Legal base	—
Documents originated	12 February 2009
Deposited in Parliament	16 February 2009
Department	Foreign and Commonwealth Office
Basis of consideration	Minister's letter of 6 April 2009
Previous Committee Report	HC 19-xii (2008-09), chapter 3 (25 March 2009); also see (29876) 12177/08 and (29877) 12182/08 HC 16-xxix (2007-08), chapter 2 (10 September 2008); (29431) 6150/08 and (29432) 6161/08 HC 16-xiii (2007-08), chapter 15 (27 February 2008); (28754) 11491/07 and (28768) 11489/07 HC 41-xxxii (2006-07), chapter 11 (25 July 2007) and (27865) 13347/06: HC 34-xxxvii (2005-06) chapter 3 (18 October 2006)
Discussed in Council	23 February 2009 General Affairs and External Relations Council
Committee's assessment	Politically important
Committee's decision	Not cleared; further information requested

Background

6.1 The accession negotiations with Romania and Bulgaria were concluded in December 2004 and a Treaty of Accession was signed on 25 April 2005. The UK ratified the Treaty on 5 April 2006.

6.2 The Commission's October 2005 and May 2006 monitoring reports identified a number of areas where further improvements were needed in order to meet all membership requirements — some technical, involving physical security, animal and human health, and financial controls; others political, revolving around judicial administration, corruption, organised crime and human rights; but all going to the heart of a properly functioning governance system based on the effective implementation of laws by an accountable, independent and effective judiciary and bureaucracy. Given the nature and number of these reservations about both countries' readiness for accession on 1 January 2007, the Commission and the Council agreed to postpone a final decision until autumn 2006. The Accession Treaty allowed for a delay until 2008, but only if the Commission recommended that either country was "manifestly unprepared" for membership. The Commission's final verdict was that both countries would be in a position to take on the responsibilities of membership by 2007.

6.3 There were, however, still significant shortcomings, particularly on JHA issues (for details, see our previous Reports). So, various post-accession measures were put in place, the most crucial being the Mechanism on Cooperation and Verification — a process whereby, having set benchmarks on JHA issues, the Commission works closely with both governments on steps to meet them, and reports to the European Parliament and the Council, with the sanction of non-recognition of judicial decisions under mutual recognition arrangements if progress was insufficient.[31] Accession on 1 January 2007 was now essentially a fait accompli; however, given the range of outstanding issues and their implications for actual and aspiring candidates, we recommended that the Commission's final verdict be debated in the European Standing Committee. That debate took place on 15 January 2007.[32]

6.4 Romania's benchmarks are:

• Benchmark 1 — Reform of judicial process
• Benchmark 2 — Establishment of an integrity agency
• Benchmark 3 — Investigation of high level corruption
• Benchmark 4 — Corruption, in particular within local government

Bulgaria's benchmarks are:

• Benchmark 1 — Independence/ accountability of judicial system
• Benchmark 2 — Transparency/efficiency of judicial process
• Benchmark 3 — Reform of the judiciary
• Benchmark 4 — High level corruption
• Benchmark 5 — Corruption at borders and in local government
• Benchmark 6 — Organised crime

The Commission 2009 Interim Reports

6.5 The Commission monitors progress and writes reports every 6 months: interim reports at the start of the year and main reports at mid-year. These are the latest interim reports for both countries. Both are described as a technical update on significant developments during the 6 months prior to 15 January 2009; not an assessment of progress achieved, but "limited to measures that have either been completed or where their finalisation can be expected".

6.6 Both are summarised in detail in our most recent Report, together with the history of the Committee's consideration and assessment of the process thus far.

6.7 The Bulgaria Report concludes thus:

"The next assessment of progress by the Commission in summer 2009 will show the extent to which Bulgaria has been able to address the shortcomings identified by the Commission in the reform of the judiciary and to produce convincing and tangible results in the fight against corruption and organised crime. In order to demonstrate systemic and irreversible change, Bulgaria needs to show that it has put in place an autonomously functioning, stable judiciary which is able to detect and sanction conflicts of interests, corruption and organized crime and preserve the rule of law. This means in particular adopting the remaining laws needed to complete the legal system and showing through concrete cases of indictments, trials and convictions regarding high-level corruption and organised crime that the legal system is capable of implementing the laws in an independent and efficient way."

6.8 The Romania Report concludes thus:

"The next assessment of progress by the Commission in summer 2009 will show to which extent Romania has been able to successfully address the shortcomings identified in the reform of the judiciary and to produce convincing and tangible results in the fight against corruption.

"It will be crucial for Romania to achieve significant, irreversible progress by then. Romania must demonstrate the existence of an autonomously functioning, stable judiciary which is able to detect and sanction corruption and preserve the rule of law. This means in particular adopting the remaining laws needed to modernise the legal system and showing through an expeditious treatment of high-level corruption cases that the legal system is capable of implementing the laws in an independent and efficient way."

6.9 In her brief Explanatory Memorandum of 18 March 2009 the Minister for Europe at the Foreign and Commonwealth Office (Caroline Flint) welcomed these reports and supported the Commission's proposal to continue with the Cooperation and Verification Mechanism — saying that "a rigorous, transparent and objective monitoring mechanism" was "essential to support reform in Romania and Bulgaria, as well as ensuring the integrity of EU enlargement policy". The Minister agreed with the report "that EU support — not sanctions — is the best way to drive forward reforms."

6.10 The Minister noted that both Reports were adopted at the 23 February General Affairs and External Relations Council. The Conclusions adopted by the Council are at Annex 1 of this chapter of our Report.[33]

Our assessment

6.11 For our part, we noted that, while there had been some institutional progress, there was still a lack of results, particularly with regard to successful prosecutions of high level corruption cases. Notwithstanding that these reports were said by the Commission to be technical and not assessments of progress, it was impossible to avoid a sense of continuing, and understandable, disappointment running through them, which we shared. It was plain in particular from the "Outlook" sections just how much doubt continued to remain about the commitment of the authorities in both countries to get to grips with issues that had been plaguing them since before accession. Previously, the spotlight was on Bulgaria; now, it seemed, it was Romania that was going backwards, and that, disturbingly, parliament remained part of the problem.

6.12 We noted similar hints in the Council Conclusions, which called upon both countries "to intensify their efforts in the coming months by taking all necessary steps without delay, in particular with regard to areas highlighted in the conclusions of the Interim reports, in order to consolidate progress already made and calls upon them to achieve substantial and lasting results."

6.13 Against this background, we found it puzzling that the Minister had nothing to say beyond a mere 64 words of comment, one sentence of which was lifted almost verbatim from her predecessor's previous Explanatory Memorandum, and all of which was about the process rather than what was causing it to continue to falter. We were again left wondering how this process was, as the Minister put it, "ensuring the integrity of EU enlargement policy". We asked in what the circumstances it might ever be appropriate to impose sanctions, given that each successive Report continued to paint essentially the same picture and to propose the same remedy; and asked the Minister to tell us more about what she thought was continuing to hold back real progress in both countries.

6.14 We also asked to be told more about a proposal by the Bulgarian government whereby the Cooperation and Verification Mechanism would, apparently, be replaced by one in which Commission and other Member States would be directly involved in tackling areas where "weaknesses may be qualified as structural and persistent and … cannot be resolved by the Bulgarian government alone"; what its status was; and what the Minister's views were of it.[34]

6.15 All in all, we felt that it might be argued that this process — which, as we have said before, seems to have been undermined at the outset by the participation of the parties concerned and, by virtue of beginning after accession, to be devoid of any effective sanctions — was introduced too late in the proceedings. The main lesson, we said, was that this must not be the case when the readiness of Croatia, and others, came to be judged. As both these Reports said, what was needed — before accession, not after — was an "autonomously functioning, stable judiciary which is able to detect and sanction conflicts of interests, corruption and organized crime and preserve the rule of law", with "concrete cases of indictments, trials and convictions regarding high-level corruption and organised crime" demonstrating that "the legal system is capable of implementing the laws in an independent and efficient way." We asked if the Minister agreed that this should be demonstrably so in other candidate countries before accession takes place.

6.16 We also asked the Minister to explain why these Reports were adopted so peremptorily, with no opportunity for proper scrutiny, and to undertake to ensure that the full monitoring Reports are deposited in good time for proper scrutiny prior to their consideration by the Council.

6.17 In the meantime, we retained the documents under scrutiny.[35]

The Minister's letter of 6 April 2009

6.18 The Minister says that she agrees with the Committee's overall assessment and shares its view of the underlying sense of disappointment reflected in the reports:

"Romania and Bulgaria both have a significant amount of progress to make before they meet the requirements of CVM. They need to make this progress in order to maximise the benefits of EU membership."

6.19 With regard to the Government's views on barriers to progress, the Minister says:

"Although some progress is being made in both countries, it is being held back by a variety of reasons — institutional inertia, political point scoring, resistance to change, lack of experience and lack of will. In Bulgaria, the influence of organised crime is an additional complication. The only way to tackle these is to continue to work with Bulgaria and Romania, provide honest and direct advice and to work closely with EU partners and the Commission through the CVM."

6.20 With regard to the circumstances in which the use of sanctions — or safeguards, as they are referred to in the CVM — would be considered, the Minister says:

"The Commission has made it clear that the safeguards are intended as a last resort. The justice and home affairs safeguard may be activated by the Commission to suspend the obligation on other Member States to apply and recognise judicial decisions (for example the issuing of European Arrest Warrants) and judgments made by the state to which the safeguard applies. The safeguard is a blunt tool and we believe that the regular Commission reports under the CVM and diplomatic pressure for improvement, not least from the UK, are useful levers."

6.21 The Minister then turns to "lessons learned from the experience of Bulgarian and Romanian accession and in particular how those lessons are being applied to Croatia", and says:

"As I said in the European Committee B Debate on 2 February, lessons have been learned from the previous round of enlargement. The new chapter covering judicial reform, fundamental rights and anti-corruption has been introduced. I agree with the Committee that we need to tackle the issues around judicial and public administration reform early on in the process."

6.22 With regard to the proposal from the Bulgarian Prime Minister "to recruit experts from Member States to work in priority areas of their administration", the Minister says:

"Commission President Barroso has replied to the Bulgarian proposal stating that in the Commission's view the CVM is the best mechanism to promote reform within Bulgaria and that what is needed is sustained, concrete results, not new institutional structures. We support this response.

"Foreign experts working in other Member States is not a new development and has been happening via the EU Twinning programme since 1998. For example, UK Ministry of Justice experts are currently working with their Bulgarian counterparts on prison reform and probation service reform projects in Bulgaria. However, foreign expertise and cooperation is not sufficient on its own and responsibility for progress continues to lie with the Bulgarian government."

6.23 Finally, the Minister asks the Committee to "rest assured that the full monitoring Reports will be deposited with the Committee as soon as we have a published, final, version."

Conclusion

6.24 More than two years after accession, as the Minister says, both Bulgaria and Romania "have a significant amount of progress to make before they meet the requirements of CVM." In our view, this progress needs to be made not just in order for them "to maximise the benefits of EU membership", but also for the rest of the EU not to find itself with the benefits of enlargement being undermined.

6.25 As the Minister also notes, the CVM safeguard is "a blunt tool". Plainly, for both parties — the EU and the candidate state — to benefit fully from accession, it is essential for the issues that continue not to be addressed effectively by Bulgaria and Romania to be addressed, and not early on in the process (as the Minister puts it), but (as we put it, and with which we invited the Minister to agree, but which she seems reluctant to endorse) before accession takes place. The experience with the CVM process is that leaving any aspect of judicial reform, fundamental rights and anti-corruption until after accession is an invitation to the same "institutional inertia, political point scoring, resistance to change, lack of experience and lack of will" that, as she says, continues to blight Bulgaria and Romania and thus to short-change all concerned.

6.26 We also note that the Minister still does not explain why these Reports were adopted so peremptorily, with no opportunity for proper scrutiny; nor are we at all assured by what she says regarding the main Reports in the summer. Given the overall context, we believe that the House has the right to consider these Reports, and if necessary to have them debated, prior to the adoption of any Conclusions by the Council. We accordingly ask the Minister to assure us that she will ensure that they are deposited in accordance with this request.

6.27 In the meantime, we shall continue to retain the documents under scrutiny.

Annex 1: Mechanism on cooperation and verification for Bulgaria and Romania: Council conclusions of 23 February 2009

The Council adopted the following conclusions:

"Reaffirming its earlier conclusions, in particular those of 15 September 2008, the Council welcomes the Interim reports from the Commission on Progress in Romania and Bulgaria under the Cooperation and Verification Mechanism and fully shares the analysis of the Commission contained therein. The Council notes the continued good level of co-operation of Bulgaria and Romania with the Commission and the other Member States.

"Recalling the importance of the political will to take the necessary steps, the Council welcomes the reaffirmed commitment expressed by Bulgaria and Romania and acknowledges the efforts made by these two Member States to make the progress needed to meet the objectives set under the mechanism.

"The Council encourages Bulgaria and Romania to intensify their efforts in the coming months by taking all necessary steps without delay, in particular with regard to areas highlighted in the conclusions of the Interim reports, in order to consolidate progress already made and calls upon them to achieve substantial and lasting results. In the light of the above, the Council looks forward to the Commission reports to be tabled in the summer 2009. The Council will continue to pay careful attention to developments in this area."

32   Stg Co Deb, European Standing Committee, 15 January 2007, cols. 3-28. Back

33   And are available at http://www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/en/gena/106332.pdf. Back

34   See "A new colonialism" at page 43 of "The Economist" of 21 March 2009.  Back

35   See headnote: HC 19-xii (2008-09), chapter 3 (25 March 2009). Back