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Open Access 2022 | OriginalPaper | Chapter

1. Introduction: The European Paradox of Expecting Corrupt Political Elites to Lead the Fight Against Corruption

Author : Luana Martin-Russu

Published in: Deforming the Reform

Publisher: Springer International Publishing

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Abstract

Martin-Russu starts her analysis from an empirical puzzle: Romania’s abrupt shift from observing European norms and standards, towards increasingly diverging from them after having gained full EU membership. Romania’s pre-accession drive to curb corruption, very much aligned with the EU’s requirements, contrasts with the state’s post-accession backslide and the gradual deterioration of already adopted public integrity reforms.
The introduction sets the basis for discussion by arguing that in contexts corroded by high-level corruption, claims of successful Europeanization, particularly in the area of public integrity, are highly counter-intuitive. The priority attached by the EU to the rule of law and justice reform can hardly eliminate the fundamental incentive for political corruption. A self-serving political elite remains unable to genuinely commit to the implementation of substantial anti-corruption reforms.
Notes
The only stable state is the one in which all men are equal before the law (Aristotle)

1.1 The Limits of Europeanization

On 1 January 2007, Romania became a full member of the European Union. The state that joined the EU was already since 1991 a constitutional republic with a bicameral Parliament elected by popular vote and with a dual executive formed by a directly elected president and an appointed prime minister. In the lead-up to its accession, Romania had to amend and adopt numerous laws in order to bring them into line with the EU’s basic requirements for its member states. The body responsible for overseeing the constitutionality of these laws was the Romanian Constitutional Court, an extra-judiciary body with judges appointed by the president and each of the two parliamentary chambers, tasked with reviewing acts adopted by lawmakers and often arbitrating disputes that failed to be negotiated politically. Romania’s basic law provides guarantees of political pluralism, of checks and balances in the political system, and of a clear separation of powers, with its representative authorities constitutionally required to act in the public interest. However, post-accession, it became clear that in certain areas, laws that had been implemented in order to meet EU standards were being undermined or reversed by a self-serving political elite.
The people that became EU citizens in January 2007 enjoyed long before accession the right to vote for their representatives, with fair, free, competitive and reasonably well organized elections being held every 5 years for president and every 4 years for the Parliament. However, electing representatives does not always mean having their interests represented. Indeed, since then, there has been an increasingly low level of public trust in political representatives, which stems mainly from a lack of appropriate governance. Rather than losing hope though, in the last 15 years citizens started to take matters into their own hands, with civil society organizations taking up the role of policy implementers. For example, independent media was saved by the engagement and dedication of journalists who attracted donations in support of independent outlets; a non-governmental organization (Dăruiește Viață) raised funds for building, without state help, a much needed children’s hospital, which turned out to be the best equipped hospital in the country until now; another non-governmental organization (Code for Romania) offered its services pro bono to the government, deploying in the shortest time an entire digital ecosystem to inform and support citizens affected by the COVID-19 pandemic; and more recently a great number of non-governmental organizations and volunteers mobilized to welcome and assist the more than half a million refugees that crossed the border fleeing the war in Ukraine. The people that became EU citizens in 2007 did exercise their right to free movement, with more than 20% of the population emigrating to live and work in other member states during the last 15 years. They remained, however, politically engaged: they queued for hours to cast their ballot when too small a number of polling stations were established across Europe, and in 2018 they returned spontaneously to Bucharest to stage an unprecedentedly large-scale diaspora protest against the government and its failure to curb high-level corruption.
After 7 years of accession negotiations followed by another 15 years of full EU membership, Romanian representatives still prove to be incapable of meeting voter’s demands for responsible and responsive law-making and of ensuring the rule of law. In its most recent report of 2021, the European Commission raised concerns about the slow pace of the member state’s judicial reform, the ongoing necessity to enhance the legal framework for the fight against high-level corruption and more generally highlighted the need for the stable separation of powers. The independence of Romanian judicial authorities and anti-corruption agencies was questioned over and over again in Commission’s reports, demonstrating that Romania’s political elites themselves are hardly above suspicion when it comes to corruption. Almost every Romanian government formed after January 2007 has faced charges of graft and corruption against one or more of its ministers; in addition, numerous members of parliament and high-ranking dignitaries are serving prison sentences for offences involving misuse of public office, and many more would face prosecution if they did not enjoy freedom from civil arrest under parliamentary immunity. Furthermore, relevant bills in the field of justice reform continue to be passed through Government Emergency Ordinances, allowing the executive to legislate by decree, bypass the regular legislative process and parliamentary consideration, and preclude public discussion on matters of great political salience. To what extent can Romania’s lingering problems in such key policy fields as justice and anti-corruption be regarded as a predictable post-accession syndrome? Could it have been anticipated? How can it be explained? The European Union cultivates democracy and respect for rule of law as its core values and its member states willingly bind themselves to share these values, while candidate states (particularly since the previous three enlargement rounds) have to meet high democratic standards upon their accession. Is EU membership not the guarantee for balance, genuine reform and the subsequent implementation of European norms that it intends to be?
The post-accession developments in Hungary and Poland, among other states, make these questions appear somehow futile and naïve. After the election of 2010, which brought a complete victory for the Fidesz party, Hungary started a radical and widely criticized revision of its constitution. Supported by more than two-thirds of the members of parliament, Fidesz used this supermajority to capture the Constitution and turn it into a mere instrument to maintain control and silence opponents.1 Five years later, Poland set on a similar path towards a so-called liberalization of its constitutional order.2 After 2015, when the Prawo i Sprawedliwość (PiS) party won the parliamentary elections with an outright majority, Poland started to introduce a series of legislative amendments with questionable democratic credentials, which significantly affected the structure of the justice system and the functioning of the Constitutional Tribunal.3 It did not make any significant changes to the basic law, but developed instead a routine of ignoring it4 while at the same time insulating its own actions from any constitutional scrutiny. Employing different legislative tools and practices, Poland reached the same result as Hungary: a centralization of power, a weakening of checks on executive discretion and a departure from the rule of law. Disregard for the rule of law is unfortunately far from exceptional among European Union (EU) members;5 the developments in the two member states have been singled out here, however, because they triggered an unprecedented institutional reaction. Article 7(1) of the Treaty of the European Union (TEU) was activated by the European Commission against Poland in December 20176 and by the European Parliament against Hungary in September 2018,7 invoking a clear “risk of a serious breach” of European values, such as democracy, the rule of law, and the protection of fundamental rights.8 Several resolutions were adopted by the Parliament and several recommendations were issued by the Commission within its Rule of Law Framework,9 all aimed at highlighting the two states’ deviations from the rule of law, initiating a dialogue and proposing remedial measures which, however, met with very disappointing results. Without going deeply into the background of these cases, suffice it here to admit that the long years of action and reaction between the EU and the two member states ultimately show that it would be a mistake to consider membership in itself to be a guarantee of successful implementation of European laws and full alignment with the Union’s values. Even beyond such cases of governance taking obviously illiberal directions, the substantial heterogeneity in the preferences, interests, capabilities and institutional traditions of the states forming the European Union makes it very likely for each and every member to be, at times, in certain policy areas and for certain periods of time, reluctant to bear the costs of compliance.10
Where laws are concerned, while the responsibility for the transposition and implementation of the acquis rests largely with the member states, the European Union does have a system for securing rule transfer. It has at its disposal a number of mechanisms in order to ensure the successful transposition and implementation of its laws. Either through learning, socialization, consultation, expertise, negotiation, capacity building, but most importantly through monitoring and sanctioning, the Union proves largely efficient in bringing member states into compliance.11 A much weightier challenge to be met with a much narrower set of tools is ensuring commitment to European values, democratic standards and constitutional principles, an endeavour which largely falls beyond the scope of the enforceable acquis.12 Abuse of power, corruption and poor administration are said to represent fundamental challenges to the core democratic principles of the European Union, likely not only to disturb the implementation of the acquis communautaire, but also to affect the proper functioning of the single market. Therefore, the EU has attached—and continues to attach—a high priority to states’ good governance practices and their commitment to the rule of law, justice and democracy; it remains limited, however, in its power to see these priorities carried out in the member states.13
It was with the introduction of the Copenhagen criteria in 1993 that the EU tightened its accession requirements to include not only economic conditions for establishing a functioning market economy, but also value-driven political conditions amenable to maintaining institutional stability and a well-balanced constitutional system; respect for rule of law and the protection of national minorities were regarded as highly relevant indicators of democratic stability. In effect, the Copenhagen criteria marked a shift away from taking for granted democracy and the rule of law and towards laying down a broader set of political principles to guide EU accession. The Union requested from its candidates to membership an ex ante proof of their capacity to nurture a stable democracy, institutional and legislative equilibrium and respect for human rights. Introduced in the context of eastern enlargement, this type of conditionality14 required states to prove their democratic credentials before accession negotiations were opened. The EU thus offered the Central and East-European candidates a viable path towards membership only if they were able to prove their democratic maturity and conditional upon the fulfilment of certain acquis-related criteria. By responding positively to their application and by opening the accession negotiations, the EU acknowledged their capacity to establish a stable democratic order and rule of law, as well as their willingness and ability to fully implement the acquis communautaire, i.e. their readiness to become full members. Implicit in the Copenhagen criteria was thus the expectation for states to align with basic democratic principles and the rule of law already during accession. What is more, the European Commission not only extended the scope of its conditionality during the eastern enlargement, but also strengthened its mechanisms. Along with the broadened conditionality, the Commission developed stronger and more targeted mechanisms to ensure compliance at the time when states were bidding for membership. The dividing up of the enlargement process into distinct stages proved to be an important innovation, as it allowed the Commission to attach conditions to every stage, which provided a major momentum for aspiring members to maintain their reform efforts.15 Given the number and the very diverse nature of aspiring countries, the Commission constantly re-adjusted its bargaining strategy during the eastern enlargement process; as a result, reform demands and the intensity of conditionality varied significantly across time and from candidate to candidate. The Union’s approach to eastern enlargement thus combined a rule-governed process with clearly established accession criteria, but preserved a significant degree of discretion in interpreting and applying these rules.16 By means of regular monitoring and benchmarking, the Commission not only assessed candidate states’ reform performance, their democratic stability and their respect for rule of law, it also singled out for each aspiring country individual conditions for access to the Union, the Schengen area or other types of rewards.
However, regardless of how successfully this values-enforcement-mechanism was used in the pre-accession context to ensure candidate-states’ compliance with core EU principles, it had no implications for states once they joined the Union. The higher the hopes associated with the Copenhagen criteria for rule of law observance and good democratic governance, the greater the disappointment with the EU’s inability to impose the same standards once states gained full membership. An answer to this so-called Copenhagen dilemma was the establishment in 2014 of the above-mentioned Rule of Law Framework,17 an early warning instrument applicable to all member states and aimed at triggering and guiding dialogue in the event of a serious threat to the Union’s values. The ongoing situation in Hungary and Poland stands as proof, however, of the fact that the light-touch18 of the mechanism falls short of an effective control of member states’ respect for the rule of law.
In this context, Romania stands out as an EU member whose leaders (like in the case of Hungary and Poland) attempted to weaken the institutional checks and balances and capture the constitution,19 but whose attempts (unlike in the case of Hungary and Poland) were effectively blocked, apparently by virtue of EU’s Cooperation and Verification Mechanism (CVM).20 Arguably, CVM, which was applied only to Romania and Bulgaria, proved one of the Union’s most successful instruments for values-compliance, enhancing the enforceability of the democratic acquis. Romania’s trampling on the rule of law was allegedly halted by the EU’s conditionality being extended, through the CVM, to the post-accession period.
Romania has since been subject to this vertical post-accession conditionality mechanism, which keeps the state under political pressure, a threat of concrete sanctions and a constant monitoring and benchmarking. The CVM will be effectively discontinued only once all the established benchmark criteria have been met: (1) to ensure a more transparent and efficient judicial process; (2) to establish an integrity agency with the responsibility to verify assets, incompatibilities and identify potential conflicts of interest, and to issue mandatory decisions on the basis of which dissuasive sanctions can be taken; (3) to build on progress already made and to continue to conduct professional, non-partisan investigations into allegations of high-level corruption; (4) to take further measures to prevent and fight corruption, in particular at the local government level. Should Romania fail to adequately address these benchmarks, the Commission is empowered to apply safeguarding measures as provided for in the country’s Accession Treaty, which will subject the member state to potential cuts in EU aid or lead to non-recognition of its judicial decisions.21
Given these developments in the EU’s mechanism of conditionality as extended to the post-accession period, Romania is deemed reasonably likely to remain compliant with European laws and values.22 The fact that it is subject to stricter monitoring while still having a weak capacity to bear the costs of infringement procedures or financial sanctions, along with the fact that it is eager to build a reputation as a good member, both raise expectations with regard to its compliance record. After a long period of accession negotiations and more than a decade of monitoring and reporting in the area of justice and anti-corruption, it would only be plausible to assume that Romania is close to completing its judicial reform, thereby setting an example for the successful implementation and enforcement of the EU’s democratic acquis.
Yet, an in-depth analysis of its legal compliance performance after January 2007 throws into question the effectiveness of the accession and post-accession conditionality in bringing about lasting reform. The case of Romania reveals that in the field of public integrity and anti-corruption, the country has not necessarily progressed since its accession, but in fact has been subtly backsliding in terms of transposition and implementation of EU legislation in these key areas. Already in 2012, the Commission, in its assessment of Romania’s developments under the Cooperation and Verification Mechanism during the first 5 years of EU membership,23 raised serious concerns about the member state’s failure to establish an independent judicial system and to respect the rule of law, questioning the state’s reliability and the sustainability and irreversibility of its reform process. The Commission’s 2012 report24 took note of inconsistent jurisprudence, difficulties with enforcement and inefficient judicial practices, but more importantly it noted the prevailing political challenges to judicial decisions, the recent attempts to undermine the Constitutional Court, the growing disregard of the political elite for established law-making procedures, the repeated refusals of the parliament to allow the opening of criminal investigations against parliamentarians who are current or former Ministers, and the growing number of parliamentarians still holding their seats in parliament whilst being convicted of serious offences. In the same vein, the report marking the tenth anniversary of the Cooperation and Verification Mechanism25 questioned the judicial independence and the authority of court decisions in Romania, and more importantly, it pointed out with even greater emphasis the specific attempts to reverse reforms, which have inevitably led Romania further away from meeting its objectives. The Commission’s latest report of 202126 cautions against several amendments to Justice laws that are still in force and that have a serious negative impact on the independence of the judiciary and on the quality and efficiency of the justice system in general. It notes as well the fact that the adopted Codes of Conduct for parliamentarians are insufficient in preventing disregard for judicial independence in the parliamentary process, and raises serious concerns about an established pattern of triggering disciplinary proceedings against judges or public prosecutors that oppose the direction of the judicial reform. At the same time, as the report signals, important challenges remain as to the sustainability and irreversibility of the fight against corruption.
As the following analysis will show, an inquiry into Romania’s post-accession public integrity reform, and its legislative practices in general, provides evidence of the country’s convergence with European rules and requirements, yet not without divergence, as the member state’s progress is inconsistent, unsustainable and thus uncertain. Romania’s evolution under the Cooperation and Verification Mechanism presents a mixed picture of significant improvement and abrupt reversal of reform; the country appears to be responding to external pressure without genuine commitment, thereby undermining the relevance and credibility of reform. Its post-accession instances of regress make the case of Romania particularly interesting for studies on Europeanization and its potential to trigger genuine reform and sustainable change, above all due to the fact that such instances of reversal are much more subtle, hidden behind legislative and procedural cosmetics. Putting all things in balance, it can be established that after January 2007 Romania experienced a backslide of its public integrity reform, executed through well-concealed attempts to subvert the legislation by means of procedural manoeuvres and through a non-linear approach to reform reversal. The state’s development in terms of justice and anti-corruption during the post-accession period was marked by an alternation of progress and regress, understood here as a methodical persistence to offset uncomfortable Europeanizing change. Starting from observed instances of this kind of reform reversal, the following pages will uncover the factors that can account for these post-accession setbacks.
Romania is definitely not an isolated example of de-Europeanization: declining trends can be observed in Bulgaria, which is similarly subject to post-accession conditionality, as well as in other new, Central and East- and Southeast-European member states, all of which reveal mixed reform records at best.27 Recent studies and reports28 document in fact a deterioration over the last decade of the democracy scores of almost all countries that joined the European Union in 2004 and 2007. The Romanian case, as presented here, is relevant in this context not for the fact that it adds yet another example of post-accession backsliding, but rather that it exposes more elusive forms of reversal observable only through a detailed inspection of the reforms as adopted and amended at the domestic level. While it is not specifically a study on de-democratization, this research does also contribute to the current debate on democratic backslide,29 by revealing patterns of defective behaviour where free elections are held and where the appearance of democratic checks and balances is fully maintained.

1.2 The Eastern European Paradox

How surprising is it after all that countries with relatively high levels of corruption fail to successfully implement EU-led democratic reforms? Why would one expect corrupt political leaders to acknowledge the negative impact of corruption and genuinely commit to combating the issue by making real efforts to meet strict EU requirements and high rule of law standards? Studies on Europeanization claim that the European Union can successfully trigger and stabilize anti-corruption reforms in Central, Eastern and South-Eastern Europe using its pre- and post-accession leverage. They rely on both the idea of broader and stronger compliance-inducing mechanisms, with an extended conditionality for Romania and Bulgaria, and on the idea of a path-dependency inherent in the European policy-making process.
Much of the early literature on enlargement-led Europeanization pays close attention to EU-level factors that explain the adoption of wide-ranging reforms being undertaken by states in Central and Eastern-Europe while bidding for membership; domestic change is thought to be generated at the EU level as a top-down process and triggered through the policy of conditionality.30 Relying on this assumption and building their argument on a rational-choice perspective, most approaches to Europeanization East emphasize the existence of an identified level of misalignment between the Union and the candidate states, which evokes adaptational pressure from the EU, which further translates into reform achievements at the domestic level in each respective state. This external adaptational pressure is assumed to be an important factor setting in motion domestic reform processes. Following such a strategy of reinforcement by reward,31 the EU offers candidates the opportunity for membership in exchange for compliance with its conditions. As a response, candidate-states, being utility-maximizers, seek to secure the benefits of EU membership, and consequently bear the costs of adapting and implementing reforms, even when they pose challenges as difficult as implementing anti-corruption reforms in a corrupt context.
What happens, however, after a state’s accession to the Union, when EU membership can no longer be used as a conditional incentive for compliance with European requirements? Following largely the same logic, the scholarship assessing the dynamic of states after they gained full EU membership continues to overemphasize the importance of external incentives in triggering and maintaining reform. Researchers are hopeful with regard to the ongoing monitoring and benchmarking through the Cooperation and Verification Mechanism (CVM) for Romania and Bulgaria, which is thought to be successful in preventing a shift from compliant pre-accession behaviour towards an abrupt post-accession divergence.32 Moreover, it is often assumed that the changes adopted before accession remain in place after it. Existing reforms (as opposed to the reforms not yet adopted by a candidate- or a member-state) are thought to be locked in,33 their dismantlement inevitably incurring additional costs states are unwilling to pay. Such an assumption leads scholars to anticipate a slow-down or even a halt in the adoption of new reforms at the domestic level after a state’s accession to the EU, but generally to exclude the possibility of reform reversal. Research in the field retains a remarkable optimism with regard to the success of already undertaken reforms, as long as the EU rewards or sanctions outweigh domestic adjustment costs.34
This optimism is, however, not always mirrored by reality. By discussing domestic costs-benefits calculations in broad general terms, much of the existing literature remains blind to the fact that dismantling reforms might incur high societal costs, while at the same time producing benefits for the members of the political elite. The costs-benefits calculations of the political elite do not always take account of the benefits or costs at a societal level. Particularly in states affected by high-level corruption, claims of successful Europeanization in the area of justice and public integrity remain highly counter-intuitive. The priority attached by the EU to the rule of law and judicial reform, and its pressure for change exerted through the CVM, can hardly eliminate the fundamental incentive of self-interested lawmakers to exploit the political process in pursuit of personal benefits. A self-serving political elite would obviously be unwilling to genuinely commit to the implementation of substantial anti-corruption reforms, regardless of the fact that this is to the benefit of the wider society and in line with European requirements.
This book seeks to challenge the assumption that changes made pre-accession remain in place, being too difficult or costly to reverse.35 In line with more recent approaches to Europeanization,36 it proposes instead a theoretical model that contends that the course of Europeanizing reform depends on political will and on the interests pursued by legislators at the domestic level. It demonstrates how political elites, on the basis of their personal preferences alone, can easily reduce legal compliance and reverse formally adopted laws. Unsuccessful policies are not necessarily a consequence of limited institutional capacities, unclear or obtuse drafting or inefficient implementation of law. They may just as well result from legislators’ instrumental use of policies and of the democratic framework to extract personal benefits that go beyond holding power or gaining electoral returns. Based on an interests-centred theoretical framework and supported by detailed empirical evidence as to the preferences of political elites as opposed to those of the broader society, this book helps us to understand why a lock-in of Europeanizing reforms is not always successful. Such an analysis becomes even more relevant in the present context, when the EU prioritizes a shift from promoting to preserving Europeanization in Central and Eastern Europe.
This approach puts the effectiveness of conditionality in a new light, drawing attention to the possibility for domestic change to be carried out reluctantly by political actors interested in seizing other opportunities than those derived from convergence with the EU. Change might conveniently be pursued for as long as it serves the interests of the elite, with positive reforms being reversed when they no longer produce such benefits. A state where an already adopted reform is later gradually and subtly reversed, as in the case of Romania, can hardly be regarded as involuntarily non-compliant. Such a departure from European norms or standards can hardly be blamed on the lack of institutional and administrative capacity37 since any such lack of capacity to adapt to European conditions would have prevented Romania from adopting reforms in the first place. It is much more likely that the observed post-accession defection is intentional, which in turn casts a different light on the state’s pre-accession commitments to compliance. Members of the political elite might have pushed for reform during the state’s accession phase, knowing that they can dismantle these reforms after achieving full membership. In this context, it seems reasonable to distinguish between delivering sound and substantial reform and implementing numerous reform steps that are intentionally superficial, designed to gain certain rewards and aimed at being reversed or diluted after the benefits have been reaped. The following fine-grained analysis of two areas of reform, with an in-depth inquiry into the interests pursued at the domestic level during reform processes, yields valuable insights into Romania’s compliance performance and explains the co-existence of substantial reforms in certain areas with subtle de-Europeanization in others.
However, assuming that the interests of political actors alone can determine the course of reform and the success of Europeanization would be unreasonable. Therefore, in studying Romania’s de-Europeanization, the following pages will draw on early Europeanization literature38 and go on to develop a theoretical framework which moves beyond existing research by linking Europeanization studies with elite theories. It demonstrates a causal link between the pursuit of personal interests by the domestic political elite and the more structural result of de-Europeanization, and accommodates the interplay between actors and structures. It stresses the crucial role played by domestic political elites in bringing the social and legal reality in line with EU requirements, and identifies a range of structural factors that trigger a self-interested behaviour of the elite, their abuse of power and their readiness to sacrifice societal well-being for narrow personal benefits. The book is an inquiry into the motivations that drive legislators to make particular decisions on the one hand, and into the structural characteristics and dynamics of the elite that invite a selfish rather than responsible and responsive behaviour on the other. Such an approach provides a more accurate conceptualization of Europeanization, by drawing on factors not usually considered in the literature, primarily that of elite interests, but also factors such as fragmentation, elite permeability, inter-institutional frictions, value-consensus and the linkages between elites and nonelites. The combined effect of these factors is uniquely able to explain Romania’s shift from Europeanization to de-Europeanization in certain areas of reform (i.e. the public integrity and anti-corruption reform) and not in others (i.e. the nature conservation reform). Thereby it directs attention to the evident fact that in states plagued by high level corruption, a genuine anti-corruption reform cannot be carried out by the allegedly corrupt political elite.
Romania’s persistently disappointing corruption scores and record of democratic rule39 provide reasons to believe that the domestic political elite might not be genuinely committed to adopting sound integrity reforms, despite the EU’s pre- and post-accession conditionality. If we acknowledge the fact that corruption on a grand scale was and still remains a daunting challenge in Romania 15 years after the state’s EU accession, it seems pertinent to question the extent to which a problem can be expected to be solved by those who are themselves embroiled in the problem. It is on these grounds that the interests of the political elite in Romania are here assumed likely to run counter to societal expectations, especially in the fields of public integrity and anti-corruption reform. Despite its positive pre-accession trend, Romania has since remained vulnerable to reversals of its reforms, which casts doubt on whether the Romanian political elite was ever committed to the EU-driven justice reform, to tackling the problem of corruption and the lack of public integrity, to showing respect for the rule of law and to governing according to the interests of Romanian society.

1.3 The Structure of the Book

This book undertakes to find an empirically convincing explanation for Romania’s post-accession selective backtracking. It reconsiders the state’s compliance record in two areas of reform through the careful scrutiny of the legislative amendments adopted during the last 15 years, and the various motivations that drove them. It outlines the high emphasis placed by the EU on the incorporation of its rules and standards into domestic legislation, and contrasts this with Romania’s questionable and inconsistent legislative performance. Finally, it shows that the European Union’s policy of conditionality, however assertive or extensive, cannot guarantee compliance with its rules unless domestic political elites are committed to reform.40
The link between the EU’s use of external incentives and the individual interests of domestic decision-makers in pursuing change is here developed into an overall theoretical model, where EU-driven reforms thrive under supportive domestic institutional frameworks with few veto players and a strong political will for domestic change; they are in turn reversed as soon as domestic political elites favour short-term individual gains over European norms and objectives, as well as over the interests of the society at large. The conceptual core of this model is founded on the idea of personal interests pursued by the political elite. Inquiring into the personal interests of the elite follows from the assumption that representatives, when adopting Europeanizing reforms, do not always act in the interests of the represented. The theoretical argument in fact builds on the contradiction between the interests of the domestic political elite and those of society. This is not to claim that the decisions adopted by the elite necessarily contradict or ignore societal interests, or that the decisions serving the common good cannot be motivated by self-interest. The argument singles out those instances when political decisions run counter to both European norms and the preferences of the electorate, thus hindering Europeanization and distorting political representation.
This argument, its theoretical anchoring and its empirical substantiation on the case of Romania, are developed in this book in four consecutive steps. First, after a brief terminological introduction to the concept of de-Europeanization, Chap. 2 offers a critical analysis of the existing scholarship, focusing in particular on the studies covering Eastern Europe and locating them in the wider context of Europeanization research. Two major gaps are identified in the literature: one is the lack of a theoretically grounded model of de-Europeanization substantiated through fine-grained analyses of domestic transposition; the other is the lack of sufficient empirical research on the relevance of domestic political elites for the success and stability of EU-led reforms. The chapter illustrates how this study bridges these gaps, proposing a theoretical framework that explains selective backsliding and links reform reversal (the dependent variable) with the elite’s pursuit of individual interests (the independent variable). This theoretical framework builds on the classical rational-choice model of top-down Europeanization proposed by Börzel and Risse,41 which has been echoed—though not always explicitly—by numerous scholars focusing on Eastern Europe; it reconstructs this model to accommodate an explanation for reform reversal under the impact of the individual preferences of the domestic political elite.
This revised model of Europeanization stresses the crucial role played by domestic political elites in bringing the social and legal reality into line with EU requirements. It identifies a range of structural factors that makes the self-interested behaviour of the elite more likely, abetting their abuse of power and their readiness to sacrifice societal well-being for narrow personal benefits. Three factors in particular, subsumed under the concept of elite fragmentation, are identified as relevant conditions that invite the pursuit of personal interests: first, the circulation of the political elite, with a profound influence on the composition of the ruling stratum and indirectly affecting the conduct of its members; second, the institutional context in which elites are situated, which—if marked by conflicts of interests instead of cross institutional synergies—may affect the group-dynamics causing the elite to disintegrate and engage in self-serving behaviour; and third, the linkages between the elite members with a particular emphasis on their respective levels of solidarity and value consensus influencing the stability and predictability of their choices. This detailed study of the composition and dynamics of political elites allows for a nuanced understanding of elite fragmentation and invites reflection on the intuitive assumption that corrupt elites are united. The uniform behaviour of elites in their corrupt practices (i.e. cross-party efforts to undermine anti-corruption legislation and democratic institutions) is in itself a sign of enhanced elite fragmentation rather than cohesion, as the ties between elite members rely solely on volatile short-term interests. The analysis goes beyond the level of fragmentation within the ruling stratum however, being complemented by an inquiry into the nature of the relationship between representatives and represented, between elite and nonelite, taking into account the extent to which elites and nonelites are congruent in their values and interests, as well as the role played by the nonelite (e.g. civil society) as a control factor that secures the responsiveness of the elites to societal needs and wishes. In a nutshell, the theoretical Chap. 2 invites a careful observation of the relationship among elite members and between elite and nonelite. It postulates that the pursuit of personal interests is more likely to occur in an over-fragmented ruling stratum and is only possible when there are no constraints put in place by civil society.
Chapter 3 starts the empirical analysis by examining the structural factors that influence the composition and conduct of the Romanian political elite. Its high level of fragmentation during the pre- and post-accession years results from a narrow and shallow circulation pattern, from conflicting institutional or organizational interests and from a lack of value consensus among elite members. All these factors culminate in the pursuit of narrow particular interests at the highest levels of decision-making, leading to the failure of democracy even where democratic institutions are in place. This second part of the book shows the political environment in which EU-driven reforms are carried out to be one that is characterized by intra-party and inter-institutional dissension, as well as ideological inconsistencies. The concept of fragmentation offers an interpretative frame for the observation and evaluation of these intra- and inter-organizational dynamics. Romania provides a revealing example of over-fragmentation: a political climate of distrust, uncertainty and unpredictability that favours self-interested behaviour, and in which elected elites can be bound neither to take account of the preferences of their own party, nor to take into account the concerns of their electorate. Intra-party dynamics show a remarkably centralized selection and removal of leaders, and a reduced members’ involvement in party affairs in almost all major political parties. As a consequence, a wide power disparity between the various party strata results in a weak intra-party cohesion and organizational loyalty. Moreover, a detailed analysis of the patterns of interaction between or among political parties, discloses how in the last decades the major Romanian political parties experienced numerous splits and mergers, how several opportunistic coalitions were forged on the eve of, or midway between, parliamentary elections, and how at an individual level, numerous party members abruptly changed their affiliation in order to obtain secure political positions. Placing this analysis of fragmentation on a timeline reveals the rather surprising fact that the Romanian political elite is able to overcome structural factors and find political compromise and scope for cooperation, although it still lacks the will to commit indefinitely to the rules of democratic pluralism. The years preceding the state’s EU accession were marked by a period of calm and apparent consensus, which ended abruptly in 2007. This post-accession disintegration of the Romanian political elite still conditions the behaviour of the elite-members and the stability of EU-driven reforms.
In Chap. 4, the focus shifts away from the analysis of the elite to an analysis of their legislative conduct in the area of public integrity and anti-corruption. Romania’s integrity and anti-corruption reform presents a most likely case for de-Europeanization, in a context with prevalent high-level corruption. That an allegedly corrupt political elite who act out of personal interest would be in favour of blocking justice reforms is self-evident. The focus here is on the details of how this plays out in the transposition of specific European policies. The analysis follows the legislative path of Romania’s integrity law, which clearly demonstrates a pattern of diluting already existing provisions, with repeated subtle attempts to reverse those positive reform steps that have already been undertaken. With de-Europeanization defined in strictly legislative terms (i.e. narrowed down to the transposition of European laws and requirements), any reform reversal is measured, for each article of law, against the level of positive change it has already achieved. The in-depth empirical evidence confirms de-Europeanization, it illustrates how the use of inadequate and hasty procedures and the inconsistent adoption of amendments that are ill-fitted to the scope of the law in question had dire consequences for the quality of legislation, as well as affecting the quality of institutional interactions, the level of public trust, and the engagement of the nonelite. As the analysis shows, the goals of the legislators clearly pointed towards a pursuit of personal interests that extended beyond winning elections. They proposed amendments that frustrated the regulative purpose and generated legislative ambiguity and confusion which was far from accidental. They allowed the use of sloppy legislative techniques, which made any meaningful reform impossible. Yet more importantly, they opted for a self-centred rather than a social-centred approach when justifying and voting on legislative amendments. This case singles out the crucial role played by elite preferences in shaping reforms and reform processes laying bare the subtle patterns of abusive behaviour in legislatures generally considered to be rule-governed and transparent. It also helps to explain the limits of post-accession conditionality, and the challenges to reduce the abuse of power in settings known to be already corrupt, particularly in those fields where civil society is still weak and unable to hold the elites accountable.
A second case study is provided in Chap. 5: an inquiry into Romania’s nature conservation reform. This case provides a valuable example of a policy field in which the same political elite lacks strong personal incentives to reverse change and thus allows Europeanizing reforms to unfold. The evaluation of the legislative performance again shows a questionable use of legislative procedures, but this time coupled with a higher level of responsibility and responsivity to societal concerns. The in-depth analysis of the manner in which EU requirements in this field were transposed and amended shows the degree to which the legislation underwent significant improvements over time. Subsequent revisions of the law not only intended to address people’s need for a clean environment and the community’s need for sustainable development; they also articulated the need of the administrators of protected areas to work on a clear legal basis. More importantly still, this case provides an example of a policy field in which the very same political elite is motivated to cooperate with civil society in developing and implementing effective and sound legislation in accordance with European standards. The expansion of protected areas in preparation for EU membership generated an increased need for an effective management of these areas, which translated into a legislative solution allowing civil society organizations and the scientific community to assume responsibility on an equal footing with the government. The case study shows that the Europeanizing trend of nature conservation legislation, and the positive development of the reform during Romania’s post-accession period, is inextricably linked to the emergence of a strong environmental civil society. This empowerment of civil society contributed to an increase in the level of public engagement in support of environmental causes, and resulted in less scope for the pursuit of personal interests by the political elite in this sector in the long term. In this case, European impulses for change were able to translate into successful reforms.
Both of these cases are highly relevant for assessing Romania’s post-accession compliance record, as the European Commission attaches equally high salience to both areas of reform and is very active in detecting and sanctioning instances of non-compliance.42 Very similar in terms of the degree of external adaptational pressure for domestic change, the two reforms have very different Europeanization outcomes: repeated successful attempts at reversal in one field but not in the other. Through a most-different cases design, this book explains Romania’s selective backtracking by exposing the manner in which domestic political elites instrumentalize both the EU and the domestic democratic framework in pursuit of personal gains. Too heavily focused on institutional factors and on compliance-inducing instruments, Europeanization literature fails to account for the role played by individual decision-makers in upholding domestic reforms. It is blind to the dangers posed by fragmented self-serving political elites, who are able to alter the course of reform by deviating from both the public interest and European requirements. This study reconfigures the idea of domestic interests; shifting the focus away from group, party or societal interests, and towards the private interests of the elite, whose pursuit of which is revealed to lead to unpredictable legislative outcomes. This approach also alerts Europeanization scholars to the possibility of a shift from overt to more discreet forms of abuse, and stresses the importance of identifying (ideally at an early stage) the subtle ways in which political elites reverse legislation and weaken the democratic framework. A careful observation of all the steps undertaken in the process of transposing European norms and of revising legislation can go a long way towards identifying instances of reversal and in using them to reveal systemic infringements43 before it is too late.
While this understanding of Europeanization, modelled as a reversible process, may seem to offer a somewhat pessimistic prospect for reform, this book nonetheless suggests, in its concluding Chap. 6, a cure to these problems, found in the empowerment of civil society to partake, in one manner or another, in the law-making process. Improving the capacities of civil society to participate more effectively in policy formulation and implementation makes democratic consolidation more feasible and allows for genuine Europeanizing reform. Romanian civil society organizations face increasingly difficult access to funding and increasingly burdensome registration and reporting requirements, while the police forces enjoy more and more latitude to disperse public protests. These challenges notwithstanding, the Romanian civil society manages to capitalize on its strength gained in the environmental sector and triggers a broader public engagement that spills over from the domain of environmental protection to the area of anti-corruption and good democratic governance. Along these lines, the present book serves as a cautionary tale and as an invitation for the EU to fully support civil society in its Central-, East- and Southeast-European member states.
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Footnotes
1
Kochenov (2021: 137).
 
2
Bień-Kacała (2021).
 
3
Koncewicz (2018) and Sadurski (2018).
 
4
Kochenov (2021: 137).
 
5
Lachmayer (2017), Ioannidis (2017), and Vachudova (2016).
 
6
European Commission (2017a).
 
7
European Parliament (2018).
 
8
For an excellent assessment of the strengths and weaknesses of Article 7 TEU see Kochenov (2021).
 
9
European Commission (2014a).
 
10
Börzel (2002: 195).
 
11
See Börzel et al. (2010), Hartlapp (2007), and Börzel (2003).
 
12
Kochenov (2017: 430–1).
 
13
For a wide range of perspectives and solutions to this problem see the contributions in Closa and Kochenov (2016).
 
14
What Schimmelfennig and Sedelmeier (2004) term as ‘democratic conditionality’.
 
15
Steunenberg and Dimitrova (2007: 11).
 
16
Papadimitriou and Gateva (2009: 153).
 
17
European Commission (2014a).
 
18
Kochenov and Pech (2015).
 
19
Müller (2015); Perju (2015).
 
20
Questioning their justice-reform portfolios and anticipating that the South-East European candidates would face even higher implementation costs than those faced in Central and Eastern-Europe, which would make them more reluctant to implement deep domestic or administrative reforms, the European Commission introduced back in 2006 a much stricter regime for inducing compliance in Romania and Bulgaria. Both member states are still subject to this post-accession conditionality.
 
21
European Commission (European Commission, 2007a, b: 3).
 
22
Buzogány (2021), Lacatus and Sedelmeier (2020), Vachudova (2016), and Epstein and Jacoby (2014).
 
23
European Commission (2012a).
 
24
European Commission (2012a).
 
25
European Commission (2017b).
 
26
European Commission (2021a).
 
27
Lacatus and Sedelmeier (2020), Anghel (2020), and Börzel and Fagan (2017).
 
28
Rich sources of data are the reports published by the Bertelsmann Foundation, the Economist Intelligence Unit, the Freedom House Nations in Transit, or the V-Dem Democracy Reports.
 
29
Bogaards (2018).
 
30
Sedelmeier (2011), Gateva (2010), Papadimitriou and Gateva (2009), Sedelmeier (2008), Pridham (2007b), and Steunenberg and Dimitrova (2007).
 
31
Schimmelfennig and Sedelmeier (2005).
 
32
Schimmelfennig and Sedelmeier (2020), Lacatus and Sedelmeier (2020), Vachudova (2016), and Spendzharova and Vachudova (2012).
 
33
Sedelmeier (2012).
 
34
Schimmelfennig and Sedelmeier (2020).
 
35
Sedelmeier (2012).
 
36
Innes (2014), Sedelmeier (2014), Noutcheva and Aydin-Düzgit (2012), and Spendzharova and Vachudova (2012).
 
37
Buzogány (2021) and Börzel et al. (2010).
 
38
Börzel and Risse (2000).
 
39
A V-Dem country analysis with the control of corruption and the Liberal Democracy Index as indicators (https://​www.​v-dem.​net/​en/​analysis/​CountryGraph/​) as well as the World Bank’s Worldwide Governance Indicators for Romania (https://​info.​worldbank.​org/​governance/​wgi/​Home/​Reports) show a low and slightly fluctuating governance score for Romania since 2007.
 
40
Innes (2014), Sedelmeier (2014), and Spendzharova and Vachudova (2012).
 
41
Börzel and Risse (2000).
 
42
This initial justification of the case selection will be more extensively developed in Chap. 2.
 
43
Scheppele (2016).
 
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Metadata
Title
Introduction: The European Paradox of Expecting Corrupt Political Elites to Lead the Fight Against Corruption
Author
Luana Martin-Russu
Copyright Year
2022
DOI
https://doi.org/10.1007/978-3-031-11081-8_1