2022: THE YEAR WHEN THE CVM BECAME HISTORY FOR ROMANIA

The report of the European Commission and of the Council on the progress of Romania within the Cooperation and Verification Mechanism (CVM) concludes that the country now meets the conditions for lifting the verification mechanism. The latest issues are being tackled thorough high-level talks and insurances given by the Romanian authorities.

“We can say now that the CVM commitments have been met and that what remains to be done may be pursued through conventional tools, via the reports on the rule of law. (...) It’s a positive report, concluding that the CMV can be lifted, and that further monitoring may continue under the rule of law report cycle” declared an EC official on November 22, 2022.

These declarations, alongside the official announcement by the European Commission on the adoption of the assessment report on progress made by Romania in the field of justice, symbolically mark the end of a journey that Romania embarked on in 2007 when joining the European Union.

What is CVM and why was it necessary ?

The CVM was created by the European Commission upon joining of the European Union by Romania and Bulgaria in 2007, as a transitory measure aimed at carefully monitoring but also as means of assisting the two countries in remedying the shortcomings they were dealing with at the time of the accession to the EU, in the areas of judicial reform, fight against corruption and, in Bulgaria’s case, fight against organized crime.

The European Commission adopted on December 13, 2006, a decision for establishing the 4 benchmarks to be met by Romania: (1) Ensure a more transparent and efficient judicial process by enhancing the capacity and accountability of the Superior Council of Magistracy. Report and monitor the impact of the new civil and penal procedure codes. (2) Establish, as foreseen, an integrity agency with responsibilities for verifying assets, incompatibilities, and potential conflicts of interest, and for issuing mandatory decisions based on which dissuasive sanctions can be taken. (3) Building on progress already made, continue to conduct professional, non-partisan investigations into allegations of high-level corruption. (4) Take further measures to prevent and fight against corruption, in particular, within local government.

The first report of the European Commission was presented on the 27th of June 2007.

The Commission assessed progress yearly ever since, stressed the benchmarks and issued recommendations on the steps to be taken by the Romanian State to ensure fulfilment of the obligations related to its EU Membership and correct enforcement of the European legislation, policies, and programs. In January 2017, following a comprehensive assessment of the progress made during the 10 years covered by the mechanism, the Commission published a barometer report including 12 recommendations¹  which, if completed, and unless developments clearly reversed the course of progress, would allow Romania to fulfil the benchmarks and close the CVM process.

Since that date, the Commission has carried out four assessments of progress on the implementation of the recommendations.

Reports published between 2017 and 2019 showed a slowdown in the pace of reform and the emergence of new elements calling into question the irreversibility of the progress made before. The 12 recommendations of the 2017 report were therefore no longer sufficient²  8 additional ones were made in 2018.

The report of October 2019 concluded that Bulgaria had met the recommendations under the CVM and all benchmarks had been satisfactorily achieved.

Thus, the MCV was lifted for Bulgaria, subject to further monitoring under of the rule of law annual cycle and, more specifically, under the Commission's annual report on the rule of law.

For Romania, the report published in June 2021, found that substantial progress was made, with many recommendations underway, provided the pace of progress is maintained.

After the CVM ... The european rule of law protection mechanism

The 2022 report finds that Romania has made great efforts to implement the European recommendations, through new laws, policies and tools aimed at strengthening the judicial system and the fight against corruption.

It further provides that assessment of the judicial system will continue, each year, like in the case of the other Member States, through the European mechanism for the protection of the rule of law (the "Rule of Law mechanism").

Among the important reforms referred to by the Commission in this latest report, there are the three laws relating to justice recently promulgated by the President of Romania (the Law no. 303/2022 on the statute of judges and prosecutors, the Law no. 304 /2022 on the judicial organization and the Law no. 317/2022 on the organization of the Judicial Superior Council), the progress made in reviewing the criminal codes, and strengthening of the framework addressing the matter of integrity.

The report also finds that the authorities are committed to rely on the opinion of the Venice Commission for the laws relating to justice and the other measures to be adopted.

With regard to the fight against corruption, the report shows positive results of investigations and sanctions against high-level corruption in 2021-2022.

“The parliament has improved the procedure for lifting political immunity and the institutions responsible for enforcing the rules on integrity and conflict of interest, as well as the management and recovery of illicit assets, have worked effectively», states the press release published by Brussels.

The European mechanism for the protection of the Rule of Law, based on Article 7 of the EU Treaty, provides for an annual dialogue on the rule of law involving the European Commission, the Council, and the Parliament, but also the Member States, national parliaments, civil society, and other concerned parties.

Each year, a report on the rule of law is drawn up following this dialogue, which is a starting point for discussions within the union and aims to identify the challenges and solutions to maintain and protect the rule of law in each Member State.

The report focuses on 4 pillars: the justice system, the anti-corruption framework, media pluralism and other institutional issues related to checks and balances.

Under a European Regulation entered into force in 2021, the Council may adopt, upon proposal of the European Commission, precautionary measures such as the suspension of payments by the EU or of the approval of one or more programs funded by the European budget³.

This conditionality mechanism thus allows the EU to suspend payment of EU funds to a country where breaches of the rule of law likely to harm the financial interests of the EU are found.

Any decision to suspend or reduce the payment of EU funds must be supported by at least 15 of the 27 member states.

Therefore, after the lifting of the CVM, the Commission will monitor the implementation of the reforms agreed with the Romanian State through the annual report on the protection of the rule of law.

The issues under check are: the new regime replacing the Section for investigation of crimes in the judicial system, the functioning of the judicial inspection, human resources in the judicial system, the execution of court decisions by the public administration, the impact of the forthcoming review of the criminal law on the effectiveness of the fight against corruption, as well as the evolution of the integrity framework and its application, including by the Parliament.

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The decision to officially lift the MCV carries significant symbolism for the achievement of another Romanian benchmark, which is joining the Schengen area.

Even though the European Commission has always maintained that there is no direct link between the enlargement of the Schengen area and the CVM, the support shown by the European executive may tip the balance for Romania and foster a favourable decision regarding Romania's admission to the Schengen area.

Last but surely not least, the lifting of the MCV will positively impact the image of Romania, especially with view to how it is perceived by its partners and by investors.

At least symbolically, Romania will be able to get rid of the appellation of “second-tier country in the EU” and of a corrupt country with a dysfunctional and obsolete judicial system.

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Note

1.  Implement a strong and independent system for appointing senior prosecutors (2) Develop a Code of Conduct for parliamentarians with clear provisions on mutual respect between institutions (3) Complete the reform of the criminal code and the code of criminal procedure (4) Improve transparency and predictability of the legislative process (5) Develop and implement an action plan to address the issue of the enforcement of court decisions and the application by the public administration of the case law of the courts and tribunals, including in particular a mechanism providing reliable statistics to enable the follow-up of these questions in the future. Develop an internal monitoring system involving the CSM and the Court of Auditors to ensure the proper implementation of the action plan (6) Entrust the strategic authorities of the judicial system, namely the Minister of Justice, the CSM, the High Court of Cassation and Justice and the Attorney General, the responsibility to guarantee the implementation of the action plan (7) Have the CSM draw up a collective program intended to promote transparency and accountability (8) Ensure the implementation of the PREVENT system, which provides for reporting on ex ante checks in public procurement procedures and on the measures taken as a result of checks, including ex post checks, as well as reports on cases of conflicts of interest identified (9) Increase the transparency of the decision-making process of Parliament with regard to the monitoring of final and irrevocable decisions taken against its members in the event of incompatibilities, conflicts interests and unjust enrichment, (10) Adopt objective criteria for taking and giving reasons for decisions to lift the immunity of parliamentarians (11) Continue implementing the national strategy to combat corruption ( 12) Ensure that the National Agency for the Management of Seized Assets is fully and truly operational.
2. (1) Suspend immediately the implementation of the Justice laws and subsequent Emergency Ordinances. (2) Revise the Justice laws taking fully into account the recommendations under the CVM and issued by the Venice Commission and the Council of Europe's Group of States Against Corruption GRECO (3) Suspend immediately all ongoing appointments and dismissal procedures for senior prosecutors (4) Relaunch a process to appoint a Chief prosecutor of the DNA with proven experience in the prosecution of corruption crimes and with a clear mandate for the DNA to continue to conduct professional, independent and non-partisan investigations of corruption. (5) The Superior Council of Magistracy to appoint immediately an interim team for the management of the Judicial Inspection and within three months to appoint through a competition a new management team in the Inspection (6) Respect negative opinions from the Superior Council on appointments or dismissals of prosecutors at managerial posts, until such time as a new legislative framework is in place in accordance with recommendation 1 from January 2017 (7) Freeze the entry into force of the changes to the Criminal Code and Criminal Procedure Code (8) Reopen the revision of the Criminal Code and Criminal Procedure Code taking fully into account the need for compatibility with EU law and international anti-corruption instruments, as well as the recommendations under the CVM and the Venice Commission opinion.
3. The European Parliament adopted on Thursday, November 24, 2022, with 416 votes for, 124 votes against and 33 abstentions, a resolution finding that the measures negotiated by Hungary with the European executive within the framework of the recovery program are not sufficient to avert the risk of harm to the financial interests of the EU. On September 18, 2022, the Commission proposed to freeze €7.5 billion of EU funds for Hungary, citing corruption concerns, after triggering the rule of law conditionality mechanism against Hungary. Hungary in April. See https://www.europarl.europa.eu/news/ro/press-room/20221118IPR55719/parliament-insists-that-the-eu-must-freeze-funding-to-hungary.