Rule of law: Romania and Bulgaria’s reforms from within the Union

Romania and Bulgaria became part of the Union in the context of the so-called “Big Bang Enlargement”, which saw the integration of twelve new Member States (MS) between 2004 and 2007. Most of them were admitted in May 2004; however, a number of persisting structural problems in Romania and Bulgaria delayed their accession to the EU until January 2007. The biggest of these structural issues included the weakness of democratic institutions, an only partial respect for rule of law principles and overarching corruption. By 2007, progress in this concern was still limited. Nonetheless, the two countries were allowed into the EU to keep them in the European sphere of influence and defuse the risk of a detour towards Russia.

The need to ensure Sofia and Bucharest consolidated their democratic standards prompted the European Commission to create the Cooperation and Verification Mechanism (CVM) in December 2006. The aim was to monitor the pace of reforms in a variety of fields including the judicial system, the fight against corruption as well as the fight against organised crime in Bulgaria. The CVM will be terminated once all the foreseen benchmarks have been achieved.

Political parties in both countries have regularly voiced their hostility towards the CVM, arguing it sets a double standard for the other Member States - which are not subjected to any kind of rule of law verification mechanism. The issue has been partially addressed by the current von der Leyen Commission, which in the context of its “Rule of Law Mechanism” will now publish yearly rule of law reports regarding every MS. While the Rule of Law Mechanism was expected to replace the CVM in Romania and Bulgaria, this has not happened, as the various benchmarks have not yet been met.

The most important among these benchmarks are the independence of the judiciary, the need to address corruption and media freedom.

While CVM reports throughout the years have told a story of improvement in both countries, especially in the immediate aftermath of the EU accession in 2007, many citizens believe that so far this is not enough. According to 2019 Eurobarometer data, only 37% of the population in both countries perceive the level of judicial independence to be “good or very good”. The main reason being the excessive influence of political elites on judges and courts.

In Bulgaria, the problem is closely tied to the figure of the Prosecutor General - currently Ivan Geshev. Multiple CVM reports denounce his disproportionate influence over the Supreme Judicial Council (SJC) - the body in charge of representing the judiciary, his standing up for its independence and determining the composition of ordinary courts. The intrusive presence of the Prosecutor General thwarts the SJC’s ability to resist political pressure. Moreover, existing laws shelter the Prosecutor from oversight, making it cumbersome to oust or conduct investigations against them. Such a situation, together with the meagre results obtained in the fight against corruption, has led to large-scale protests, which having started in July 2020 are still ongoing.

The situation in Romania deteriorated drastically in 2017, due to the controversial reforms of the judicial system put in place by the then-ruling Social-democratic party. The CVM reports denounced these reforms, especially the creation of a specific investigative section to prosecute felonies committed by members of the judiciary. Such a unit is seen by EU observers as a way to pressure the judiciary by making it more open to political blackmail. In addition, reports noted the lack of transparency behind the appointment of the current Prosecutor General and Chief Prosecutor of the National Anti-corruption Directorate (DNA), who got the job despite the negative opinion expressed by the SJC. These reforms led to widespread protests, reportedly the biggest since 1989, and eventually the Social-democratic government was brought down in 2019. The government that followed suit, led by liberal Ludovic Orban – who resigned in the aftermath of the December 2020 elections - proved to be less divisive and tried to push Romania back on the track of correct reforms.

High-level corruption, an issue closely related to the independence of the judiciary, is widespread in both countries and has expressly been monitored by the CVM since 2007. The population is fully aware of the extent of the problem: Bulgaria and Romania rank 70th and 74th in the global Transparency International Corruption Perception Index and are at the bottom of the EU ratings.

According to the 2019 Eurobarometer, 80% of Bulgarians perceive corruption as widespread in their country. This helps to explain the scale of the ongoing protests demanding the Prosecutor general Geshev and the Prime minister Boyko Borissov to step down: they are accused of incompetence and of using their political position only for their personal benefit. The CVM underlines that the anti-corruption legislative framework is technically sufficient and could serve its purpose. However, procedures are highly bureaucratic and with too much red tape, while relevant bodies such as the newly appointed anti-corruption commission are underfunded and understaffed.

The situation is quite similar in Romania. Recent legislative efforts, which for instance led to the creation of the DNA, are not sufficiently supported and are crippled by the persisting lack of independence of the judiciary. A list of the last negative developments includes the reduction of the statute of limitation, the reduced punishment of crimes committed while acting as public figures, such as the abuse of authority, and the non-clarification of existing rules in place to report acts of bribery.

In both countries, trust in media freedom is low. The rules in place are unclear and journalists face political pressure from members of the government, placing Romania and Bulgaria at the lowest end of the ranking in Europe with regards to media freedom. The extent of the problem, however, is not the same. The annual Reporters Sans Frontières report places Romania in 44th place, Bulgaria finds itself at the 111th spot, last in Europe, resulting in it being perceived as the “black sheep of the EU”.

Emblematic in this sense is the state of the Bulgarian National Television (BNT), whose stance has clearly become pro-government after the appointment of its new Director General. National and European funds are allocated to government-friendly broadcasters, without any form of transparency. The oligarch Delyan Peevski embodies the need for a law preventing centralisation of power in the media, as he owns two newspapers, a TV channel, various news websites and controls much of the printed paper distribution chain. Another example is that of Nova TV, recently acquired by the oligarch Kiril Domuschiev: his arrival marked the layoff of a number of critical investigative journalists, such as well-known Mirolyuba Benatova. The position of independent reporters is further complicated by an unwritten agreement among pro-government news media not to hire journalists fired by another one in their circle. Newspapers openly opposing the government exist, but they have denounced their extremely unfavourable working conditions, as well as their lack of access to politicians from the governing coalition, who are impossible to interview outside of state-organised press conferences. In addition, several opposition journalists accused the police of verbal and physical violence - especially while covering the current protests against the Borissov cabinet.

In Romania the situation is more favourable thanks to the existence of a decent legislative framework ensuring media freedom. Its implementation, however, appears problematic: media often falls under political pressure, and newspaper funding is often not transparent. These conditions favoured the emergence of a group of oligarchs who are now controlling the media business, just like in Bulgaria. The power of this group became apparent during the 2017 protests, with facts being reported in a partisan manner and the diffusion of a plethora of fake news. On the same occasion, fifteen cases of verbal and physical abuse from the police against journalists have been reported. Moreover, numerous independent media organisations are nowadays being monitored or outrightly prosecuted by the Prosecutor general or by the DNA - suggesting a continuous political presence in the media.

Romania and Bulgaria exemplify both the strengths and the weaknesses of the European Union’s approach in defending and promoting the rule of law. Such an approach seems deep enough and is supported by an effective system of sanctions and incentives. Moreover, it manages to combine the different conceptions of rule of law deriving from the different traditions of the various MSs. However, for this system to properly work, at least one of two crucial aspects needs to be present.

The first is the collaboration of the country that needs to undergo the reforms, which must share the Union’s vision of the rule of law and be willing to take on the economic and political costs of the reforms. The second is the ability for the EU to offer incentives, the strongest being EU membership. Such an incentive, however, is lost the moment a country becomes an MS – as was the case in 2007, for Romania and Bulgaria. The CVM experience once again proved the importance of these two aspects.

The two countries kept going with their reforms after they joined the EU, as they wanted to be accepted by the rest of the bloc by catching up with its standards. However, this incentive is not as strong as the prospect of membership. Furthermore, whenever national governments do not harbour such aspirations, the rule of law worsens - such as in Romania in 2017, or in Bulgaria right now. These drawbacks should not belittle the Union’s role in promoting rule of law in these countries. Quite the contrary: they have proved to be rather impressive, given the absence of an effective procedural framework aimed at defending it.