Report from the Commission to the European Parliament and the Council on Progress in Romania under the Co-operation and Verification Mechanism {SEC(2008)2349}
Date: 2008-07-23
Institutions: European Commission
Subjects: EU control, Romania, cooperation policy, corruption, exchange of information, judicial reform, rule of law

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COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 23.7.2008 
COM(2008) 494 final 

REPORT FROM THE COMMISSION 
TO THE EUROPEAN PARLIAMENT AND THE COUNCIL 

On Progress in Romania under the Co-operation and Verification Mechanism 

{SEC(2008)2349} 

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REPORT FROM THE COMMISSION 
TO THE EUROPEAN PARLIAMENT AND THE COUNCIL 

On Progress in Romania under the Co-operation and Verification Mechanism 

1. 

INTRODUCTION 

When  Romania  joined  the  EU  in  2007,  it  still  faced  serious  challenges  in  ensuring  the 
functioning of its judiciary and in fighting  corruption. These challenges were judged  by  the 
Commission and the other Member States to be surmountable and the Romanian authorities 
committed  to  remedy  shortcomings  in  these  areas  so  that  Romania  could  fully  assume  the 
rights and obligations of EU membership. Romania and the other Member States recognised 
that  far  reaching  judicial  reform  which  ensures  the  accountability  and  efficiency  of  the 
judicial system and the other law enforcement bodies was necessary if Romanians were to be 
able  to  exercise  their  rights  as  EU  citizens  and  benefit  from  the  financial  support  that  EU 
membership would bring. More broadly, they recognised that principles which are at the heart 
of the EU – respect for the rule of law, mutual recognition and cooperating on the basis of a 
fundamental bargain of trust – could only be put into practice if these problems were tackled 
at source. 

Against this background, the Commission and the other Member States saw the need to work 
closely  and  cooperatively  with  Romania  following  accession  to  ensure  that  the  necessary 
reforms  were  put  in  place  to  strengthen  the  judicial  system  and  to  fight  corruption.  A 
Cooperation and Verification Mechanism (CVM) was set up by the Commission to monitor 
progress  and  extend  support  in  dealing  with  these  shortcomings.  Based  on  inputs  from  the 
Romanian authorities, complemented by expert missions, this report presents a summary and 
detailed assessment of how far Romania has come in meeting the benchmarks set out in the 
CVM. It is the third report in a six monthly reporting cycle. 

The assessment points to efforts which the Romanian Government and authorities are making 
to  reform  the  judicial  system  and  investigate  corruption.  The  institutional  and  procedural 
changes  introduced  in  recent  years  to  tackle  these  problems  are  starting  to  produce  first 
results. But achievements are fragile. A broad based political consensus behind the reforms is 
lacking as is the unequivocal will across all political parties to root out high level corruption. 
The commitment of Romania to eradicate corruption is reflected at pre-trial stage but does not 
carry through to increased numbers of convictions or deterrent sanctions. The performance of 
the Romanian judicial system is hampered by legal uncertainty due to many factors, including 
an  uneven  application  of  the  law  and  the  excessive  use  of  emergency  decrees.  It  will  take 
some  time  for  the  reform  to  take  firm  root.  The  need  for  verification  and  cooperation  will 
hence continue for some time. 

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2.  THE REFORM PROCESS IN ROMANIA 

2.1.  Achievements  

Since  the  adoption  of  the  last  interim  report  by  the  Commission  in  February, 
Romania has stepped up its efforts. Despite a period of intense political debate and 
pressure, the Government has managed to restore a reform drive and relative stability 
in  the  legal  and  institutional  framework  for  the  fight  against  corruption.  The 
appointment of a new Minister of Justice in February 2008 is an important element.  

Concerning the reform of the judiciary, the Superior Council of Magistracy (SCM), 
as guardian of the independence of the judiciary, has been allocated the human and 
financial  resources  necessary  to  allow  it  to  assume  its  core  responsibilities  for 
judicial reform including to advise and act on pressing human resource problems.  

With respect to the fight against high level corruption, a number of steps have been 
taken. The  Public Ministry and the  National-Anti Corruption Directorate  (DNA) of 
Romania have established a good track record in the prosecution of cases and started 
procedures  for  launching  investigations  on  a  number  of  high  level  cases  involving 
former  ministers  and  members  of  Parliament.  It  remains  to  be  seen  how  successful 
Romania will be in completing these investigations, pursuing due legal process and 
delivering dissuasive sentences, if appropriate. 

In  the  first  half  of  2008,  Romania  made  an  important  step  forward  with  the 
establishment  of  the  National  Integrity  Agency.  This  body  now  has  to  demonstrate 
that it can monitor financial asset flows, detect and sanction unjustified increases in 
assets and regulate conflicts of interest. 

Romania  has  pursued  awareness  raising  campaigns  and  continued  to  introduce 
preventive  measures  to  counteract  local  corruption.  In  particular,  measures  have 
been  recently  introduced  to  improve  the  quality  of  public  services  thus  reducing 
opportunities for corruption.  A national corruption strategy to combat corruption in 
local public administration was adopted in June 2008.  

2.2.  Results 

After a period of uncertainty Romania has been able to re-establish its commitment 
to  judicial  reform  and  the  fight  against  corruption.  The  legal  and  institutional 
framework  is  fragile.  It  needs  to  stabilise  and  consolidate.  Administrative  capacity 
needs  to  be  nurtured  and  strengthened.  Importantly,  the  Parliament  has  to 
demonstrate  an  unequivocal  commitment  to  rooting  out  high  level  corruption.  In 
moving further, the laws, procedures and institutions which are in place have to be 
allowed to build a track record – to show that they are capable of producing results in 
a longer term perspective. 

Judicial  reform  is  moving  ahead  but  progress  is  uneven.  The  human  resource 
situation  in  the  judiciary  is  improving.  The  number  of  recruits  in  the  National 
Institute of Magistracy has increased and the number of vacancies has dropped. New 
judges  have  been  assigned  to  the  Courts  of  First  Instances.  However,  there  are 

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chronic  and  serious  staff  shortages  in  the  public  ministry  and  recruitment  practices 
do not always work to guarantee quality of staff. 

The  quality  of  the  jurisprudence  is  improving.  Appeals  on  points  of  law  are 
increasing  and  efforts  to  improve  access  to  and  consistency  of  jurisprudence  have 
been made. But these positive developments are countered by recent inconsistencies 
in jurisprudence by higher courts, including the High Court of Cassation and Justice 
in some high level corruption  cases. Uniform  and  consistent application of  law  has 
been hampered further by the frequent resort to emergency ordnances. This practice 
creates  overlaps  and  contradictions  and 
in 
implementation.  Inconsistent  jurisprudence  by  higher  courts  in  turn  leads  to  legal 
uncertainty.  All  these  factors  weaken  the  judicial  system,  often  resulting  in  lenient 
court  decisions  and  frequent  suspensions  of  sentences.  This  is  particularly 
problematic in corruption cases.  

in  procedural 

results 

flaws 

While the Superior Council of Magistracy (SCM) is well established, it has not yet 
consistently  exercised  its  full  mandate,  notably  as  regards  pro-active  investigations 
into  disciplinary  cases.  The  Judicial  Inspection  of  the  SCM  still  has  to  develop 
guidelines  and  establish  a  track-record  for  ex-officio  investigations.  The  SCM  is 
slow in coming to management and disciplinary decisions. The sanctions it imposes 
are often inconsequential. 

Romania  has  also  made  progress  with  the  establishment  of  the  National  Integrity 
Agency  (ANI).  Since  the  Commission's  last  assessment  in  February,  ANI  has 
recruited core staff and started to investigate cases. It is too early to accurately judge 
its  performance  on  cases  and  the  quality  of  its  decisions  (e.g.  on  sanctions).  It  is 
likewise too early to judge if the legal mandate of the National Integrity Agency is 
sufficiently  robust.  The  supervisory  role  of  the  National  Integrity  Council  can  only 
be judged on the basis of its future track record. 

in 

its  fight  against  high-level  corruption.  Although 

Despite  good  progress  on  the  investigative  side,  Romania  can  show  few  tangible 
the  National 
results 
Anticorruption  Directorate  (DNA)  continues  to  show  a  consistently  positive  track 
record for prosecution of high level corruption cases, court sentences remain lenient 
and inconsistent. Measures that could be taken to improve the way corruption cases 
are  handled  (such  as  a  comparative  analysis  of  court  decisions;  the  application  of 
sufficiently  deterrent  mandatory  minimum  sentences  or  alternatively 
the 
development of guidelines on such sentences) have either been delayed or have not 
been  launched.  No  real  progress  has  been  made  in  ten  key  cases  involving  former 
ministers.  This  is  partly  due  to  Parliament  having  blocked  the  investigation  and 
partly  to  dismissal  of  the  cases  by  the  High  Court  of  Cassation  and  Justice  which 
overturned  previous  decisions.  Failure  to  move  on  these  cases  undermines  the 
positive efforts undertaken at pre-trial level. 

The  intense  political  debate  on  the  'anti-corruption'  institutional  framework  has 
subsided  and  the  role  of  DNA  has  been  preserved.  However,  efforts  by  DNA  to 
continue  investigations  in  some  important  cases  have  stalled  as  Parliament  has  not 
recommended  that  judicial  procedures  be  launched.  The  reluctance  of  the  judiciary 
and Parliament to allow investigation of these high profile cases results in a loss of 
public  confidence.  Parliamentary  debate  on  the  amendments  to  the  Criminal 
Procedure Code aiming at restricting the collection of certain evidence creates legal 

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uncertainty and negatively influences ongoing investigations. This legal uncertainty 
also  results  in  reluctance  on  the  part  of  the  judiciary  to  proceed  with  cases  -  given 
that it is unclear whether evidence gathered today will be acceptable tomorrow.  

Romania continues to make progress in the fight against corruption at local level 
but needs to produce more results. Public awareness campaigns, training sessions and 
other  preventive  measures  have  been  carried  out.  The  number  of  corruption 
investigations within the police has increased. However, in areas such as health and 
education  where  there  are  clear  indications  of  corruption,  few  measures  have  been 
taken.  A  poll  conducted  by  Transparency  International  in  the  first  half  of  2008 
suggests an increase in 'every day corruption' compared to the previous year.  Signals 
from  whistle  blowers  are  rarely followed up. The  Romanian government adopted a 
national strategy on counteracting local corruption in the beginning of June, with the 
aim of developing a more transparent and efficient local administration. 

2.3.  Improvements Needed 

Judicial  reform  and  progress  in  the  fight  against  corruption  are  closely  interlinked. 
Improvements are still needed in both areas.  

The commitment to reform among key judicial institution needs strengthening: The 
Superior Council of the Magistracy has to take steps to foster the transparency and 
efficiency  of  the  judiciary  and  to  improve  its  own  accountability.  It  must  take  an 
unequivocal position on the fight against high level corruption in the context of the 
current  controversial  political  debate  in  Parliament.  The  Council  still  needs  to 
develop credibility with the judiciary by offering sustainable solutions to staffing and 
management deficiencies.  

A  continuing  effort  needs  to  be  made  to  develop  administrative  capacity  in  the 
judiciary.  Serious  staff  shortages  in  the  public  ministry  may  call  for  emergency 
measures  such  as  a  temporary  re-assignment  of  posts.  Some  elements  of  the 
recruitment procedure need to be improved to attract suitably qualified recruits. 

The National Integrity Agency will now have to demonstrate its operational capacity 
to effectively sanction unjustified assets and to verify incompatibilities and conflicts 
of interest. It has to show that it can build a strong track record in terms of cases and 
sanctions.  

Consistency and coherence in the preparation of laws and in their application needs 
to  be  ensured.  There  is  a  need  for  public  consultation  in  the  preparation  of  laws. 
Recourse to emergency ordinances should be reduced. More effort needs to go into 
applying the law consistently and uniformly. 

So as to stabilise the legal framework under which investigations can be launched the 
government  should  finalise  a  new  Criminal  Procedure  Code  (CPC)  and  make 
progress  on  the  draft  Criminal  Code.  This  would  provide  a  clearer  and  effective 
framework for prosecution and allow  better cooperation with other Member States. 
In addition, the controversial amendments to the emergency ordinance amending the 

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existing Criminal Code and the Code of Criminal Procedure introduced in Parliament 
should be dropped1. They would seriously restrict meaningful investigation. 

The fight against corruption needs to be de-politicised and Romania must affirm its 
unequivocal  commitment  to  fight  against  high-level  corruption.  Independent 
investigation  of  former  ministers  and  members  of  Parliament  by  the  judicial 
authorities  must  be  allowed  to  proceed  in  order  to  restore  public  confidence  in  the 
fight against corruption and in respect for the rule of law.  

Romania  needs  to  establish  an  accessible  and  comprehensive  system  to  allow 
individuals to notify suspected cases of corruption. Rules to protect confidentiality of 
whistle blowers need to be developed. 

Commitment to and ownership of reform needs to take root across the entire political 
spectrum  and  within  the  judiciary.  Public  trust  in  the  fight  against  corruption  will 
only be restored by delivering results and convictions in high level cases.  

3.  CONCLUSIONS 

The CVM and its related benchmarks were designed to allow Romania to demonstrate, on a 
regular  basis,  that  it  has  made  progress  on  reform  of  the  judicial  system  and  in  fighting 
corruption. The onus is on the Romanian authorities to show that the judicial system works 
and  that  investigations  into  corruption  lead  to  arrests,  prosecution  and,  depending  on  the 
court's judgement, convictions with dissuasive effect and seizure of assets. The nature of the 
reform  process  in  Romania  is  still  unsteady  and  final  convictions  in  high  level  corruption 
cases are still missing.  

Romania  presents  a  mixed  picture.  It  has  put  the  fundamental  elements  of  a  functioning 
system  in  place.  But  the  foundation  is  fragile  and  decisions  on  corruption  are  highly 
politicised.  Each  step  in  the  right  direction  engenders  a  divisive  internal  political  debate, 
fostering legal uncertainty. Commitment to reform by Romania's key institutions and bodies 
as well as with regard to different benchmarks is uneven. For example, while there is a strong 
will  by  the  prosecution  to  achieve  tangible  results  at  the  pre-trial  phase  the  same 
determination is not demonstrated throughout the judicial process. Urgently needed legislative 
proposals  such  as  a  new  Criminal  Procedures  Code  and  anti-corruption  measures  such  as 
sufficiently deterrent mandatory minimum sentences for high level corruption cases do not get 
a  sufficiently  strong  push  from  the  government.  Politicisation  of  corruption  cases  by  the 
Romanian Parliament and the failure of the judicial system to deliver sentences in high level 
corruption cases has weakened the public perception of respect for the rule of law. Genuine 
efforts by the administration at local, regional or central level to fight corruption are too often 
frustrated at political level. 

The positive reform efforts by the government, the DNA or the General Prosecutor can only 
be  successful  if  they  receive  unequivocal  support  from  all  actors  at  all  levels.  Sustained 
reform  requires  that  these  efforts  be  complemented  by  effective  implementation.  Only  firm 
and deterrent convictions in high profile cases will demonstrate in a convincing manner that 
the system works. The existing structures– should allow Romania to produce effective results 
in the fight against corruption.  

1  

Government Emergency Ordnance 60/2006. 

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Romanian  citizens  deserve  access  to  the  full  benefits  of  EU  membership  which  should 
contribute  to  strengthening  the  rule  of  law  and  eliminating  corruption.  Progress  under  the 
CVM  and  in  dispelling  doubts  about  Romania's  ability  to  deal  with  corruption  will  enable 
Romanian  citizens  to  reap  these  benefitsand  enhance  their  confidence  in  the  rule  of  law.  It 
will have long term positive effects on the Romanian economy. Romania has responsibilities 
vis-à-vis other Member states, for example as part of Justice and Home Affairs policy as well 
as in the common management of EU funds. Adequate administrative capacity and effective 
control  of  conflict  of  interest,  fraud  and  financial  irregularities  is  a  necessary  condition  for 
Romania to fully benefit from EU pre-accession and structural funds. 

Continued need for cooperation 

It is not only in Romania's but in the EU's wider interests to have a healthy administration and 
judiciary  in  Romania  which  is  able  to  successfully  deal  with  corruption.  That  is  why 
cooperation  and  support  is  essential.  The  Commission  considers  support  to  be  a  more 
effective  than  sanctions  and  will  not  invoke  now  the  safeguard  provisions  set  out  in  the 
Accession Treaty.  The  continuation of the Cooperation and Verification Mechanism will be 
needed for some time. 

The  February  report  under  the  Cooperation  and  Verification  Mechanism  highlighted  the 
significant amounts of assistance Romania has received in recent years from Members States 
and the Commission in either financial terms or technical expertise. It is important to ensure 
that the support provided is put to good use. All sides have to make a renewed effort to help 
Romania succeed in its reform process. The Commission is ready to work in cooperation with 
Romania and the other Member States to provide this assistance – but it requires that those on 
the  receiving  end  use  the  advice  strategically  and  effectively  so  as  to  move  forward  with 
reform and change. 

Outlook 

Romania has started to move into the right direction. The new institutions and processes need 
time to prove their effectiveness and should be allowed to continue on a steady course. That 
being  said,  an  unequivocal  and  renewed  commitment  is  needed  at  all  levels  –  across  the 
political spectrum, the administration and the judiciary - to cleanse the system of corruption 
and  to  fully  respect  the  rule  of  law.  The  Commission  strongly  encourages  Romania  to 
intensify its reforms and to maintain its close cooperation with the other Member States and 
the  Commission  so  that  the  significant  remaining  challenges  can  be  tackled  successfully 
together. 

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