The fight against corruption in EU external relations A. Corruption and EU enlargement : from candidacy to accession

A key external aspect of EU anti-corruption strategy is the requirement for countries seeking accession to the European Union to comply with Union acquis on corruption.⁵³Compliance with anti-corruption require-ments in this context was deemed necessary not only in order to ensure

51 Article 2(2).

52 Case C-303/05, Advocaten voor de Wereld VZW v Leden van de Ministerraad, ECR [2007]

I-3633.

53 For a detailed analysis, see Szarek-Mason, op. cit.

the protection of EU financial interests and the internal market, but also in order to achieve institutional stability and to promote the rule of law in candidate countries. Compliance with anti-corruption standards is thus inextricably linked to fulfilment of the Copenhagen criteria which under-lie the very start of accession negotiations, in particular the criteria relat-ing to democracy and the rule of law. Compliance with anti-corruption standards and rules can thus be viewed as a prerequisite for the assumption by candidate countries of the obligations of EU membership. This applies in particular to the current candidate countries, in the light of the present quantitative and qualitative development of EU acquis in areas of law (such as criminal law) which are highly relevant to the protection of fundamen-tal rights and the rule of law.

In the accession process that led to the EU enlargements of 2004 and 2007, candidate countries were required to comply with a series of specific anti-corruption standards, including both the measures analysed earlier in this section relating to internal EU criminal law on corruption and, as we shall see, measures developed outside the EU, in international fora. How-ever, as has been noted, pressure to comply with anti-corruption standards decreased after accession, with the former candidate countries no longer being monitored as rigorously as they were during the accession process, leading to claims that “paradoxically, anti-corruption standards actually diminished once the CEE countries acceded to the EU”.⁵⁴ Concerns of this kind in the general field of EU criminal law prompted the insertion in the Accession Act, following the 2004 enlargement, of a “safeguard clause” to cover potential shortcomings in the implementation by newcomers of EU instruments relating to mutual recognition in criminal matters. In case of serious shortcomings, or an imminent risk of such shortcomings, in these matters, the Commission may, after consulting the Member States, intro-duce safeguards including temporary suspension of the provisions on ju-dicial co-operation in criminal matters.⁵⁵ The safeguard clause could have been invoked for three years after accession, but this never happened and the period has now expired.

54 Szarek-Mason, op. cit., p. 220.

55 Article 39 of the Accession Act. For an overview, see Ch. Hillion, “The European Union is Dead. Long Live the European Union… A Commentary on the Treaty of Ac-cession 2003”, in European Law Review, vol. 29, 2004, pp. 583-612 at pp. 605-607.

Concerns about the implementation of the EU criminal law acquis by new Member States persisted in the context of the sixth EU enlargement which saw Bulgaria and Romania joining the Union in 2007. In its pre-accession monitoring reports, the Commission was consistently critical of progress in the fields of justice and home affairs ; more generally, gaps in in-stitutional capacity cast doubt on the feasibility of the 2007 accession date for both countries.⁵⁶ Nearer the accession date, the Commission published a critical monitoring report which pointed out continuing shortcomings in the two countries’ judicial systems and anti-corruption measures ; Bul-garia was also said to be deficient in measures against organised crime and money laundering.⁵⁷ The Commission recommended a safeguard clause allowing the unilateral suspension of Member States’ obligations with regard to judicial co-operation in civil and criminal matters vis-à-vis Bulgaria and Romania, plus the introduction of a mechanism to verify the newcomers’ progress after accession. The Commission’s recommendations were taken up by Member States : the Act of Accession included a safe-guard clause in criminal matters similar to the one used in 2004,⁵⁸ and the Commission adopted, on the legal basis of the Accession Treaty and the safeguard clauses in the Accession Act, two Decisions establishing “a mechanism for co-operation and verification of progress” to check specific benchmarks in the areas of judicial reform and the fight against corruption (in Bulgaria and Romania) and organised crime (Bulgaria only).⁵⁹

The benchmarks themselves are annexed to the Commission Decisions and betray anxieties about the preparedness of Bulgaria and Romania to fully assume their EU obligations in the criminal law field. They focus on compliance with anti-corruption standards and on strengthening the rule of law. Romania is asked to develop a “more transparent and efficient ju-dicial process” ; to combat corruption by establishing an integrity agency which will conduct “professional, non-partisan investigations” into allega-tions of high level corruption ; and to take “further measures” to prevent

56 For a background, see A. Lazowski, “And Then They Were Twenty-Seven… A Legal Appraisal of the Sixth Accession Treaty”, in Common Market Law Review, vol. 44, 2007, pp. 401-430.

57 European Commission, Monitoring Report on the State of Preparedness for EU Member-ship of Bulgaria and Romania, COM (2006) 549 final, Brussels, 26 September 2006, pp. 4-5.

58 Articles 37 and 38.

59 OJ L 354, 14 December 2006, p. 56 and p. 58 respectively.

and fight corruption, particularly in local government. This benchmark (which includes corruption at the borders) also applies also to Bulgaria, as do the benchmarks relating to corruption investigations and the develop-ment of a more transparent and efficient judicial process. The benchmark list for Bulgaria is somewhat more extensive : it includes the independence of the judiciary (a call to adopt constitutional amendments “removing any ambiguity” regarding the independence and accountability of the judicial system, and to continue the reform of the judiciary), together with a strong recommendation to implement a strategy to fight organised crime, focus-ing on serious crime, money launderfocus-ing and confiscation. It is thus evident that the benchmarks are essentially targeted towards broader institutional changes, rather than implementing specific legislation forming part of the EU criminal law acquis. Even the benchmarks relating to specific areas of EU action in criminal matters (such as corruption) refer to broader mea-sures aiming to change the culture and practices of the administration and judiciary.

Bulgaria and Romania are required to report once a year to the Com-mission on progress made in addressing each of these benchmarks.⁶⁰ The Commission may gather and exchange information on the benchmarks and organise expert missions for that purpose.⁶¹ If Bulgaria and Romania fail to address the benchmarks adequately the Commission may apply safeguards based on Articles 37 and 38 of the Accession Act, including the suspension of Member States’ obligation to recognise and execute, under the conditions laid down in Community law, judicial decisions from the two countries “such as European arrest warrants”.⁶² However, the progress verification decisions do not preclude the adoption of safeguards at any time, if the conditions for such measures are fulfilled.⁶³ The Commission has been publishing regular progress reports.⁶⁴ It has stopped short of rec-ommending the suspension of the relevant criminal law acquis, but with respect to Bulgaria it has coupled benchmark compliance with the issue of

60 Article 1 first indent of each Decision.

61 Article 1 second indent of each Decision.

62 Preamble, recital 7 in each Decision.

63 Preamble, recital 8 in each Decision.

64 See the recent report On Progress in Bulgaria under the Co-operation and Verification Mechanism, COM (2010) 400 final, Brussels, 20 July 2010, and On Progress in Romania under the Co-operation and Verification Mechanism, COM (2010) 401 final, Brussels, 20 July 2010.

administration of EU funds and decided to suspend certain funds until the Bulgarian authorities are able to demonstrate that sound financial man-agement structures are in place and operating effectively.⁶⁵

The design of the progress verification process is noteworthy. This is an ex post monitoring mechanism which did not come into operation until after the entry of the new Member States into the European Union. This means that, for the time being, Bulgaria and Romania are subject to more detailed evaluation and monitoring in the criminal law sphere than the other 25 EU Member States. One might describe this as applying “double standards” to the two newcomers. On the other hand, one cannot help but notice the content of the benchmarks. Not only do they address the imple-mentation of specific EU criminal law standards : they also take us back to the fulfilment of fundamental Copenhagen criteria – the institutional stability which guarantees the rule of law – and concern themselves with the institutional and judicial systems of the assessed states as a whole.

It appears that the perceived lack of preparedness to fulfil the funda-mental Copenhagen criteria – or at least those relating to the function-ing of criminal law in the “area of freedom, security and justice” – was not deemed sufficient to change the political decision to admit Bulgaria and Romania in the Union in 2007. In the light of the serious shortcom-ings revealed in assessments of the progress of these 2007 newcomers, the same decision may not be repeated in future EU enlargements. Candidate countries’ compliance with anti-corruption standards will assume grow-ing importance in this context. This seems to be confirmed by the Com-mission’s strategy in current accession negotiations, whereby compliance with anti-corruption standards is examined (along with the development of measures relating to parliament, government, public administration and the judicial system) in the framework of the chapter on the political criteria for membership, in particular democracy and the rule of law.⁶⁶

65 See in this context the additional Commission report On the Management of EU Funds in Bulgaria, COM (2008) 496 final, Brussels, 23 July 2008.

66 See Croatia 2010 Progress Report, Brussels, 9 November 2010, SEC (2010) 1326.

Turkey 2010 Progress Report, Brussels, 9 November 2010, SEC (2010) 1327.

FYROM 2010 Progress Report, Brussels, 9 November 2010, SEC (2010) 1332. See also the Commission’s Opinions on potential candidates :

Commission Opinion on Albania’s application for membership of the European Union, COM (2010) 680, Brussels, 9 November 2010, SEC (2010) 1335.

Commission Opinion on Montenegro’s application for membership of the European Union, COM (2010) 670, Brussels, 9 November 2010, SEC (2010) 1334.