Skip to main content
Top
Published in:

Open Access 2022 | OriginalPaper | Chapter

4. Romania’s Justice and Anti-Corruption Reform: A Stubborn Divergence from European Norms in Pursuit of Personal Gains

Author : Luana Martin-Russu

Published in: Deforming the Reform

Publisher: Springer International Publishing

Activate our intelligent search to find suitable subject content or patents.

search-config
download
DOWNLOAD
print
PRINT
insite
SEARCH
loading …

Abstract

In this chapter, Martin-Russu shifts towards an in-depth observation of the elite’s legislative conduct in the area of anti-corruption. The analysis focuses on the concrete developments of Romania’s public integrity law (i.e. the initially adopted act, its different provisions and its development over more than a decade), which clearly show a pattern of diluting existing legislation, with repeated subtle attempts to reverse positive reform steps already undertaken.
The chapter illustrates how the use of inadequate and hasty procedures and the adoption of amendments inconsistent and ill-fitted to the scope of the law can hardly be justified as being in the interests of society as a whole, being driven solely by the narrow self-serving purposes of the elite. This self-serving conduct of the political elite has dire consequences for the quality of legislation, for the quality of institutional interactions, and more importantly, for the level of public trust and the political engagement of the nonelite.
Notes
He who does not prevent a crime when he can, encourages it.
(Lucius Annaeus Seneca)
The previous chapter highlighted fragmentation as a conditioning factor that exacerbates the tendency of the political elite to pursue narrow individual interests instead of party, group or societal concerns. The level of fragmentation is thus closely tied to both legislative practices and legislative outcomes, and serves as a baseline for assessing the dynamic of Europeanization. In highly fragmented law-making environments such as Romania’s, political decision-makers, having no strong ideological or institutional ties, are more tempted to instrumentalize democratic mechanisms in pursuit of private benefits, thereby destabilizing the state’s already adopted reforms. Grounded on this hypothesis and using Romania’s justice and anti-corruption reform as a case study, in this chapter we will critically evaluate the drivers of legislative change in this particular policy field. The analysis follows (1) the legislative developments (in both procedural and substantial terms), (2) the consequences implied for the overall level of Europeanization, (3) the nature of the interests pursued by the representatives when proposing and adopting amendments to the relevant laws, and (4) the role of civil society in communicating public interests and holding representatives to account when their legislative preferences diverge from those of the public.
Since January 2007, the European Commission has been using a number of benchmarks to measure Romania’s progress in the area of justice and anti-corruption, with public integrity being a key dimension of these reforms. One of the four benchmarks set in the Cooperation and Verification Mechanism (CVM) concerns the legal framework for integrity, i.e. the establishment of a National Integrity Agency (ANI) with “responsibilities for verifying [public officials’] assets, incompatibilities and potential conflicts of interest, and for issuing mandatory decisions on the basis of which dissuasive sanctions can be taken”.1 The Commission’s approach underlines the fact that the fight against corruption in Romania is tightly linked to the state’s ability to ensure public integrity through formal requirements. Therefore, the CVM monitoring reports regularly evaluate the robustness of the legislation on the basis of which the ANI operates, as well as the performance and efficiency of the agency in detecting and sanctioning Romanian public officials’ conflicts of interest, or unjustified increases in assets. Given the progress achieved in establishing the ANI’s legal framework in the first months after having joined the EU,2 Romania was expected to become increasingly compliant with the requirements set by this benchmark; the agency was counted upon to strengthen its capabilities and become more and more efficient under the EU’s continued CVM monitoring, enhancing public integrity and thus diminishing the scope for corruption. However, judging by the legislative changes affecting the ANI’s legal mandate since 2008, Romania shows anything but steady and predictable progress. The ANI’s legal status was repeatedly weakened, which rendered the proper implementation of the laws basically impossible and prevented the agency from performing effectively. This chapter will explore this post-accession legislative setback, indicating on the one hand the considerable extent to which lawmakers acted in their own personal interests when re-designing policies, and on the other hand the limited power of civil society to intervene. As we will see, political representatives use and abuse the democratic framework in pursuit of narrow personal interests, deforming the reforms designed to serve the public good. Understanding this reality is essential to understanding de-Europeanization and to explaining why the widespread assumption that EU accession and conditionality bring about successful domestic change does not hold true for Romania’s anti-corruption reform.

4.1 The Development of Integrity Laws and the Corresponding Level of de-Europeanization

Over the last 15 years, the European Commission has been closely monitoring Romania’s progress in the area of public integrity as part of its post-accession conditionality. Judging by the benchmark established by the Commission in 2006, Romania’s development does show some progress, yet this progress is far from consistent or irreversible. An in-depth analysis of the legislative framework for integrity reveals that numerous amendments passed in the years following Romania’s accession were intended to significantly dilute the existing legislation by repealing or limiting those provisions that were inconvenient for public officials. This section will cite the most illustrative and relevant examples, showing the manner in which the Romanian political elite subverted the progress made through the adoption of the law establishing the ANI in 2007.
Before considering examples of how it was diluted, it makes sense to identify and discuss the procedural steps that led to the adoption and modification of Romania’s legislative framework for public integrity in the first place (see Fig. 4.13). If analysed in technical procedural terms, the integrity legislation has gone through a very long and complicated development, with numerous refinements being made through both amendments to existing laws and through newly adopted laws over a period of 15 years.
After being drafted in July 2006 and adopted in May 2007, the law establishing the ANI was quickly amended and supplemented by two Government Emergency Ordinances: OUG 49 and OUG 138 of 2007. Amending a law through a Government Emergency Ordinance (OUG)—a very common practice in Romania even when no emergency requires it—allows for the legislative changes to take immediate but temporary effect; the changes that become effective with the adoption of an OUG are only subsequently submitted for debate in Parliament, to be rejected or adopted as separate laws. Accordingly, in 2008, one year after its initial adoption, the ANI Law was supplemented by two additional laws approving the two OUGs already in force: Law 94 and Law 105 of 2008.
Later, in April 2010, a decision issued by the Romanian Constitutional Court, Decision 415, declared unconstitutional several provisions of the initial ANI Law (144/2007) and requested that the parliament re-evaluate and amend them accordingly. Within one month, a draft law was introduced to the parliament, adopted by both chambers and submitted to the president for promulgation. In June 2010, however, the President of Romania refused promulgation requesting the parliament to re-examine the legislation and calling into question the compatibility of certain provisions with the very purpose of the law. The draft’s second passing through parliament was concluded in July 2010, when promulgation was delayed again due to a request filed by the president for a preventive constitutionality check of the draft proposal. The Decision 1018 of the Constitutional Court set the draft on its course through parliament a third time. Eventually, all concerns and the proposed changes were dealt with and included in a new law (176/2010) promulgated in September 2010. The refinement of this draft in accordance with the recommendations of the Constitutional Court and the presidential request took in total five months, during which the agency was practically unable to act. Moreover, the newly adopted law amended, but did not consolidate or repeal preceding legislation; consequently, in 2010 the functioning of the ANI came to be regulated not by one, but by four different laws.
The constitutionality of the legal framework for guaranteeing integrity was challenged again in 2014, when the Constitutional Court urged the Parliament to amend Art. 25 (2) of Law 176/2010. The article, establishing the sanctioning regime for elected officials found guilty of incompatibility or conflict of interest, was declared imprecise and unpredictable. On these grounds the Constitutional Court proposed, in its Decision 418 of 2014, a reinterpretation of the text. As a consequence, not one, but two legislative proposals were presented in Parliament. They both addressed exactly the same situation, proposed similar modifications to Article 25 (2), both were introduced to the Parliament around the same period (in June and October 2014), both at the initiative of MPs, and in both cases a decision by the Senate was pending until February 2021 when the proposals were finally rejected by the higher chamber.
As Fig. 4.24 shows, the two draft proposals followed almost the same legislative path. Both were first submitted to the Senate, even though such pieces of legislation must be previously submitted to the Chamber of Deputies, since the Senate has a decision-making authority on issues of this kind. On 25 March 2015, both draft laws reached the lower parliamentary chamber, where—without any consideration of the implications of the proposed measures, without any debate and without even being put on the voting agenda—they were tacitly adopted eight months later and sent back to the higher chamber in their initial form. The two proposals had been pending before the Senate for more than five years before being rejected in February 2021. It is also worth mentioning that no less than ten opinions were issued by various parliamentary committees on each of the two draft laws. At least three different advisory committees published negative recommendations concerning the appropriateness of the two proposed laws, while the government, through the Ministry of Justice—when consulted—firmly opposed these amendments, voicing its concerns about their constitutionality.
A further draft-law presented in Parliament in 2017 added to the legislative confusion on the subject of sanctioning elected officials embroiled in conflicts of interest: a third proposal concerning the amendment of the same Art. 25 of Law 176/2010 was submitted to Parliament for deliberation while the other two proposals were still pending before the Senate. This proposal differed in the subject of legislation from the other two: it introduced an exception for the imposition of sanctions under Art. 25. It also differed significantly in the pace with which it was dealt with in Parliament. Unlike the other two proposals, which had a lengthy and tiresome procedural journey that occupied lawmakers for more than five years, this more recent proposal was rushed through both parliamentary chambers in less than a month (between 21 November and 18 December 2017). However, the speedy adoption of this law was delayed for six months at the promulgation stage, when the draft-law went through two constitutionality checks and a presidential review. As this proposed revision of Article 25 was likely to suspend the application of sanctions in hundreds of cases dealt with by the ANI, the president filed a request in March 2018 for its re-examination in Parliament, questioning the reasonableness of the law in relation to the social interest it serves and to Romania’s commitments under the CVM. The President interpreted the draft proposal as “an act of clemency aimed only to cut short the sentences of several Members of Parliament found in conflict of interest”,5 an opinion not shared however by the Parliament, who rejected the re-examination request and proceeded to the final adoption of the draft that became Law 125/2018 in June.
At about the same time, in December 2017, yet another proposal aimed at revising Art. 25 of Law 176/2010 was presented to Parliament. It discussed the introduction, under Art. 25 (5), of a prescription period applicable to claims of incompatibility or conflict of interest. The proposal’s passage through Parliament was no smoother than in the other cases: the government firmly opposed the proposal in its official opinion; the lower parliamentary chamber rejected the proposal, being unable to gather the minimum of favourable votes required for its acceptance; while the Constitutional Court declared the proposal unconstitutional emphasizing the inadequate legislative technique used. A revised version was reintroduced and adopted in the lower chamber in December 2018, followed by an adoption in the Senate and the promulgation of Law 54/2019 in March 2019. It supplemented the law (125/2018) adopted just few months before to amend Art. 25 of Law 176/2010, while the other two amendment proposals on the same article were still pending in Parliament. Currently, the functioning of the ANI is regulated by no less than six different laws, two of which only clarify the details of Art. 25 of one of them.
As the above analysis shows, the procedural path reformers took in establishing the legislative framework for integrity in Romania reveals practices that undermine the very purpose of the legislation. On procedural grounds alone, the numerous changes to the legislation establishing the ANI not only repeatedly disrupted the functioning of the agency, but also established an undesirable legislative parallelism by maintaining in force several legal provisions concerning the same object of legislation. This generated uncertainty about how the legislation was to be applied and made it possible for the courts to apply these provisions however they saw fit.
As regards the substance of the ANI legislation, the changes adopted over time followed a pattern of diluting already existing provisions. This calls into question the intentions of the legislators who not only failed to outlaw corrupt behaviour, but instead opened up new opportunities for abuse. The two 2014 proposals to amend Article 25 (2) of Law 176/2010 offer a clear illustration of this tendency. Although neither of these two proposals has been passed into law, they still provide evidence of the reluctance of the Romanian political elite to enact stringent integrity legislation.
Under Article 25 of Law 176/2010, an elected representative with a proven incompatibility or conflict of interest will be debarred from occupying the same office for a period of three years after termination of the mandate.6 In its Decision 418 of 2014, the Romanian Constitutional Court urged the Parliament to clarify this provision, suggesting it be rephrased to make it plain that elected officials were debarred from occupying any office for a period of three years. The Constitutional Court found that only such a phrasing would be in accord with the spirit of a law aimed at enhancing the integrity of public officials, and at effectively sanctioning their failure or refusal to comply.7 It was in response to this that Romanian lawmakers introduced to Parliament the two legislative proposals (Pl-x nr. 309/2015 and Pl-x nr. 310/2015)8 in a clear attempt to override the decision of the Constitutional Court. By virtue of Article 25 (2), as amended by proposal 309/2015, elected representatives found to be involved in a proven incompatibility or conflict of interest are to be debarred from occupying the specific office held at the moment when the transgression was established. The other proposal, 310/2015, resolves the issue in a slightly different manner: it provides for mayors, deputy mayors and local counsellors to be debarred from occupying any of these three positions, for regional counsellors to be debarred from occupying a similar office, and for members of the Senate or the Chamber of Deputies not to stand for election as parliamentarians for a period of three years. Any of these amendments of Article 25 (2), had they been adopted in the form proposed, would have removed altogether the restriction to occupy an elected office for all representatives found incompatible or in conflict of interest. At best, they would have increased the number of local or regional politicians aiming for a seat in national Parliament and conversely, the number of parliamentarians who entered the competition for local or regional elections. Undeniably, the two draft proposals clarified the effects and application of Article 25 (2) of Law 176/2010, yet not in the sense advised by the Constitutional Court, and certainly not in compliance with the EU’s requirements under the Cooperation and Verification Mechanism.
This attempt at de-Europeanization is not a singular incident. Various de-Europeanizing provisions proposed after Romania’s accession to the EU were not eventually rejected; they were adopted and produced significant effects, not least of which was an increasing tolerance to violations of public integrity. As the following analysis shows, most of the amendments passed into law after January 2007 to regulate the functioning of the National Integrity Agency significantly reduced the power of the agency to issue mandatory decisions, the time frame within which the ANI could conduct verifications of assets was diminished, and sanctions, already far from being dissuasive, were lowered even further. When analysed in terms of the standards set by the European Commission, the repeated attempts to amend the ANI legal framework clearly reveals a post-accession setback in terms of controlling corruption.
The initial legislative framework setting up the National Integrity Agency was drafted by the Ministry of Justice in July 2006 and adopted, albeit in a modified form, in May 2007, becoming Law 144/2007. This law provided in its Art. 4 (3)9 for integrity inspectors to notify the court on the basis of available evidence whenever they filed a notable discrepancy (that cannot be reasonably justified) between the actual and the declared wealth of a Romanian public official. According to the same article, the court would in this case be requested to order the confiscation of these unaccounted-for assets. In April 2010, the Romanian Constitutional Court declared the article unconstitutional, quite reasonably arguing that the autonomous National Integrity Agency exercised quasi-judicial powers and its integrity inspectors carried out certain activities which were jurisdictional in nature. Consequently, following this ruling, a new law amending Law 144/2007 was to be passed that would substantially limit ANI’s ability to control and seek the confiscation of unjustified assets and reduce its role to the analysis of assets and wealth statements and the issuing and publishing of reports.10
More interesting is the fact that the new law, 176/2010, also included a series of unnecessary amendments regarding issues unrelated to the abovementioned Constitutional Court decision, measures which significantly reduced the effectiveness of the ANI’s legal framework. To take just one example, the new law established a rather short prescription period for the completion of the ANI’s verifications, laying down that the agency’s investigations be completed within three years after the end of a public official’s mandate. By comparison, in the government’s initial 2006 proposal, the period in which the ANI was allowed to investigate public officials’ wealth was five years after the termination of their mandate. This provision, as proposed by the government, was completely repealed in 2007, then reintroduced later by Law 176/2010 with the period of prescription reduced to only one year. Eventually, the prescription period was extended again to three years, an amendment adopted11 at the specific request of the President of Romania. Notwithstanding this later extension of the prescription period to three years, a significant number of cases eligible under the old law—containing no provision in this respect—had to be closed as a result of the amendment introduced by Law 176/2010. As the European Commission justly remarked, the amendment of Article 11 “has created a de facto amnesty in certain cases for unjustified wealth and other integrity violations.”12
The adoption of Law 176/2010 not only diminished the investigative powers of the Agency, but also significantly reduced the sanctions applied for public officials who failed to respect the obligations imposed on them by the integrity legislation. Such a development is not justified in a context of widespread high-level corruption, and even less justified in a context in which most sanctions were already under the previous law too low for effective deterrence.
The submission of knowingly false wealth statements by Romanian public officials was initially regarded in Law 144/2007 as a criminal offence to be punished in accordance with criminal law.13 Through the amendment introduced by the Parliament in 2010, the submission of knowingly false wealth statements turned from being considered a criminal offence to being considered no offence at all: the new provision allowed the dignitaries to revise their wealth statements at any time before the agency takes action against them. As a matter of course, any modifications made to wealth statements even after their submission would have been recognized as lawful.14 In effect, such an amendment would have rendered void the submission of wealth statements and undermined its effectiveness as an instrument for improving transparency, and would have severely interfered with the activity of the agency altogether. This provision, however, did not take effect due to the requested re-evaluation filed by the President of Romania.
While the submission of knowingly false wealth statements was eventually reintroduced as a violation sanctioned in accordance with the criminal code, the overall sanctioning regime under the reformed integrity framework has been weakened considerably, with reduced fines against officials who fail to make public their wealth and interests, or who submit their statements at a later time. Under Law 144/2007, the failure to submit wealth and interest statements would attract sanctions between 100 and 500 Lei (between approx. 20 and 100 Euro); these sanction limits, already far from dissuasive, were lowered in 2010 by the Parliament to a minimum of 50 Lei (approx.10 Euro) and a maximum of 10,000 Lei (approx. 2020 Euro) and subsequently reduced to between 50 and 2000 Lei (approx. 10 to 404 Euro). Even though the maximum sanctions were eventually increased to a 400 Euro fine, it is far more relevant that minimum sanctions were lowered. In fact, it is the minimum sanction that counts, as practice shows that it is the minimum sanctions that are usually applied in such cases.
Moreover, by virtue of the more recently adopted Law 125/2018 an exception has been introduced, rendering void all the sanctions imposed against Members of Parliament found in conflict of interest during their mandates in the period between 2007 and 2013. The justification for introducing this exception was that the legal framework regulating the Statute of Deputies and Senators did not provide until 2013 for sanctions applicable for Members of Parliament in cases of administrative conflicts of interest. However, this justification falls short of explaining why the Parliament, while regulating public integrity and the sanctioning regime applied to its own members, failed to harmonize the Statute of Deputies and Senators with Law 144/2007, through which sanctions were introduced for all dignitaries (including Members of Parliament) found in conflict of interest.
It is worth noting that the failure to apply disciplinary sanctions by a public institution, should a case of incompatibility arise, is currently subject to a fine even lower than that initially provided under Law 144/2007 (between approx. 20 and 100 Euro) and much lower than the fine suggested by the government in its 2010 legislative proposal (between approx. 202 and 2020 Euro). After Law 144/2007 was declared unconstitutional in April 2010, the draft proposed by the government included a fine between 1000 and 10,000 Lei (between approx. 202 and 2020 Euro), which was first completely eliminated, and then subsequently reintroduced with fines ranging from 50 to 2000 Lei (from approx. 10 to 404 Euro). The level of sanctioning in this particular case is a highly relevant indicator for the extent to which a certain abusive practice is regarded as customary or less severe in nature. Integrity-related sanctions in Romania, far from dissuasive under the current legislation, indicate a high degree of tolerance with regard to such offences. Providing for such low fines against the violation of integrity laws sends out a very feeble message of normative disapproval of this type of abusive behaviour, damaging the credibility of the entire legislative framework and its ambition to improve public integrity while curbing corruption.
Also of particular interest in the present context is the clause proposing the re-establishment of the so-called Wealth Investigation Commissions. Such Wealth Investigation Commissions, created at the level of appeal courts, previously served the purpose of investigating cases of unjustified wealth. In 2007, with the establishment of the National Integrity Agency, this responsibility was subsequently transferred to the agency, as stipulated by Law 144/2007. After Law 144/2007 was declared unconstitutional in 2010, the lower chamber of the Parliament decided to re-establish the Commissions, regardless of the fact that this was neither a request advanced by the Constitutional Court nor a recommendation included in the government’s initial draft proposal for Law 176/2010. Contrary to this decision of the lower parliamentary chamber, the higher chamber rejected the amendment and eliminated the article reinstituting the Commissions. Shortly afterwards, however, following an explicit request of the President of Romania, the Wealth Investigation Commissions were reintroduced in Law 176/2010, acting today as an extra layer of jurisdiction between the ANI and the actual courts.15 The CVM Monitoring Reports for Romania pointed out in 2011 that these Wealth Investigation Commissions serve as an unnecessary intermediary body between the ANI and the trial courts, since they rule on cases transmitted by the ANI on the basis of the same evidential standards as the courts themselves.16 Still, the provision remained in force, and the Wealth Investigation Commissions remained active at the level of the appeal courts, uselessly delaying the judicial decision-making process by duplicating the activities of the trial courts.
Assessed against the CVM criteria, all the above examples demonstrate a clear post-accession legislative setback. While these articles cover only a small area of the integrity legislative framework, they form part of the hard core of provisions which are of fundamental importance to the state’s Europeanization and post-accession compliance in the field of integrity and anti-corruption reform. Note that “Benchmark two” of the Commission’s Mechanism for Cooperation and Verification recommends that Romania should establish 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”17 (emphasis added). As the above accounts have shown, instead of bringing Romania more in line with these criteria, repeated attempts were made after January 2007 to severely interfere with the activity of the agency, diminishing its responsibilities and weakening its tools for control. More often than not, the measures taken disregarded the recommendations expressed by the European Commission in its regular reports. Since January 2007, the European Commission has published no less than 20 reports taking stock of the progress made, addressing the remaining shortcomings and underlining the steps to be taken by Romania in refining and improving its integrity legislation. Without exception, all of these reports raised concerns with regard to the responsibility and accountability of Romania’s political elite, and its capacity to ensure a transparent, predictable and irreversible legislative process. Regardless, in what concerns Romania’s legal framework for public integrity, legislative changes were adopted that prevented the ANI from proceeding against members of the political elite (Art. 8, Art. 11 and Art. 17 of Law 176/2010), delayed judicial decision-making (Art. 35 of Law 176/2010) and diminished or suspended altogether the sanctions against officials who fail to comply with the provisions of the law (Art. 25, Art. 28 and Art. 29 of Law 176/2010, as well as Law 125/2018). Introducing amendments to these key articles necessarily led to changes in numerous other provisions in force. The examples detailed above are, however, enough to prove the instability and reversibility of Romania’s anti-corruption legislation. What seem like simple changes in the wording of a small number of provisions in a small number of laws actually goes to the heart of this area of reform; the amendments described above are crucial for Romania’s framework for public integrity, and overall for the state’s approach to combatting corruption. It is no coincidence that these very articles of law are the most extensively debated, repeatedly amended and curtailed.18
Casting an overall glance at Romania’s public integrity legislation, we find a long sequence of attempts to suppress or dilute key provisions. Some of these attempts at weakening the legislative framework were successful, making it through the law-making process; others were either stalled, tempered or rejected by the intervention of one or another decision-making body. A long-term analysis shows however that it is only a matter of time until such failed attempts at reform reversal make their way back into the Parliament and eventually into the legislation.
In sum, and weighing up all the key legislative developments that produced detrimental effects for the state’s ability to control corruption, it can be concluded that Romania reversed the positive steps taken towards Europeanization in the field of public integrity. In Fig. 4.319 reform reversal is measured for each of the articles of law against their previously achieved level of Europeanization. In the government’s initial proposal of 2006, these provisions were mostly in line with EU requirements, while the subsequent modifications of the law (through the adoption of Law 144/2007, Law 176/2010 and Law 125 of 2018) marked a “negative” development. Articles were either deprived of their initial legal significance, or eliminated altogether, which severely affected the agency’s ability to achieve its goals and rendered Romania’s public integrity legislation largely ineffective. Instances of de-Europeanization can be observed not only by comparing the final (promulgated and binding) versions of the laws (as in Fig. 4.3), but also by studying the different draft versions as amended and adopted by the two parliamentary chambers in the process of creating and revising the legal texts. Law 176/2010 alone went through at least seven formally adopted versions, with notable differences in the degree and direction of change with every draft that was voted upon. Tracing de-Europeanization in such detail, however revealing, falls beyond the scope of this book.
On the whole—considering both substantial and procedural aspects—Romania’s legal framework for public integrity qualifies as a case of doubtful legislative performance, with its lack of compliance to, and deviation from, the standards set forth for the member state by the EU through its post-accession conditionality. The various provisions debated by the two parliamentary chambers, their apparent Europeanization followed by its reversal (sometimes with total disregard for the Commission’s recommendations), cast serious doubt on the willingness of Romania’s political elite to carry out sound reforms in the area of public integrity and overall in the field of justice and anti-corruption. The post-accession developments described here not only represent a corruption of law in its ideal essence, but are also highly illustrative of the way in which members of the political elite abuse public power in their pursuit of personal interests.

4.2 The Elite’s Pursuit of Personal Interests

The numerous changes brought to the integrity legislation to diminish the power of the ANI were initiated by various political decision-makers: the Senate had almost reached unanimity in adopting the clause allowing public officials to correct their wealth statements at any time after their submission20; likewise, the lower chamber of Parliament proposed and voted in favour of reducing the prescription period and the sanctions available under ANI laws21; the President of Romania delayed the promulgation of Law 176/2010, returning it to Parliament with the specific request to re-establish the abovementioned Wealth Investigation Commissions, which are a futile additional level of jurisdiction between the agency and the courts; while at the same time, the government amended the legislation through several Government Emergency Ordinances in an attempt to avoid the long cycle of law-adoption, while in fact it only increased the burden on the legislative process. This approach to law-making leads to the conclusion that the members of the Romanian political elite, irrespective of the forum of decision-making in which they are active, lack a commitment to genuine reform. They not only fail to observe the due procedures, but also transcend the limits of their legislative power by behaving opportunistically; they often introduce measures that disregard both European requests and societal needs. In this section, we will pause to examine the reasons behind the elite’s failure to foster a solid integrity legislation. The purpose here is to identify the interests that the members of the political elite pursued in supporting one legislative amendment or another by analysing in detail the mechanism of law-making, both the procedures employed as well as the debates and the voting patterns surrounding the adoption of Romania’s legislative framework for integrity.
After the state’s accession to the EU, the early enthusiasm of the Romanian political elite to establish a solid legal framework for integrity developed into a lack of interest in getting meaningful reform passed. In 2007, 95% of Romanians considered corruption in their country to be a major problem,22 a percentage which has remained high until today (93% in 2009 and 2014, 80% in 2017 and 83% in 2020)23; in 2009, no less than 72% of the population regarded court sentences in the context of corruption cases to be too light,24 while just as many agreed that high-level corruption cases are not pursued sufficiently (with percentages ranging from 73% in 2014 to 77% in 2017, and 71% in 2020).25 In 2019 a consultative referendum as to whether to prohibit amnesty and pardons for corruption offences passed by a wide margin (more than 80% of the votes), a reflection of society’s low tolerance for corrupt behaviour. In 2020, across all EU member states in Romania was observed the highest percentage (64%) of people declaring themselves to be personally affected by corruption in their daily life.26 In response to these constant concerns, Romanian political representatives have been displaying a general reluctance to undertake sound and effective anti-corruption reforms since 2007.
The adoption of the two emergency ordinances amending Law 144/200727 can serve as a good example in this respect. The way in which the government applied modifications to the existing ANI Law so soon after its promulgation is illustrative of the constant practice of the members of the cabinet to legislate by means of Government Emergency Ordinances, even though there is often no emergency that requires it. As discussed above, the government of Romania enacts laws in this manner too often, which avoids the long and burdensome legislative proceedings in Parliament, but at the same time significantly destabilizes the law-making process. Indeed, an undesirable legislative ambiguity resulted from the adoption of the two Government Emergency Ordinances passed in 2007 that were aimed at amending the recently adopted law (144/2007). These government ordinances required the confirmation of Parliament, which granted its approval by adopting new laws (94/2008 and 105/2008), and thus allowed several legislative acts in force to have the same object of legislation. This practice provides a clear example of the misuse of democratic institutions for proceedings that should be extraordinary, and reveals a lack of domestic political will to legislate in a clear and straightforward manner that allows enough time for debates and public consultation.
It was not only in the case of these Government Emergency Ordinances that a fast-track procedure was used to adopt and amend the integrity legislation. Almost all integrity laws mentioned above were adopted without careful consideration via a parliamentary expeditious procedure. The initiator of a bill may request a fast-track procedure when advancing the draft proposal to Parliament, which imposes much tighter deadlines for the submission of written amendments by the members of Parliament. Moreover, at the stage of general debate in plenum, each parliamentary group is, by virtue of this procedure, entitled to only one intervention, with the length of each representative’s speech severely limited.
As we saw in the previous section, the adoption of ANI Law and its subsequent modifications was a long and cumbersome process, and yet almost all the amendments to this law were adopted under an expeditious procedure, at the specific request of those who initiated the legislative amendments: in the case of Law 176/2010 at the request of the government, and in the case of Law 125/2018 at the request of a single MP. As a consequence, modifying laws through expeditious procedures often led to situations in which the members of one or the other parliamentary chamber did not have sufficient time for debate or to submit amendments. During plenary sessions dedicated to ANI Law 176/2010, concerns were raised regarding the lack of accuracy and relevance of a legislative act passed under such severe time pressure.28 Nevertheless, despite such concerns, the plenary sessions were held as scheduled, and as a result decisions were taken in a hasty and ill-considered manner. Indeed, the debates took place and the votes were cast irrespective of whether all the members of the parliamentary chamber had even had sufficient time to read the draft proposal and submit amendments.
To demonstrate this point, it is sufficient to mention that the government’s proposal of a bill amending Law 144/2007 in accordance with the requirements of the Constitutional Court had been submitted to the lower chamber of Parliament even before the decision of the Constitutional Court was published in the Official Journal. Nevertheless, the legislative proposal prepared by the Ministry of Justice reached the Chamber of Deputies on 27 April 2010, while the deadline for submitting amendments to this draft by members of Parliament was no later than the following morning, on 28 April 2010. In a similar fashion, a newly amended draft of the same law was discussed by the Committee for Legal Matters, Discipline, and Immunities in the Chamber of Deputies on 21 June 2010 and spontaneously added to the agenda of the plenum on 22 June 2010. As a result, the members of the Chamber of Deputies voted on the proposals to alter the law without being able to refer to the report, which included amendments approved by the Committee for Legal Matters, Discipline, and Immunities. The same hasty procedure was followed in 2017 to amend Article 25 of Law 176/2010; votes have been cast without a serious study of the amendments proposed and without any plenary debate.29
The conduct of the Romanian political elite demonstrates quite clearly its lack of commitment to passing efficient and unobjectionable anti-corruption legislation. While it may be quite obvious why an allegedly corrupt political elite would adopt measures softening the anti-corruption legal framework, their interest in passing the bills in a surprisingly hasty manner is slightly less obvious. The content analysis of parliamentary debates, however, provides further insights into the reasons behind the extended use of the expeditious procedure in the case of these integrity laws.
A constant subject of concern in the plenary sessions in Parliament was the ongoing EU Cooperation and Verification Mechanism and the European Commission’s negative reports on Romania’s progress in terms of curbing corruption. Therefore, in response to the Commission’s recommendations pertaining to the organization and functioning of the National Integrity Agency, the Romanian political representatives much too often and much too hastily refined the agency’s legal framework with the clearly expressed aim of eventually bringing the Mechanism of Cooperation and Verification to an end. Obviously, most of the members of the Romanian political elite place much higher value on promptly ending the Commission’s supervision than on implementing a thoroughly reviewed and sound legislation. Such an approach to reform can be understood as an attempt on the behalf of the elite to pretend to be meeting European targets for the sake of their voters, while in fact going in the opposite direction. Indeed, the constant high level of trust in European institutions among Romanian citizens supports the claim that the political elite’s attempt to alleviate monitoring pressures is aimed more likely at maximizing their electoral returns than at genuinely meeting EU standards. According to Eurobarometer data,30 the level of trust in the European Union among Romanian citizens remained consistently high if compared to the EU average. In 2007, 67% of Romanians claimed to trust the EU in comparison to a 45% European average; in 2011, the balance was 62% compared to a 41% on average in EU 27; in 2014, 58% of Romanians affirmed trusting the Union, while the average in Europe was very low, at 31%. More recent data of 2021 show that the majority of Romanians (56%) trust the European Union, with an EU average at 49%, while at the same time, by comparison, only 31% trust the Romanian Government and 29% trust the national Parliament. In light of these numbers, it does not seem at all unreasonable to postulate that the widespread use of the expeditious procedure and the careless amending of the already quite fragile legislative framework for integrity was aimed to end the European monitoring as soon as possible and thereby to silence the criticism of those who trust the EU political bodies more than the national ones. The manner in which elites pursue only the political benefits of legislation has dire consequences for the policy effects; the integrity reform conducted with no real intention of following through was doomed to remain, as these examples show, formal rather than substantive at best.
The goals of the allegedly corrupt political elite, however, extend beyond winning elections; the frustration of the legislative purpose and the ambiguity generated with all the amendments to the integrity laws are far from accidental. Not only did most of the Romanian representatives allow the use of a sloppy legislative technique, which significantly affected the quality of legislation and thus made any meaningful reform impossible, but also—as the following pages will show—they opted for a self-centred rather than a social-centred approach to law-making.
According to an analysis conducted by Bertelsmann Stiftung,31 between February 2013 and January 2015, an increasing number of top politicians from all parties—ministers, former ministers, members of Parliament or powerful local politicians—were prosecuted and convicted for corruption. “This was done mostly in spite of—rather than because of—the actions of the centre-left government, which most of the time has tried to subtly undermine this trend by replacing the effective heads of investigative agencies or weakening their institutions.”32 According to a more recent study, the beginning of 2017 marked a break from these more subtle ways of hindering the fight against corruption, when “the ruling center-left coalition dropped any pretence of having any other priority than pushing back against the rule of law and anti-corruption institutions”.33 Legislation has been overtly used in order to weaken the instruments to control corruption and even in order to decriminalize the abuse of public office.34 If taking into account Romania’s low control of corruption and low democracy scores,35 the numerous allegations of grand corruption and the significant number of cases sent to court,36 then the strong reluctance to foster integrity and transparency in public decision-making is hardly surprising. Thus, the interests in blocking anti-corruption reforms are quite self-evident, while the personal character of these interests is even more so. In fact, the Romanian political elite aspires to amend the legislation in order to legalize acts of corruption if they are undertaken by high-ranking public officials. One of the most extreme examples of this took place on 10 December 2013, when “the Chamber of Deputies adopted two amendments to the Criminal Code (…) through which all appointed or elected officials are no longer criminally liable for corruption”.37 More recently, in January 2017 a Government Emergency Ordinance was adopted to decriminalize corruption offences in which the damage caused was less than 45,000 Euro.38
The changes brought to the legal framework for integrity followed the same pattern: they were enacted primarily for the benefit of those who initiated them. The proposal to introduce a shorter prescription period, thus limiting the period in which the National Integrity Agency is allowed to take action against a former dignitary, undeniably benefits those public officials who face or may face charges under the integrity laws. Similarly, the clause allowing for the correction of wealth statements at any time after their submission would have allowed public officials to overlook certain information while publishing their wealth statements, thus rendering void the entire activity of the agency. Such an amendment would certainly serve the interests of those who are committed to an at best opaque kind of political transparency. In the same way, the diminished sanctions against public officials failing to submit their wealth statements inevitably put less pressure on them to comply with the requirements of the law.
In simpler terms, if only taking into account the high level of grand corruption and the lack of integrity among members of the elite in Romania, it seems quite self-evident who would benefit from a softening of integrity legislation. According to the most recent activity report published by the ANI, as of December 2020, 46 national representatives and 945 local representatives were found guilty of incompatibility, 57 national representatives and 369 local representatives were found guilty of an administrative conflict of interest and 21 members of Parliament and 14 local representatives received prison sentences based on ANI reports. In the same period, between September 2010 when Law 176/2010 was adopted and December 2020, 7722 sanctions were applied by the agency, the majority of which (more than 92%) were for failure to submit wealth declarations in due term.39
An assessment of the arguments advanced in Parliament to justify the amendments proposed to the integrity legislation provides even further proof of the instrumental use of the democratic framework by the Romanian political elite. While arguing in favour of a certain legislative provision during parliamentary debates, various members of the Romanian Parliament have made clear reference to personal interests. For instance, in May 2010, a senator of the Social Democratic Party (PSD) declared during a plenary session of the Senate to cast a vote in favour for the adoption of Law 176/2010 despite the effects that the implementation of the bill would have on the ANI’s effectiveness; the stated reason for this choice was to allow the ANI to immediately resume its activity in order to facilitate the agency’s investigations in a case regarding the Senator so it would finally reach court and eventually be settled.40 The following month, in June 2010 a liberal-democratic (PDL) member of the Chamber of Deputies proposed an amendment to delete certain data from wealth statements, justifying this amendment with the argument that the publication of some of the data led to personal inconveniences.41 Similarly, a member of the Conservative Party (PC), while arguing in favour of granting public officials the possibility to correct their wealth statements at any time before the agency takes action against them, referred to a situation in which he himself forgot to remove from his wealth statement a property he had sold long before.42 Another argument brought forth by a member of the Liberal Democratic Party (PDL) in favour of diminishing sanctions against public officials who fail to publish their wealth and interests statements was that higher sanctions would discourage local counsellors in his region from further assuming responsibility as they would be unable to pay such fine, and this would certainly cause difficulties for him, as president of the party’s regional chapter, in finding suitable candidates for the local council.43
While these are by no means singular cases of Members of Parliament who are driven by opportunism in their approach to legislative reform, such anecdotal evidence alone cannot prove the validity of this book’s main claim. More relevant in this respect is the legislators’ voting pattern, which shows a high degree of tolerance for such rhetoric. Even though most Romanian political representatives would agree, if asked, that personal inconvenience is not a valid reason to support or reject derogations or legislative amendments, nevertheless, when some members of the parliament hindered reform in pursuit of personal interests the majority of members in the same parliament tacitly consented. Indeed, despite the debates surrounding some of the de-Europeanizing measures proposed, during the voting of the bills in plenum, most of the members of the one or the other chamber of parliament were to a large extent inclined to agree with the majority. Therefore, the laws establishing Romania’s framework for public integrity (Law 144/2007 and Law 176/2010) were in each of their successive forms adopted with a majority of more than 90% of the votes. An exception in this regard are Law 125/2018, adopted with 65% of the cast votes in favour in the lower chamber and with 67% in the Senate, and Law 54/2019 adopted with 92% of the cast votes in favour in the lower chamber and 76% in the Senate.
Moreover, it is also important to point out here that a positive vote was cast in 2007 by both chambers of Parliament on a bill (144/2007) known already at that time to be in breach of the Romanian Constitution.44 The unconstitutionality of this law was addressed in plenum, but it did not prevent the Parliament from adopting it with 251 votes in favour and 5 against in the Chamber of Deputies, and 109 votes in favour, and no votes against in the Senate. A few years later, the bill was brought for review before the Constitutional Court, and as a consequence, in April 2010, the law was declared unconstitutional. It was returned to the Parliament for revision, which caused five months of legislative standstill that prevented the agency from performing its responsibilities. Can this legislative behaviour be regarded in any circumstance as a pursuit of the common good? Can the adoption of a law known to fall short of meeting constitutional standards be reasonably justified? Were political decision-makers in their actions representing any interests but their own? As we will see in the next section, democracy-promoting civil society groups and organizations who voiced their disapproval of this legislative behaviour, were however silenced by further legislative amendments aimed at curtailing their freedom to criticize political parties on the one hand and distracting them through overly burdensome reporting requirements on the other.

4.3 The Weak Impact of Civil Society

The above analysis appears to suggest that any opportunistic political elite in a democratic system could change the course of legislative reform in an effort to extract personal profit. By this logic, the more corrupt and self-interested the ruling political elite, the greater the impediments they would pose to genuine anti-corruption reform. The relationship between the elite’s self-interest and the course of reform is, however, more complex than such a simple causation. In particular, the strength of civil society plays a very important role, correlating highly with the elite’s pursuit of personal interests: societal constraints are most likely to prevent an instrumental use of the democratic framework by political decision-makers. The existence of a strong civil society with adequate control capacities is thus an essential condition for the implementation of a sound and stable reform. Civil society plays a key role as a mediator between representatives and the represented; it informs the latter about the decisions taken by the former, and the former about the interests of the latter, but more importantly, it mobilizes the represented to protect their interests by promoting active participation, political engagement and the building of political pressure. Conversely, in the absence of a strong civil society that would act as an effective watchdog, a powerful self-interested political elite can indeed impede reform and put personal profits before the public good.
Civil society is not absent in Romania. As of 2020, 114,548 civil society organizations (CSOs) were registered in Romania and included in the National Non-Governmental Organization Register, marking an increase of 6774 since December 2018.45 The estimation holds however that only half of these organizations registered are in fact active. Moreover, at least since January 2007, civil society in Romania seems to be rather powerless in terms of its control function and quite vulnerable in its relation to the political elite. Its sustainability has remained an issue in the post-accession period (see Fig. 4.446), primarily due to the weak financial setup of CSOs in Romania, which has declined after the state’s accession to the EU. In 2018 and 2019, the financial viability of CSOs reached its lowest scores (4.5) since 2002.47
In a comprehensive study on the role played by civil society as an anti-corruption actor in Central and Eastern Europe, Alina Mungiu-Pippidi48 stresses the fact that in the pre-accession period, EU conditionality combined with the existence of an intense and effective grassroots mobilization contributed to a positive trend of reform. Indeed, as Alina Mungiu-Pippidi rightfully points out, EU conditionality, which is heavily dependent on domestic agents of change, can only be effective when coupled with an active engagement in curbing corruption at the domestic level.49 After Romania gained full EU membership, not only did the political elite gradually disengage from promoting anti-corruption reforms, reversing the positive measures adopted before accession, but at the same time, civil society became less and less able to act against the reversal of reform. One of the main reasons behind this decline in the strength of civil society in this field was, as mentioned above, its endangered financial situation after January 2007. Following their accession to the EU, most of the new member states faced a sharp drop in the share of funding for anti-corruption programmes as their main sponsors, American foundations and USAID, withdrew their support.50 Moreover, pre-accession European Commission funding has been subsequently replaced by Structural Funds managed by national ministries who prove to be, at least in Romania, quite reluctant to distribute funds to watchdog organizations monitoring their activity.51 The Government Emergency Ordinance (OUG 117/2010) adopted on 30 December 2010 caught most civil society organizations off guard when it provided for them to pay taxes on a monthly basis instead of every semester. Without consistent revenue streams, many CSOs found themselves unable to meet such obligations, and faced bankruptcy, not least because state delays in financial disbursements from EU Structural Funds only exacerbated the situation.52 Indeed, the recipients of EU Structural Funds faced a continuously changing regulatory environment, creating confusion and administrative difficulties. In addition, in 2011, the Romanian government unilaterally changed the terms and conditions of structural funding, lowering advance funding and extending the terms of payments, severely affecting the financial setup of most civil society organizations.53 During 2014–2020, the EU Structural Funds remained the main source of foreign funding for CSOs, but the repeated delays and overly-complex and bureaucratic procedures rendered such funding accessible only for the larger and more experienced organizations.54
In general, after Romania’s accession to the EU, there was a steady deterioration marking the relationship between civil society and the political elite. The communication and cooperation between civil society organizations and political decision-makers started to decline; the mechanisms created for consultation gradually disappeared. The College of Consultation with Civil Society, established by the Prime Minister’s Chancellery in 2005, was increasingly inoperative and was dissolved in 2010.55 In July 2013, through a Government Decision, all structures dedicated to civil society at the level of the General Secretariat of the Prime Minister’s Chancellery were eliminated. Beyond the Prime Minister’s Chancellery, the few formal structures of consultation with civil society that remained were ineffective, an illustrative case being the Social and Economic Council, which, surprisingly enough, did not have CSO representatives in its structures.56 An even more blatant example is the establishment of the Ministry of Public Consultation and Civic Dialogue through the Government Emergency Ordinance OUG 1/2017, only to be dissolved one year later. The Government Emergency Ordinance OUG 1/2018, adopted in January 2018, put an end to the existence of the ministry despite its merits in consulting with civil society organizations and increasing the transparency of decision-making processes in public authorities.57
Particularly when legislating in areas such as justice and anti-corruption, members of the Romanian Parliament regularly ignore their obligation to submit draft laws to public consultation, the overall cooperation with civil society organizations remaining limited at best. It is not at all unusual for Members of Parliament to refuse civil society representatives their right to participate in deliberations and in the law-making process in key areas of judicial and anti-corruption reform.58 Consequently, the relationship between civil society and the political elite is antagonistic: the former constitutes the main source of pressure on representatives for more transparency and integrity, while the latter accuses CSOs of acting as foreign agents to the detriment of Romanian society (regardless of the fact that no proof has yet been produced in support of such claims59).
The Romanian political elite is clearly inclined to perceive civil society active in democracy promotion as a threat rather than a source of support and expertise. This claim can be substantiated through further analysis of the integrity legislation discussed above. In May 2007, an amendment to Law 144/2007 was adopted which placed board members of the trade unions under the obligation to declare their wealth60; this measure was passed by an overwhelming majority in the Senate, regardless of the fact that the law specifically addressed dignitaries and public officials, and not board members of the trade unions, who did not fall into this category. This measure, of course, did not go unnoticed, and it was consequently eliminated through a Government Emergency Ordinance later in 2007 (OUG 49/2007). Yet the provision was reintroduced by the Chamber of Deputies in 2010 by Law 176/2010, and has remained in force ever since.61 A similar proposal tabled in 2010 intended to oblige the members of the press62 to disclose their financial assets, as a measure to control “media abuses”. Even though this amendment received little consideration in the Senate, it equally reveals the attitude of disfavour on behalf of the Romanian political representatives towards independent media and civil society.
Burdened by negative attitudes from political decision-makers and dependent upon local or central government for funding, civil society in Romania is largely inclined to perceive its watchdog role as particularly at risk in terms of future financial security. As a consequence, many non-governmental organizations in the field of justice and anti-corruption focus mostly on legal assistance and raising awareness, putting less time and effort into targeting corruption directly, suggesting legislative changes, or promoting the institutionalization of anti-corruption laws. Some counterexamples do exist, though. The Alliance for Clean Romania has been actively engaged in promoting transparency and integrity in public spending and in monitoring Romania’s progress towards good governance since 2004. The Academic Society of Romania (SAR) published a “White Paper of Good Governance”63 in January 2012, calling for clear measures for good governance, transparency and public integrity to be adopted by all political parties (although while formally voicing their support, none of the political parties actually complied with its recommendations).64 The Resource Center for Public Participation (CeRe) and the Raţiu Center for Democracy monitored candidates’ electoral promises via its online platform Cineceapromis,65 a platform that was launched on 22 March 2012, but is no longer available. In April 2012, civil society organizations managed to block a proposal by Parliament to change the electoral law just a few months before the elections and without seeking broad agreement with regard to the changes proposed.66 In October 2013, after two years of effort, Coalition 52 succeeded in convincing the Parliament to amend Law 52/2003 in a manner that would allow for the consultation process on decisions made at the central and local levels to be more transparent, with better standards of consultation, more reasonable time frames, and clearer procedures67 (although the extent to which these amendments are actually being enforced remains questionable). In 2014, the National Anti-Corruption Strategy was developed with the support of civil society organizations who participated in regular meetings with the Government. The Center for Legal Resources, involved in evaluating the strategy, provided practical recommendations for improvement, while the Open Data Coalition (led by the Open Society Foundation) co-operated with the Government to increase the amount of public data available in user-friendly formats.68 In 2015, the local Helsinki Committee, APADOR-CH, voiced concerns and formulated alternative policy options in order to diminish the number of emergency ordinances passed in circumstances lacking actual urgency69 (although bills continue to be passed by the Government through emergency ordinances, thus bypassing the regular legislative process). In 2017 seventeen non-governmental organizations drew public attention to the fact that the bill70 proposed to modify the Government Ordinance OG 26/2000 regulating the functioning of civil society organizations imposes a de facto censorship on civil society by limiting its ability to campaign against actions of political parties or candidates to public office.71 This pressure did lead to the rejection of the draft law in the Chamber of Deputies, but only 4 years later, in October 2021. Valuable additions to the civil society landscape were the founding of the Funky Citizens72 initiative in 2012 and the launching of The Democracy Fund73 in 2017, grassroots initiatives that support through voluntary donations civic engagement, promoting projects in the fields of good governance, political education and participation, constitutional checks and balances, and independent journalism. Also worth mentioning are organizations such as Diaspora Civică Berlin,74 founded by Romanians abroad that help to engage the diaspora in long-distance civic and political activism. By establishing their own independent funding networks such organizations are better positioned to support initiatives and projects that address critically and objectively issues around power and abuse of public office.
Such examples are scarce, however. More often than not, civil society organizations deal with corruption in rather general terms, refraining from directly targeting specific public officials or institutions.75 The situation has worsened since 2017 when civil society organizations became even more hesitant to publicly condemn the abuses committed by members of the elite as an effect of a legislative proposal brought before Parliament to modify the law on associations and foundations. This proposal,76 if adopted, would have redefined public utility status for CSOs allowing this status to be revoked if the organizations opposed a political party or a candidate running for public office, and would have imposed disproportionate reporting requirements on the non-profit sector under the threat of dissolution. The draft proposal was tacitly adopted by the Senate in November 2017, without any debate and no plenary vote, and it was pending in the Chamber of Deputies for almost four years until it was finally rejected in October 2021 (with 197 votes in favour of the rejection, 1 vote against and 99 abstentions).
A similarly demobilizing effect came from a law transposing the EU Anti-Money Laundering Directive, Law 129/2019, proposed for debate in Parliament in June 2018 and adopted in July 2019. This law deals with non-profit and for-profit organizations in the same manner, requiring them to declare their beneficial ownership to the Ministry of Justice or risk penalties that range from fines to dissolution. The sanctioning regime applied under this law is stricter in comparison to the above-discussed integrity laws: the fines imposed on non-governmental organizations that fail to report on their beneficial owners range from 200 to 2500 Lei (approx. between 40 and 505 Euro) increasing in case of further non-compliance to a range between 500 and 5000 Lei (approx. between 101 and 1010 Euro), whereas the fines imposed on public dignitaries failing to publish their wealth statements or on public institutions failing to apply administrative sanctions under the integrity legislation range between 50 and 2000 Lei (approx. between 10 and 404 Euro). Moreover, the law fails to clarify the definition of beneficial owners as it applies to civil society organizations, but requires the latter to declare their beneficial ownership through notarised statements. Under these provisions, CSOs face excessive bureaucracy and high formalization costs only to file annual reports that reiterate the information available already in their Statutes.77
In light of these recent legislative amendments openly and intentionally weakening the capacity and the watchdog role of civil society, it comes as no surprise that CSOs felt pressured to shift their activities even more towards awareness-raising and providing information. Indeed, at the moment, surprisingly high amounts of resources are being spent on awareness-raising campaigns, despite the fact that public awareness in Romania is probably at its highest level. In this respect, the media has been increasingly active in criticizing the manner in which Romanian politicians understand to make use of their positions in order to pursue individual goals. Yet, despite the high level of awareness among the general population, resources are still being spent on communication campaigns. At the same time, puzzlingly enough, despite this high level of public awareness with respect to corrupt practices, there is no corresponding engagement on the part of Romanian society. Support from businesses in promoting good governance is crucial, but at the same time fairly scarce. USAID, acting on the presumption that businesses would be the first to benefit from curbing corruption, made systematic efforts to involve them in the fight against corruption, yet with practically no success.78
An equally important factor is the limited amount of engagement at a societal level, with persistent political discontent and disengagement among the general population. A study assessing the dynamics of voter turnout since 1989 conducted by the Institute for Public Policy Romania identified a constant decline in turnout rates, concluding that only 50% of voters in the 1990 elections were still interested in participating in the electoral process, just 20 years after the democratic breakthrough.79 In the 2016 national parliamentary elections, voter turnout was exceptionally low at 39%, 2 percentage points lower than in 2012,80 while the 2020 parliamentary elections established a new record of low turnout with only 31.8%.81 The main factor behind this decline is the rising distrust and disenchantment of the electorate with its political leaders, which results in a lack of political engagement through voting. In recent years, Romanians have felt more inclined to voice their concerns and hold politicians accountable for their actions through protests. Tens of thousands of citizens frequently took to the streets in Bucharest and other major cities in 2017, 2018 and less intensively in 2019, triggered by officials’ abuse of office, by the legislative changes that weakened the rule of law and by the unbearable chronic exposure to corruption. They demanded with every protest the strengthening of the justice system, which is still yet to happen. The 10th August 2018 protests stood out for having an unprecedented participation of Romanians living abroad, but were also marked by an unprecedented level of violence, which was ended by the brutal intervention of the police. The staging of demonstrations to denounce politicians’ abuse of power continued, though on a smaller scale, until 2020 when the imposition of a state of emergency restricted the freedom of assembly to a bare minimum and constrained even more the capacity of civil society to perform its watch-dog role. The Presidential Decree 195 of 16 March 2020 adopted in response to the COVID-19 pandemic, in its Art. 56, provides for the response time to be doubled in cases where petitions and requests are filed under the Free Access to Public Information Act.
In sum, the few CSOs advocating against corruption in public office are underfunded and understaffed, forced to adapt to a continuously changing regulatory framework and in danger of being dissolved if they do not comply with cost-intensive and strict reporting requirements. Some initiatives have achieved their goals, blocking controversial draft legislation, yet in many cases with only partial or unsustainable success.82 Often the bills blocked are only delayed, being reintroduced by the Parliament at a later point in time. Without any significant and permanent pressure coming from the weakened civil society or from the electorate the members of the Romanian political elite continue to pursue their narrow private interests. They deliberately block anti-corruption reforms, having little or no concern for the overall public or the common good. This form of legal corruption practised in the post-accession period has led to legislative instability and the reversal of the positive reform steps undertaken before accession. What this in-depth study of Romania’s integrity legislation demonstrates is that unsuccessful reforms are not necessarily a consequence of limited institutional capacities or a lack of legislative vision or know-how, but rather of legislators’ unwillingness to formulate an effective anti-corruption policy and to enact genuine integrity measures. The use of inadequate and hasty procedures and the adoption of amendments inconsistent and ill-fitted to the scope of the law in question can hardly be justified as being in the interests of society at large, not to mention the votes cast in favour of provisions motivated purely by short-term individual benefits. This self-serving conduct of the political elite has dire consequences for the quality of legislation, for the quality of institutional interactions, and more importantly, for the level of public trust and the political engagement of the nonelite. Romania’s anti-corruption reforms are likely to remain shallow, its democratic processes unstable, and Europeanization reversible as long as the elite pursues agendas that differ from the common good and the nonelite remains unable to sustainably hold the elite accountable.
Open Access This chapter is licensed under the terms of the Creative Commons Attribution 4.0 International License (http://​creativecommons.​org/​licenses/​by/​4.​0/​), which permits use, sharing, adaptation, distribution and reproduction in any medium or format, as long as you give appropriate credit to the original author(s) and the source, provide a link to the Creative Commons license and indicate if changes were made.
The images or other third party material in this chapter are included in the chapter's Creative Commons license, unless indicated otherwise in a credit line to the material. If material is not included in the chapter's Creative Commons license and your intended use is not permitted by statutory regulation or exceeds the permitted use, you will need to obtain permission directly from the copyright holder.
Footnotes
1
Commission of the European Communities (2006).
 
2
Commission of the European Communities (2008).
 
3
Figure 4.1 was developed by the author based on data gleaned from the official websites of the Romanian Parliament (www.​cdep.​ro and www.​senat.​ro). The entries highlighted in different shades of blue represent adopted and promulgated legislative acts that run in parallel to the initial ANI Law, Law 144/2007 (displayed in black). The binding decisions of the Romanian Constitutional Court (DCC) are displayed in grey. Figure 4.1 also indicates (in the respective colours for each law) all the intermediary drafts adopted and amendments proposed and discussed in the Chamber of Deputies (CD) or in the Senate (S) before the final vote and the promulgation.
 
4
Figure 4.2 was developed by the author based on data gleaned from the official websites of the Romanian Parliament (www.​cdep.​ro and www.​senat.​ro).
 
5
Source: The Re-evaluation Request, available at http://​www.​cdep.​ro/​proiecte/​2017/​400/​80/​2/​cerererx482.​pdf, accessed 15 March 2018.
 
6
Parliament of Romania (2010: 16).
 
7
Romanian Constitutional Court (2014).
 
9
Parliament of Romania (2007). Law 144/2007, Art. 4 (3).
 
10
Parliament of Romania (2010). Law 176/2010.
 
11
Parliament of Romania (2010). Law 176/2010, Art. 11 (1).
 
12
European Commission (2011c: 10).
 
13
Parliament of Romania (2007). Law 144/2007, Art. 50 (1) as adopted by the Senate of Romania.
 
14
Parliament of Romania, Senate of Romania (2010) Draft bill adopted by the Senate of Romania on 12 May 2010, Art. 28 (2).
 
15
Parliament of Romania, Senate of Romania (2010) Draft bill adopted by the Senate of Romania on 12 May 2010, Art. 35–2.
 
16
European Commission (2011b: 6).
 
17
Commission of the European Communities (2006).
 
18
The numbering of the articles making up ANI Law was completely revised with every amendment of the law. This chapter makes reference to the same articles of law: Art. 2 of 144/2007 (now Art. 8 (1) of 176/2010); Art. 20 (2) of 144/2007 (now Art. 11 (1) of 176/2010); Art. 44 (1) of 144/2007 (now Art. 17 (1) of 176/2010); Art. 47 (2) of 144/2007 (now Art. 25 (2) of 176/2010); Art. 50 of 144/2007 (now Art. 28 of 176/2010); Art. 52 of 144/2007 (now Art. 29 (1) of 176/2010); Art. 53 (1) of 144/2007 (now Art. 29 (3) of 176/2010); and Art. 61 (4) of 144/2007 (now Art. 35 of 176/2010).
 
19
Figure 4.3 was developed by the author based on the developments of the most relevant provisions of ANI legislation.
 
20
The proposed amendment received 72 votes in favour, 9 votes against and 8 abstentions in Senate’s plenary session of 12.05.2010.
 
21
For the vote in the Chamber of Deputies, the video-recording of the plenary session provides no detailed information with regard to the votes cast for each individual provision. However, it is worth noting that the draft-law, with all its amendments, was adopted on 28.04.2010 in the plenary session of the Chamber of Deputies with 183 votes in favour, no votes against and 27 abstentions.
 
22
European Commission (2008: 4).
 
23
European Commission (2009: 9, 2014b: 20, 2017d: 17); (2020a: 21).
 
24
European Commission (2009: 44).
 
25
European Commission (2014b: 65, 2017d: 61); (2020a: 75).
 
26
European Commission (2020a: 33).
 
27
The Government Emergency Ordinance 49 of 30 May 2007 and the Government Emergency Ordinance 138 of 6 December 2007.
 
28
Intervention of a PSD MP in the Chamber of Deputies in: Parliament of Romania, Chamber of Deputies, The Committee for Legal Matters, Discipline, and Immunities (2010a), Video Recording of the Meeting held on April 28th 2010., minute 00:02:40; Intervention of a PSD MP in the Chamber of Deputies in: Parliament of Romania, Chamber of Deputies (2010a), ‘Plenary Session of the Chamber of Deputies. Minutes of the Meeting held on April 28th 2010’ http://​www.​cdep.​ro/​pls/​steno/​steno.​stenograma?​ids=​6821&​idm=​16, accessed 2 Mar 2018. 
Intervention of a PSD MP in the Senate in: Parliament of Romania, Senate of Romania (2010), ‘Plenary Session of the Senate. Minutes of the Meeting held on May 12th 2010’ https://​www.​senat.​ro/​PAGINI/​Stenograme/​Stenograme2010/​10.​05.​12.​PDF, accessed 2 Mar 2018.: 85–91; Intervention of an UDMR MP in the Chamber of Deputies in: Parliament of Romania, Chamber of Deputies (2010b), ‘Plenary Session of the Chamber of Deputies. Minutes of the Meeting held on June 22nd 2010’ http://​www.​cdep.​ro/​pls/​steno/​steno.​stenograma?​ids=​6860&​idl=​1, accessed 2 Mar 2018.
 
29
Parliament of Romania, Chamber of Deputies (2017b).
 
30
Source: European Commission (2007b: 110, 2011a: 44, 2014c: 93–4, 2021b: 10, 2021c: 2).
 
31
Bertelsmann Stiftung (2016).
 
32
Bertelsmann Stiftung (2016: 24).
 
33
Bertelsmann Stiftung (2020: 3).
 
34
For more details see Bertelsmann Stiftung (2020: 10–2).
 
35
The Group of States against Corruption (2016: 8, 2021: 3–4); Freedom House (2021); Transparency International (2021).
 
36
Between 2007 and 2020, approximately 157 high public officials (among them 27 members of cabinet, 80 Members of Parliament, 3 Members of the European Parliament, 23 state secretaries and 24 central government officials), 57 regional and local counsellors and 386 mayors were sent to court for corruption, according to the reports published by Romania’s anti-corruption prosecution service. Data retrieved online from http://​www.​pna.​ro/​results.​xhtml, accessed 26 November 2021.
 
37
Transparency International Romania (2013).
 
38
Bertelsmann Stiftung (2020: 11).
 
39
Agenția Națională de Integritate (2020: 4–9).
 
40
Parliament of Romania, Senate of Romania (2010), ‘Plenary Session of the Senate. Minutes of the Meeting held on May 12th 2010’ https://​www.​senat.​ro/​PAGINI/​Stenograme/​Stenograme2010/​10.​05.​12.​PDF, accessed 2 Mar 2018: 90.
 
41
Parliament of Romania, Chamber of Deputies, The Committee for Legal Matters, Discipline, and Immunities (2010b), Video Recording of the Meeting held on June 21st 2010., minute 00:23:22.
 
42
Parliament of Romania, Chamber of Deputies, The Committee for Legal Matters, Discipline, and Immunities (2010a), Video Recording of the Meeting held on April 28th 2010., minute 03:18:21.
 
43
Parliament of Romania, Chamber of Deputies, The Committee for Legal Matters, Discipline, and Immunities (2010a), Video Recording of the Meeting held on April 28th 2010., minute 04:40:42.
 
44
Parliament of Romania, Chamber of Deputies, The Committee for Legal Matters, Discipline, and Immunities (2010a), Video Recording of the Meeting held on April 28th 2010., minute 00:22:54.
 
45
USAID (2020: 176).
 
46
The figure was adapted by the author based on the following sources: USAID (2017: 188; 2018: 170; 2019: 178; 2020: 176).
 
47
USAID (2015: 181; 2018: 173; 2020: 179).
 
48
Mungiu-Pippidi (2010).
 
49
Mungiu-Pippidi (2010: 25).
 
50
Mungiu-Pippidi (2010: 19).
 
51
USAID (2013: 158; 2020: 179–80).
 
52
USAID (2011: 157–8, 2013: 158–9).
 
53
USAID (2013: 158–9).
 
54
USAID (2018: 174; 2019: 182; 2020: 180).
 
55
USAID (2011: 160).
 
56
USAID (2014: 170).
 
57
USAID (2017: 193).
 
58
Institutul pentru Politici Publice București (2014).
 
59
USAID (2015: 185); USAID (2017: 196).
 
60
Parliament of Romania (2007). Law 144/2007, Art. 39 (1) 35.
 
61
Parliament of Romania (2010). Law 176/2010, Art. 1 (1) 37.
 
62
A PDL Senator: Parliament of Romania, Senate of Romania (2010), ‘Plenary Session of the Senate. Minutes of the Meeting held on May 12th 2010’ https://​www.​senat.​ro/​PAGINI/​Stenograme/​Stenograme2010/​10.​05.​12.​PDF, accessed 2 Mar 2018.
 
64
USAID (2013, 162).
 
65
USAID (2013, 162).
 
66
USAID (2013, 162).
 
67
USAID (2014, 171).
 
68
USAID (2015, 182).
 
69
USAID (2016, 196–7).
 
70
Parliament of Romania, Senate of Romania (2017).
 
71
Expert Forum (2017).
 
75
Mungiu-Pippidi (2010: 23).
 
76
Parliament of Romania, Senate of Romania (2017).
 
77
Freedom House (2021).
 
78
Mungiu-Pippidi (2010: 24).
 
79
Tătar (2011).
 
80
Freedom House (2017).
 
81
Freedom House (2021).
 
82
USAID (2020: 181–2).
 
Literature
go back to reference Bertelsmann Stiftung. (2016). BTI 2016 – Romania Country Report (Gütersloh). Bertelsmann Stiftung. (2016). BTI 2016 – Romania Country Report (Gütersloh).
go back to reference Commission of the European Communities. (2006). Commission Decision of 13/XII/2006 establishing a mechanism for cooperation and verification of progress in Romania to address specific benchmarks in the areas of judicial reform and the fight against corruption. Commission of the European Communities. (2006). Commission Decision of 13/XII/2006 establishing a mechanism for cooperation and verification of progress in Romania to address specific benchmarks in the areas of judicial reform and the fight against corruption.
go back to reference Commission of the European Communities. (2008). Report from the Commission to the European Parliament and the Council on Progress in Romania under the Co-operation and Verification Mechanism, COM(2008) 494. Commission of the European Communities. (2008). Report from the Commission to the European Parliament and the Council on Progress in Romania under the Co-operation and Verification Mechanism, COM(2008) 494.
go back to reference European Commission. (2007a). Progress report on the cooperation and verification mechanism - procedural aspects: MEMO/07/260. European Commission. (2007a). Progress report on the cooperation and verification mechanism - procedural aspects: MEMO/07/260.
go back to reference European Commission. (2007b). Standard Eurobarometer 66: Public opinion in the European Union. European Commission. (2007b). Standard Eurobarometer 66: Public opinion in the European Union.
go back to reference European Commission. (2008). Special Eurobarometer 291: The attitudes of Europeans towards corruption. European Commission. (2008). Special Eurobarometer 291: The attitudes of Europeans towards corruption.
go back to reference European Commission. (2009). Special Eurobarometer 325: Attitudes of Europeans towards Corruption. European Commission. (2009). Special Eurobarometer 325: Attitudes of Europeans towards Corruption.
go back to reference European Commission. (2011a). Standard Eurobarometer 75: Public Opinion in the European Union. European Commission. (2011a). Standard Eurobarometer 75: Public Opinion in the European Union.
go back to reference European Commission. (2011b). Report from the Commission to the European Parliament and the Council - On Progress in Romania under the Co-operation and Verification Mechanism, COM(2011) 460 final (Brussels). European Commission. (2011b). Report from the Commission to the European Parliament and the Council - On Progress in Romania under the Co-operation and Verification Mechanism, COM(2011) 460 final (Brussels).
go back to reference European Commission. (2011c). Supporting Document Accompanying the Report from the Commission to the European Parliament and the Council on Progress in Romania under the Co-operation and Verification Mechanism, SEC(2011) 968 final (Brussels). European Commission. (2011c). Supporting Document Accompanying the Report from the Commission to the European Parliament and the Council on Progress in Romania under the Co-operation and Verification Mechanism, SEC(2011) 968 final (Brussels).
go back to reference European Commission. (2014b). Special Eurobarometer 397: Corruption Report. European Commission. (2014b). Special Eurobarometer 397: Corruption Report.
go back to reference European Commission. (2014c). Standard Eurobarometer 81: Public Opinion in the European Union. European Commission. (2014c). Standard Eurobarometer 81: Public Opinion in the European Union.
go back to reference European Commission. (2017d). Special Eurobarometer 470: Corruption Report. European Commission. (2017d). Special Eurobarometer 470: Corruption Report.
go back to reference Institutul pentru Politici Publice București (IPP). (2014). Raportul de monitorizare: oglinda activității parlamentarilor în anul 2013 (Bucharest). Institutul pentru Politici Publice București (IPP). (2014). Raportul de monitorizare: oglinda activității parlamentarilor în anul 2013 (Bucharest).
go back to reference Romanian Constitutional Court. (2014). Decision regarding the constitutionality of the provisions in Article 25 (2) and 26 (3) of Law 176/2010. Romanian Constitutional Court. (2014). Decision regarding the constitutionality of the provisions in Article 25 (2) and 26 (3) of Law 176/2010.
go back to reference Parliament of Romania, Law 144/2007 [2007]. Parliament of Romania, Law 144/2007 [2007].
go back to reference Parliament of Romania, Law 176/2010 [2010]. Parliament of Romania, Law 176/2010 [2010].
go back to reference Parliament of Romania, Chamber of Deputies, The Committee for Legal Matters, Discipline, and Immunities. (2010a). Video Recording of the Meeting held on April 28th 2010. Parliament of Romania, Chamber of Deputies, The Committee for Legal Matters, Discipline, and Immunities. (2010a). Video Recording of the Meeting held on April 28th 2010.
go back to reference Parliament of Romania, Chamber of Deputies, The Committee for Legal Matters, Discipline, and Immunities. (2010b). Video Recording of the Meeting held on June 21st 2010. Parliament of Romania, Chamber of Deputies, The Committee for Legal Matters, Discipline, and Immunities. (2010b). Video Recording of the Meeting held on June 21st 2010.
go back to reference Senate of Romania, Draft Law L140/2017 [2017]. Senate of Romania, Draft Law L140/2017 [2017].
go back to reference The Group of States against Corruption (GRECO). (2016). Corruption prevention in respect of members of parliament, judges and prosecutors: Evaluation Report: Romania, Greco Eval IV Rep (2015) 4E (Strasbourg). Accessed March 7, 2018, from https://rm.coe.int/16806c7d05 The Group of States against Corruption (GRECO). (2016). Corruption prevention in respect of members of parliament, judges and prosecutors: Evaluation Report: Romania, Greco Eval IV Rep (2015) 4E (Strasbourg). Accessed March 7, 2018, from https://​rm.​coe.​int/​16806c7d05
Metadata
Title
Romania’s Justice and Anti-Corruption Reform: A Stubborn Divergence from European Norms in Pursuit of Personal Gains
Author
Luana Martin-Russu
Copyright Year
2022
DOI
https://doi.org/10.1007/978-3-031-11081-8_4