Challenge to Rule of Law in Europe

2004 saw 10 new member countries admitted to the European Union. Just 2 countries were judged not sufficiently ready – Bulgaria and Romania – on grounds of their levels of corruption and judicial incapacity. They were both eventually admitted to the EU on 1^st January 2007 – but, uniquely, subjected to an annual inspection through a new procedure called the Cooperation and Verification mechanism (CVM).

Coincidentally, these are the 2 countries in which I have lived since 2007 – indeed I had no sooner returned to Romania from an 8 year stint in Central Asia than I took up a position as Team Leader in Sofia in a project for training regional and local officials to ensure the country’s compliance with EU legislation.   

Schengen and the Euro give Bulgaria and Romania additional reasons for feeling the smack of second-class citizenship – particularly because after more than a decade they have not managed to satisfy the taskmasters in Brussels on judicial reform. The requirement for annual reports on judicial aspects and corruption continued until 2019 when it was replaced by the Rule of Law Mechanism (RLM) which necessitates an annual report to be submitted to the Commission by each and every member country.

Bulgaria and Romania had by then become the least of the EU’s concerns - Hungary and Poland had quickly instituted significant departures from the rule of law – packing courts with political appointees, severely limiting media freedom and making political use of European Funds. And some older member countries such as France and Spain were considered to have questionable aspects to their judicial and constitutional systems 

Much of this had passed me by – what caught my attention at the weekend was the release of a critical report commissioned by an Irish MEP Clare Daley on the 2021 assessment by the European Commission - which engages in a dialogue with member countries about their submissions.

Her report – called Binding the Guardians – is just over 100 pages long and was written by a well-known political economist Albena Azmanova who basically analyses how well the European Commission is fulfilling the task of holding member countries to account for their observation of the Rule of Law. It starts, brilliantly, by suggesting four tests for the Commission’s work - 

We suggest that, in order to effectively comply with the rule of law while conducting its annual rule of law surveys, the Commission needs to be guided by (at least) four norms:

·       clarity of communication,

·       thoroughness in addressing rule of law violations (that is, in the full range and depth of detail),

·       equal treatment of the subjects of power, and

·       impartiality in the use of power (in the sense of not having a narrow partisan-political agenda).

Obscurity is a fertile ground for arbitrariness, omissions tacitly condone what is omitted, favoritism disempowers some, and partisan-political considerations harm the common good.

Azmanova then applies these tests to the Commission commentary and finds the following problems

·       A dangerous conflation of “rule of Law” with aspects of procedural democracy

·       Vague, overly-diplomatic language

·       Restricted focus - The Commission report delimits its range to four areas: the justice system, the anti-corruption framework, media freedom, and ‘other institutional checks and balances’.

·       Failing to include the operations of the private sector 

At this stage, I’m conscious that I recently took a vow of brevity and that I am about to share excerpts from the report which will double the size of this post…..so having tantalised you with the summary, I’ll continue shortly

Hypocritical Europe?

Today's previous post tried simply to describe the latest developments here in Romania. This second post today reflects conversations with local people and is a comment.
European input to Romania’s ongoing political crisis is a delicate matter. It can all too easily become counter-productive. There are many educated Romanians - and they are highly intelligent, proud and touchy – and can quickly spot apparent inconsistencies if not hypocrisies in comments from Brussels and Berlin. For example -

• Italy and Greece have been hotbeds of corruption, blatant disregard of rule of law and conflicts of interest for decades - and yet Europe took action only recently when its own financial stability was threatened. 
• Romania’s (suspended) President has been overstepping his role for several years, acting unconstitutionally on several occasions and yet Europe said nothing. This week’s judgement of the Constitutional Court apparently agreed that Basescu has been usurping the Prime Minister's role - although most newspaper reports focus only on their agreement that due procedures were observed. 

People with no axe to grind in the present stand-off are asking why Romania is being picked on in this way. A lot of people believe that Europe is so hostile to Romania that it is looking for a reason to kick them out.

Europe therefore needs to tread carefully – and spell out clearly the basis for its concerns. Officially, Romania obtained membership of the European Union in 2007 only because it was judged to have satisfied certain basic conditions – ie of being a functioning democracy and market economy. Any sign that the rule of law is not being respected is a more worrying signal in a new state than an old member state – since such things take time to bed down. In that sense all member states are not equal (Can one take seriously a Constitutional Court which has taken three different positions in 3 years about the rules for a referendum to impeach the President???). Why else is Romania subject to these 6 monthly tests???
A year ago I drew attention to an important distinction a Czech discussant made  -

between democracy understood as institutions and democracy understood as culture. It’s been much easier to create a democratic regime, a democratic system as a set of institutions and procedures and mechanism, than to create democracy as a kind of culture – that is, an environment in which people are actually democrats

My old neighbour will be voting for the impeachment – most old villagers follow the socialist party line. But he does not appreciate constitutional niceties – for example, removing the next in line for the Presidency a few days before the removal of the President may not be unconstitutional in the strict sense - but it is in fact a profound undermining of the essence of constitutionality. If the beef is with Basescu's behaviour, then why not accept the next in line - also a PDL member? Removing him before he could take up the interim position demonstrates the attack is a wider political one - concerned to pack all institutions with yea-sayers. That's a coup d'etat! I'm surprised more commentators have not focussed on that.

Independent analysts such as Tom Gallagher and Alina Mungiu-Pippidi have spelled out in many papers and books over the years just how deviant the political class is here (Tom's latest in his 2009 book Romania and the European Union - how the weak vanquished the strong; Alina's in her chapter in the 2009 book Democracy’s plight in the European Neighbourhood).
The issue is how Europe explains to the Romanian voters that they are still under assessment - without driving them into the arms of the ultra nationalists???
So far, I've had no response from my brief letter to David Martin MEP. And the European Parliament seems to be splitting on political lines - with the Head of the Socialists and also of the Liberals siding with Ponta
The painting is one of Belgian painter's - James Ensor

The Deserts of Transition?

For all the talk of European Commission transparency, it’s none too easy to get useful information about the projects on which its various Structural Funds and Operational Programmes spend so many thousands of millions of euros.

Nor, incidentally, have I seen anyone look at the role which such funding has played in the socio-economic development of this Region. A lot of money is spent on consultants evaluating the projects but their availability seems to be very restricted. And those who write these evaluations have no interest in biting the hand that feeds them – so no fundamental critique will emerge from that quarter.

I might expect journalists and academics to tackle such basic questions – except that they too have their reasons for not wanting to upset a gravy-train.

I have lived in central Europe for much of the past 20 years – and don’t need to worry about offending the powerful interests in the EC. So let me clearly say what I think about the contribution of Structural Funds  

It has helped into place the systemic corruption here – not least by adding to the incentives to pull the wrong sort of people into the political systems.

I doubt that a credible case can be made for its economic contribution.

Bulgaria and Romania have been able to spend less than 10% of the monies allocated to them.

That’s a pretty dismal picture – and a poor reflection on European journalism that no journalist seems to have posed, let alone explored, the question of what it has all really achieved for these countries. The opportunity was there in the past 2 years while the whole future of the Structural Funds was being reviewed – I rather belatedly woke up to this(rather inward if not incestuous) discussion at the end of January     

All this is by way of a preface to praise for one report which I stumbled across last week - Narratives for Europe from the European Cultural Foundation.Don’t be put off by the “deconstructionist” verbosity at the beginning – this was an interesting venture using EC funding to link up ordinary people in a lot of peripheral areas of Europe whether at weddings, playing music or in the final stages of their life in remote villages.

We are not looking to collect either official discourses or isolated individual stories. We are trying to identify common ground and shared representations, yes, but it is also about identifying diverging perspectives, conflicting desires, grey zones: the questions and even doubts expressed by people in Europe of all generations and backgrounds, particularly those engaged in arts and culture

Coincidentally, The Economist also published this picture of life in North East Bulgaria - whose poverty I saw for myself this time last year.

But the media I was reading hadn’t told me about the fascinating and sophisticated protests in Zagreb (Croatia) in the first half of the year

In February, March, and April 2011 up to ten thousand people assembled every other evening in Zagreb, and up to a couple thousand assembled in other cities. Besides a rhetorical shift (a strong anti-capitalist discourse unheard of either in independent Croatia or elsewhere in the Balkans), the crucial point was the rejection of leaders, which gave citizens an opportunity to decide on the direction and the form of their protests. The “Indian revolution,” previously limited to public squares, soon turned into long marches through Zagreb. It was a clear example of how “invited spaces of citizenship,” designed as such by state structures and police for “kettled” expression of discontent, were superseded by “invented spaces of citizenship,” in which citizens themselves opened new ways and venues for their subversive actions, and questioned legality in the name of the legitimacy of their demands. This was not a classic, static protest anymore and, unlike the famous Belgrade walks in 1996–97, the Zagreb ones were neither aimed only at the government as such, nor only at the ruling party and its boss(es). They acquired a strong anti-systemic critique, exemplified by the fact that protesters were regularly “visiting” the nodal political, social, and economic points of contemporary Croatia (political parties, banks, government offices, unions, privatization fund, television and media outlets, etc.). The flags of the ruling conservative Croatian Democratic Union, the Social Democratic Party (seen as not opposing the neo-liberal reforms), and even the European Union (seen as complicit in the elite’s wrongdoings) were burned. The protesters even “visited” the residences of the ruling party politicians, which signalled a widespread belief that their newly acquired wealth was nothing more than legalized robbery.And this is precisely the novelty of these protests. It is not yet another “colour revolution” of the kind the Western media and academia are usually so enthusiastic about (but who are otherwise not interested in following how the “waves of democratization” often do little more than replace one autocrat with another, more cooperative one). The U.S.-sponsored colour revolutions never put into question the political or economic system as such, although they did respond to a genuine demand in these societies to get rid of the authoritarian and corrupt elites that had mostly formed in the 1990s. The Croatian example shows that for the first time protests are not driven by anti-government rhetoric per se, but instead are based on true anti-regime sentiment. Not only the state but the whole apparatus on which the current oligarchy is based is put into question by (albeit chaotically) self-organized citizens. No colour is needed to mark this kind of revolution which obviously cannot hope for any external help or international media coverage. It did the only thing the dispossessed can do: marched through their cities. The emergence and nature of these Croatian protests invites us also to rethink the categories used to explain the social, political, and economic situation in the Balkans and elsewhere in post-socialist Eastern Europe.

In the general bemoaning of the small number of people who seem to be aware of (let alone sympathetic to) their European neighbours (now or in the past) let me salute and help shine a light on the writings of Clive James whose Cultural Amnesia is a unique and amazing set of vignettes of European.