s anticorruption implosion’, Romaniacurata, 06 February 2017, http://www.romaniacurata.ro/en/questions-and-answers-on-romanias-anticorruption-implosion/(Accessed 14. November 2018)
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membership in return for far-reaching reforms, which Romanian politicians have refused to carry out in the post-accession stage’’, while Romanian scholar Pippidi argued that ‘’The Romanian political elite is believed to have converted to EU principles, though mainly in rhetoric alone.’’47 Accordingly, Mendelski aggregated data from the 2008 Global Integrity
Index, that differentiated between five de jure and de facto aspects concerning Romania’s state of judiciary and aligned them on average scores on a scale from 0 to 100%.
Table 1. De jure and de facto judicial average scores on a scale from 0 to 100% (2008)48
De jure De facto Judicial appointment 100 25.0 Judicial independence 100 50.0 Judicial accountability 100 42.7 Conflict of interest 100 50.0 Asset disclosure 100 50.0
Source: Global Integrity Index. (from dataset available at http://www.globalintegrity.org/documents/Global IntegrityIndex2008.xls).
Accordingly, the Commission’s 2008 CVM report points to significant shortcomings as the Parliamentary Chamber and MoJ blocked DNA investigations into high-level corruption offences committed by parliamentarians of the governing coalition.49 While the DNA has the
authority to prosecute parliamentarians, it increasingly experienced constraints by government insurgency, reflecting the meagre state of de facto judicial independence conditioned by the lack of a deep institutional transformation in the vertical power
structure. Accordingly, president Basescu labelled the constitutional court ‘’a shield against
corruption’’, as it stated that the parliament had to approve investigations against
high-ranking politicians, which enabled it to circumvent the rule of law as exerted by the DNA.50
This ambiguity of law, that on the one hand delegates prosecutive authority to the DNA but on the other hand allows for parliament to block investigations and prosecutions of its members, reflects the divergence between de jure and de facto judicial independence as analysed by Mendelski. Even though Macovei and Basescu were able to delegate more prosecutive authority to the DNA, they could not invalidate the authority of parliament to obstruct investigations, the latter institution being clearly superior in terms of authority. While the safeguard clause was intact during that period, the Commission decided to not invoke safeguard provisions as severe adaptational pressures, which would have forced the government to respect and abide by the lawful conduct of the DNA.51 With the end and
47 Gallagher, 2009 and Pippidi, cited in Trauner, F. ‘Post-accession compliance with EU law in Bulgaria and Romania: a
comparative perspective.’ p. 6
48 Global Integrity Index 2008, Romania in Mendelski, M. ‘EU-driven judicial reforms in Romania: a success story?’ p. 35 49European Commission.’ Final Report from the Commission to the European Parliament and the Council on progress in
Romania under the Co-operation and Verification Mechanism’ Brussels, COM (2008) 494, 2008, p. 4, https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:52008DC0494&from=EN (Accessed 03. November 2018)
50Trauner, F. ‘Post-accession compliance with EU law in Bulgaria and Romania: a comparative perspective.ʼ, p. 10 51 ‘’ The Commission considers support to be a more effective than sanctions and will not invoke now the safeguard
provisions set out in the Accession Treaty. The continuation of the Cooperation and Verification Mechanism will be needed for some time.’’, in Commission of the European Communities.’ Final Report’, 2008, p. 7
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discontinuation of the safeguard clause sanctioning mechanism at the end of 2009, the Commission redefined the CVM with the following statement:
‘’The kind of deep-seated changes that are needed can only come from within Romanian society. The CVM is a support tool in this endeavour; it is not an end in itself nor can it replace commitment that Romanian authorities need to make in order to align the judicial system and practice with general EU standards.’’52
The change in the incentivisation structure thus changed from the Commission being able to exert high adaptational pressures under the safeguard provisions, -in face of a breach of EU conditionality as defined under the 4 main benchmarks and their underlying
recommendations-, to it being unable to exert any noteworthy pressure to prevent future backtracking on mere recommendations that do not constitute Community law. The change in incentivisation thus occurred in a period where capacity-building was still underway as deep transformations mainly occurred with the establishment and gradual capacitation of additional judicial institutions under EU monitoring. The consolidation of judicial
independence, however, would have benefited from an extension of the safeguard clause as it would have pressured the government coalition to at first accommodate EU policies as to consolidate judicial independence under benchmark 1 and secondly to refrain from
obstructing the judicial process by blocking investigations, thus juxtaposing benchmark 3. The abovementioned statement, however, leaves the work to domestic change agents whose stability is highly dependent on the domestic circumstances at hand as exemplified by the dismissal of Macovei in 2007 and Kovesi in 2018.
The following years could be described as a story of mixed success as two major government crises took place in 2012 and 2015, the former entailing president Basescu’s impeachment by anti-constitutional emergency decree and by temporarily usurping the authority of the judiciary, both committed by the USL (Social Liberal Union) governing coalition. Given the direct breach of Community law under Article 2 (TEU17), then Commission president Barroso established a to do list of 11 points that the USL coalition would have to enact upon to prevent infringements proceedings and a prospective triggering of Article 7.53 As the
government fell in line with Barosso’s requirements through the re-establishment of the rule of law by the judiciary and the re-instalment of Basescu as rightfully elected president, the DNA managed to sentence former Prime Minister Adrian Nastase (PSD) to 4 years in prison as a warning shot at corrupt officials.54 Following the government crisis, re-installed
president Basescu swiftly appointed Laura Kovesi as chief prosecutor and head of the DNA in 2013, who reformed the agency and accelerated the fight against high-level corruption as a reform-minded change agent. In 2015, she indicted then Prime Minister Victor Ponta (PSD)
52 European Commission.’ Final Report from the Commission to the European Parliament and the Council on progress in
Romania under the Co-operation and Verification Mechanism’ Brussels, COM (2009) 401, 2009, p. 6,
https://ec.europa.eu/transparency/regdoc/rep/1/2009/EN/1-2009-401-EN-F1-1.Pdf
(Accessed 03. November 2018)
53 Iusmen, I. ‘EU Leverage and Democratic Backsliding in Central and Eastern Europe: the Case of Romaniaʼ. Department of
Politics and International Relations, University of Southampton. Volume 53. Number 3. 2015, p. 597
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for charges of forgery and money-laundering, which ultimately led to his resignation as tens of thousands of demonstrators took to the streets to protest against high-level corruption after the tragic nightclub fire that caused 64 deaths.55 With the consolidation of the DNA’s
authority through the appointment of Kovesi, further progress has been made in the upcoming years. The underlying unequal power structure that conditions the instability of judicial institutions, however, has still been highlighted in the 2016 Regular Report as it states that ‘’In 2015, Parliament has refused about one third of requests from DNA for the
lifting of immunity of Members of Parliament to allow for the opening of investigations or the application of preventive detention measures.’’56 Given that the Commission already requested in its 2013 report, a constitutional change, concerning the suspension of immunity of Ministers that are subject to integrity rulings, it is evident that Parliament ignored the request by recommendation.57 As domestic change agents were left to
themselves in the aftermath of the abrogation of the safeguard clause and in a climate of frequent political conflicts, -enfeebling the stability of domestic institutions that have not been empowered enough-, a new class of domestic actors took charge of the government after winning the 2016 (39 % voter turnout)58 legislative elections.
3.2. The limits of institutional change in Romania
Hitherto, the limits of institutional change have become evident as powerful domestic actors were able to thwart further progress concerning the consolidation of judicial independence by blocking investigations. While the Commission had to emphasize the strengthening of the post-communist judicial system through institutional transformations and institution
building to provide the judicial system with the means to function at first, it seemingly ignored Romania’s inherited political culture. Knowing the hierarchical institutional structure that allows for the government to circumvent jurisdiction through emergency decrees, the Commission abrogated the safeguard clause prematurely as will become more evident in the following paragraphs. In its process of Europeanization, Romania experienced major
institutional transformations during periods in which domestic change agents such as Macovei, Basescu and Kovesi were empowered. The pre-accession membership incentive provided nearly limitless opportunities of institutional transformation, as evidenced by Macovei’s initiatives of capacity-building and deep institutional change in the vertical power structure through the reallocation of judicial authority to the SCM and DNA. The
post-accession/safeguard clause period, however, has shown that the second step of a substantial change in the power structure has not been as efficient as envisioned, given the
juxtaposition between the governments right to block investigations and the DNA’s right of prosecuting government officials for misconduct. The passive stance of the Commission has
55 Patrut, M. ‘Romanian Tragedy: A Case Study on Social Media Fighting Corruption’, Faculty of Letters, Vasile Alecsandri
University of Bacau, 8 Spiru Haret, 2017, p. 38
56 European Commission.’ Final Report’, 2016, p. 10 57 European Commission.’ Final Report’, 2013, p. 7
58 ElectionGuide, ‘Romania’, [website], 2016, http://www.electionguide.org/countries/id/178/ (Accessed 12 November
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hitherto been worrisome considering Romania’s entrenched heritage of a monopolised power structure, leaving reform-minded domestic change agents to fetch for themselves in a climate where variations in the circumstances that ensured the empowerment of those agents can equally result in their dismissal. Judicial institutions that were build during the pre-accession period of strong external stimuli through the Commission’s leverage, such as the DNA and SCM, have been consolidated through capacity-building to ensure the efficient functioning of those institutions. In the following paragraphs, I will substantiate how the second step of empowering those two institutions through the reallocation of authority has been neglected by the Commission as exemplified by the symptom of recent backtracking on already established EU-driven TAC policies as well as on further reforms that are aimed at establishing a fully independent judiciary (Benchmark 1).
3.3. Post-accession backtracking on EU-driven TAC reforms through Emergency Decree 13 (OUG 13)
With an economic growth rate of 30 % between 2005 and 2015, -despite a large workforce of 2.5 million Romanians working abroad in other EU member states-, Romania experienced the third biggest growth rate amongst CEECs after Poland and Slovakia.59 A trajectory that
has been underlined by a GDP growth of 4,8 % in 201660 followed by 7 % in 201761
respectively, thus having the fastest growth rate amongst all 28 EU member states. The prosperous news concerning Romania’s economy, however, became increasingly
overshadowed by international media coverage about the biggest anti-high-level corruption demonstrations in Romania’s history, being the largest demonstrations since the fall of the USSR in 1989. The recent protests of more than 500.000 citizens across the whole country are in face of its democratic backsliding, triggered by government plans to overhaul existing TAC laws, by enforcing emergency decree OUG 13 (ordonanta de urgenta 13) in early 2017.
Since the DNA, -as established under EU conditionality in 2002-, started to increasingly prosecute official authorities for high-level corruption offences, more than 4700 officials have been prosecuted and indicted by 2014, the majority being mayors, parliamentarians, ministers, deputies, senators, administrative officials, as well as several CEOs and
magistrates. Of those, around 1500 got convicted by final court decision.62 Accordingly,
lawmakers of the new governing coalition between the main Social-Democrat Party (PSD) and the Alliance of Liberals and Democrats (ALDE) swiftly pushed for the emergency decree
59 Hunya, G. ‘Romania: Ten Years of EU Membership’. ROMANIAN JOURNAL OF EUROPEAN AFFAIRS; Vol. 17, No. 1, 2017, p.
5
60 Hunya, G. ‘Romania: Ten Years of EU Membership’, p. 9
61 Melenciuc, S. ‘Eurostat: Romania recorded in 2017 the highest growth rate in EU, ranked 16th by nominal GDP’, Business
Review, 07 March 2018, http://business-review.eu/news/eurostat-romania-recorded-in-2017-the-highest-growth-rate-in-eu-ranked-16th-by-nominal-gdp-160456 (Accessed 15 November 2018)
62 European Commission. ‘EU Anti-Corruption Report’, Brussels, COM(2014) 38 final, 2014, p. 14,
https://ec.europa.eu/home-affairs/sites/homeaffairs/files/e-library/documents/policies/organized-crime-and-human-trafficking/corruption/docs/acr_2014_en.pdf (Accessed 10. November 2018)
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overnight, allegedly to solve overcrowding in prisons which the opposition decried as a means to circumvent future convictions of parliamentarians, such as PSD leader Liviu Dragnea, having received a two-year suspended jail sentence for rigging a referendum in 2012.63 As the emergency decree has been passed in a matter of hours, its content was
non-transparent to non-government officials, but its essential features would have pardoned many convicted government officials by revising the national penal code as such as that any abuse of office creating damages under 44.000 € would have effectively been
decriminalised. Critics and many magistrates argued that under the pretext of
decriminalising proven economic mistakes by public officials, they would be enabled and incentivised to funding overpriced projects with taxpayer money that would end up in the pockets of private businesses, who would then re-compensate the corrupt officials by bribery. 64 Public officials who were convicted for those crimes would probably have
received amnesty, which would have enabled PSD head Dragnea to run for the office of prime minister, which he was barred from due to his criminal record. Just hours after the emergency decree was passed, 10.000s of people took to the streets under the ‘rezist’ movement, spreading to 36 countries, which culminated into protests of more than 500.000 people throughout the whole country.65 As the masses were demanding the repeal of
OUG13 and the resignation of the Prime Minister, MoJ and Dragnea, the government gave in to the demand of repealing the decree, MoJ Iordache taking main responsibility and
resigning.66 While the demonstrations slowly diminished in size, France, Germany, the
Netherlands, Sweden, Belgium, Denmark and Finland declared that the emergency decree would ‘’risk jeopardising progress Romania has made over the last decade’’.67 Former MoJ
Macovei, then issued a statement condemning the Commission’s non-interventionism in face of the breach of EU conditionality as agreed upon in the CVM.
“The practice of the commission is we wait and see if it happens and then after it happens make pressure for change. And in my view, this is a losing policy, for us, for my country [Romania] and for other countries. Because after it happens it is much more difficult to change.”68 - Monica Macovei (2017)
While the protests shrunk in size at the end of 2017, the coalition felt safe enough to start pushing again for legislation that would curb the efficient implementation of TAC policies, such as decriminalising the offence of taking a bribe on behalf of someone else, restricting
63 Oltenau, T. & Beyerle, S. ‘The Romanian people versus corruption: The Paradoxical Nexus of Protest and Adaptationʼ. The
Open Journal of Sociopolitical Studies, Partecipazione e conflitto, 10(3) 2017. P. 813
64 Pippidi, A. M. ‘Questions and answers on Romania’s anticorruption implosion’, Romania Curata, 06 February 2017, http://www.romaniacurata.ro/en/questions-and-answers-on-romanias-anticorruption-implosion/(accessed 8 November 2018)
65 Al Jazeera, ‘Romanian government under pressure as 500,000 protest’, News; Romania, 06 February 2017, https://www.aljazeera.com/news/2017/02/romania-government-repeals-corruption-decree-170205141854077.html
(accessed 12 November 2018)
66 Oltenau, T. & Beyerle, S. ‘The Romanian people versus corruption’, p. 814
67 Rankin, J. ‘Romania braced for huge protests over 'big step backwards' on rule of law’, The Guardian, Brussels, 19 January 2018, https://www.theguardian.com/world/2018/jan/19/romania-braced-for-huge-protests-amid-big-step-backwards-on-rule-of-law (accessed 10 November 2018)
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the usage of wiretaps/CCTV footage during investigations and again, decriminalising certain public economic mistakes.69 In addition, the coalition tried everything in their power to sack
the head of the DNA, Kovesi, who managed to preliminarily sentence Dragnea to 3 ½ years in prison for keeping two women on the payroll of a tax funded welfare agency instead of the PSD payroll, the latter institution being their employer.70 (in appeal) As protesters were
cheering the conviction in the streets, the new MoJ Toader (PSD) tried to dismiss Kovesi of her office as chief prosecutor, which President Iohannis tried to prevent by an executive decree. The government coalition then accused Kovesi of unconstitutional conduct by undertaking partisan prosecutions, directing their dismissal request to the chief magistrate of the constitutional court, Dorneau (former PSD), who declared that ‘’the president did not
have the constitutional right to oppose a dismissal request legally initiated by the justice minister’’.71 Subsequently, Kovesi was sacked while Toader is still in the process of
substituting her with Adina Florea, to the dismay of the SCM and the president, the latter still trying to prevent her inauguration as chief prosecutor, based upon SCM
recommendations that designate Florea as having a ‘’submissive ideational attitude
inconsistent with the needs of the job’’.72 Given that the trust of Romanians toward the DNA
(59.8%), and especially in Kovesi, is much higher than in other institutions such as the Parliament (12.6%) or Government (22.6%), over 100.000 protesters took to the streets.73
The politization of the TAC struggle became even more evident in 2018, as Dragnea argued in a Trumpian manner that the ‘’witch hunt’’ against PSD officials had to be stopped74, while
the president proclaimed that ‘’politicians with criminal convictions are trying to take over
the country’s justice system and undermine efforts to fight corruption’’.75 As a follow-up, the
EU Commission stepped in by changing their language towards Romanian authorities as EU Commission Vice President Frans Timmermans declared:
"If the commission need to be brutal in our assessment, we will be. If we will need other
instruments at our disposal, we will use them. This is not a threat, this is just the commission
69 Rankin, J. ‘Romania braced for huge protests over 'big step backwards' on rule of law’
70 MacDowall, A. ‘Leader of Romania's ruling party sentenced for corruption’, The Guardian, 21 June 2018,
https://www.theguardian.com/world/2018/jun/21/leader-of-romanias-ruling-party-sentenced-for-corruption(Accessed 10 November 2018)
71 Marinas, R. S. ‘Romania’s president removes chief anti-corruption prosecutor’, Reuters, 9 July 2018,
https://uk.reuters.com/article/uk-romania-corruption/romanias-president-removes-chief-anti-corruption-prosecutor-idUKKBN1JZ0MK (accessed 12 November 2018)
72 European Commission. ’Report from the Commission to the European Parliament and the Council on progress in Romania
under the Co-operation and Verification Mechanism; Romania: Technical Report’ Brussels, COM (2018) 851 final, 2018, p.11, https://ec.europa.eu/info/sites/info/files/technical-report-romania-2018-swd-2018-swd-2018-551_en.pdf (Accessed 14. November 2018)
73 Inscop Research. ‘Barometrul Adevarul despre Romania’, Inscop.ro, 2016, p. 12, http://www.inscop.ro/wp-content/uploads/2016/04/INSCOP-raport-martie-2016-INCREDERE-INSTITUTII.pdf (Accessed 11 November 2018)
74 Ilie, L. ‘Romania’s tug of war over rule of law nears the line’, Reuters; World News, 19 October 2018, https://www.reuters.com/article/us-romania-politics-law/romanias-tug-of-war-over-rule-of-law-nears-the-line-idUSKCN1MT18R (Accessed 11 November 2018)
75 Associated Press. ‘Romanian president: Criminals trying to seize justice system’, The Washington Post; Europe, 2018,
https://www.washingtonpost.com/world/europe/romanian-president-criminals-trying-to-seize-justice-system/2018/11/06/beaedad0-e1ca-11e8-ba30-a7ded04d8fac_story.html?utm_term=.c8b99e0041ba (Accessed 11 November 2018)
