Report from the Commission to the European Parliament and the Council on Progress in Romania under the Co-operation and Verification Mechanism {SEC(2009) 1073}
Date: 2009-07-22
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, 22.7.2009 
COM(2009) 401 final 

REPORT FROM THE COMMISSION 
TO THE EUROPEAN PARLIAMENT AND THE COUNCIL 

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

{SEC(2009) 1073} 

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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 - CONTEXT AND METHODOLOGY 

1.1. 

Objective:  

When  Romania  joined  the  European  Union  in  January  2007,  a  Co-operation  and 
Verification Mechanism (CVM)1 was set up to help the new Member State tackle the 
recognised need for far reaching judicial reform and the fight against corruption. The 
CVM  is  an  autonomous  Commission  decision  based  on  the  Accession  Treaty.  It 
enables  the  Commission  to  work  closely  at  political  and  technical  level  with  the 
Romanian  authorities  to  monitor and evaluate progress, to provide technical advice 
and  financial  support.  The  CVM  enables  all  other  Member  States  to  follow  and 
support  developments  in  these  areas  in  Romania  and  to  provide  both  expertise  and 
financial support. The interim and annual reports prepared by the Commission under 
the CVM assess progress and identify remaining shortcomings to help Romania set 
priorities  for  actions  to  be  undertaken  to  fully  meet  the  benchmarks  set  out  at  the 
time of accession.  

This  report  sets  out  the  Commission's  assessment  of  progress  in  meeting  the 
benchmarks since its last full report (23 July 2008). It also makes recommendations 
to  Romania  based  on  this  assessment.  The  accompanying  staff  working  paper  sets 
out the Commission's detailed assessment of progress in each of the benchmarks. The 
report  is  based  on  regular  input  received  from  the  Romanian  authorities  notably  in 
response  to  detailed  questionnaires  from  the  Commission  for  each  benchmark.  The 
Commission has been assisted in its work by a number of high level experts from the 
Member States and has also drawn on documentation and input provided by a variety 
of other sources. 

1.2. 

The benchmark methodology:  

The Commission sees all the benchmarks as closely interlinked. In its dialogue with 
Romania  ample  evidence  has  been  given  that  progress  under  one  benchmark 
contributes to progress under another benchmark. The rationale for the CVM is not 
to establish a check-list, but to develop an independent, stable judiciary which is able 
to  detect  and  sanction  conflicts  of  interests,  and  combat  corruption  effectively. 
Therefore the Commission does not envisage removing the benchmarks one by one 
but rather working with Romania to the point where the CVM in its entirety is ended.  

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Commission  Decision  2006/928/EC  of  13  December  2006  establishing  a  mechanism  for  cooperation 
and verification of progress in Romania to address specific benchmarks in the area of judicial reform 
and the fight against corruption (OJ L 354, 14.12.2006, p.56). 

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2. 

STATE OF THE REFORM PROCESS IN ROMANIA 

Achievements 

As in previous years a detailed assessment by the Commission of progress in meeting 
the benchmarks set out under the CVM can be found in the factual update annexed to 
this  report.  The  main  report  summarises  the  key  findings  of  the  Commission  and 
presents recommendations for action by Romania.  

The  Romanian  government,  supported  by  an  alliance  in  the  prosecution  and 
judiciary,  reacted  effectively  to  the  concerns  expressed  in  the  interim  report  of  the 
Commission  of  12  February  2009.  A  series  of  practical  and  legislative  steps  have 
been  undertaken  and  a  new  momentum  has  been  established  to  continue  with  the 
reform  process.  Nevertheless,  changes  still  have  to  produce  practical  results  for 
Romanian  citizens.  Moreover,  this  reform  drive  is  not  mirrored  by  an  unequivocal 
commitment  across  political  parties.  In  particular  the  Parliament  should  take 
consistent  decisions  to  support  the  efforts  of  the  executive  on  judicial  reform  and 
eradicating corruption.  

The new Civil and Criminal Codes 

The Romanian government made a clear public commitment to adopt new Civil and 
Criminal Codes in response to recommendations made by the Commission in earlier 
reports. The adoption of the two Codes in June 2009 is an important expression of 
political  commitment  and  a  significant  step  forward  in  terms  of  securing  a  more 
efficient legal system. However, the Codes are foreseen to enter into force only when 
the relevant Procedural Codes (presented at the same time by the government to the 
Parliament)  have  been  debated  and  agreed  in  normal  parliamentary  procedure.  The 
earliest expected date of entry into force for all four Codes is 2011. 

An implementing law for the application of the Codes will be needed. It is important 
to ensure that this implementing law and also the adoption procedure concerning the 
Procedural Codes do not lead to the reintroduction of provisions that were contested 
in  the  past  or  new  ones  which  would  undermine  the  efficiency  of  meaningful 
investigations into high level corruption and subsequent court proceedings.  

A good illustration of this risk will be the fate of Law 78/2000 which is the current 
legal  framework  for  high  level  anti  corruption  investigations  and  the  basis  for  the 
work  of  the  National  Anticorruption  Directorate  (DNA).  In  the  run  up  to  final 
adoption  it  will  be  important  to  ensure  that  this  crucial  framework  is  maintained 
without restrictions.  

The new Criminal Code foresees a lowering of the maximum sentences for property 
related crimes, in particular corruption and related offences. The rationale offered for 
this provision was the wish to improve the coherence of the legal framework even if 
at first sight it might appear contradictory to efforts undertaken to tackle corruption.  

A  Working  Group  on  the  individualisation  of  penalties  for  corruption  offences  has 
reported  on  discrepancies  in  judicial  decisions.  The  Working  Group  proposed 
concrete follow up recommendations: these should be taken forward notably by the 
High Court of Cassation and Justice (HCCJ) which has agreed to issue guidelines on 

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corruption  penalties.  The  latter  will  be  a  considerable  step  forward  to  improve  the 
consistency of jurisprudence. 

Reform of the Judiciary 

A  new  Human  Resource  Strategy  for  the  judiciary  was  adopted  but  the  situation 
remains  a  challenge  for  Romania  in  terms  of  the  budgetary  costs  and  in  providing 
qualified personnel and support infrastructure. Despite these difficulties, some steps 
have been taken as regards the staffing situation in courts and prosecutors' offices at 
local  level,  however  further  improvements  are  needed.  The  Superior  Council  of 
Magistracy  (SCM)  has  intensified  judicial  inspections  to  improve  the  quality  of 
justice  notably  with  respect  to  ensuring  uniform  application  and  consistency  across 
the  court  system.  Appointment  procedures  and  new  competitions  have  been 
undertaken  in  line  with  the  objectives  set  to  provide  for  objectivity  and  high 
qualification.  Nevertheless,  the  SCM  must  intensify  its  activity  so  as  to  ensure  an 
efficient and flexible human resource policy. The impact of the new strategy cannot 
yet be fully assessed but increased awareness and better anticipation of problems can 
already be seen.  

Staffing constraints have been sharpened by the recent decisions of the SCM to alter 
the  rules  on  secondments  which  in  effect  prevent  the  seconding  institution  to 
terminate  the  secondment  of  the  judges  or  prosecutors  concerned  even  if  it  faces  a 
severe  staffing  problem.  In  addition  the  limited  managerial  possibilities  of  the 
General  Prosecutor's  Office  with  respect  to  promotion,  disciplinary  measures  or 
transfer  of  staff  render  the  restructuring  of  the  prosecution  service  particularly 
difficult.  Increased  cooperation  from  the  SCM  is  needed  to  re-organise  the 
Prosecution Office effectively.  

Unification of Jurisprudence 

The  General  Prosecutor  actively  lodged  appeals  with  the  High  Court  of  Cassation 
and Justice (HCCJ) challenging conflicting jurisprudence which have contributed to 
more uniform jurisprudence. The number of appeals in the interest of the law peaked 
in 2007 and the lower number in 2008 may indicate a certain success in unification.  

The  HCCJ  rendered  numerous  decisions  on  appeals  relating  to  the  uniform 
interpretation  and  application  of  the  law  across  the  court  system.  However,  the 
cumbersome  and  questionable  procedure  of  two-thirds  of  the  120  judges  having  to 
participate  to  the  decisions  and  agree  to  the  reasoning  (after  having  taken  the 
decision)  causes  delays  and  sometimes  leads  to  unclear  statements  of  reasons. 
Further efforts to unify jurisprudence, through the systematic publication of case law 
and  the  organisation  of  meetings  with  judges  of  lower  courts  were  undertaken.  An 
important step in this context will be the issuing of guidelines on corruption penalties 
promised by the HCCJ for autumn this year.  

It will be important for the executive to agree with the legislator to amend the law on 
the functioning of the Constitutional Court so as to abolish the suspension of cases 
where  the  exception  of  unconstitutionality  is  raised  by  a  defendant.  Likewise  the 
procedural excesses involving the invocation of the illegality exception, which also 
leads  to  the  suspension  of  the  case,  must  be  legally  contained.  These  issues  cause 
unacceptable delays. They should either be addressed in the upcoming discussions on 

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the  procedural  codes  or  more  immediately  by  amending  the  relevant  implementing 
rules.  

The  appointment  of  a  new  head  of  the  HCCJ  in  the  autumn  will  be  an  occasion  to 
demonstrate commitment to reform, modernise and increase the transparency of the 
judicial system.  

Fight against high level corruption 

The  Romanian  Parliament's  procedure  of  requesting  to  initiate  investigations  of 
former  ministers  appears  to  be  neither  uniform  nor  swift.  Since  the  last  report  the 
Parliament had approved the opening of investigations in four cases but refused to do 
so  in  two  other  cases.  In  one  of  these  latter  cases  the  Parliamentarian  resigned 
allowing  the  opening  of  the  criminal  investigation,  while  in  the  second  case 
Parliament found it not admissible. It is important that the Parliament shows its full 
commitment to pursuing the fight against high level corruption.  

The reappointment of the Head of the National Anticorruption Directorate (DNA) in 
February  this  year  marked  an  important  step  in  ensuring  stability  and  continuity  of 
the authorities in charge of the fight against corruption. The continued existence of a 
specialised  and  efficient  anti  corruption  framework  is  of  vital  importance  for 
Romania.  

DNA  has  maintained  its  good  track  record  of  non-partisan  investigations  into  high 
level corruption cases. 

The National Integrity Agency (ANI) 

ANI  is  now  operational  and  has  delivered  good  results  by  following  up  on 
declarations of assets of members of government, magistrates, officials with leading 
and control positions and all civil servants which will be further improved once the 
planned integrated IT system is completed. A certain preventive effect is ensured by 
the systematic follow up by ANI of all missing asset declarations via administrative 
fines and the possibility of subsequent court cases. These ex officio investigations by 
ANI  are  commendable.  However,  it  will  only  be  possible  to  fully  assess  the  actual 
the  first  cases  regarding  unjustified  wealth, 
impact  of  ANI's  work  once 
incompatibilities  or  conflict  of  interests,  which  are  still  pending  in  the  relevant 
judicial or disciplinary bodies, will be decided upon. Finally, ANI and the National 
Integrity Council, which guarantees and controls it, should develop a stable working 
relationship built on mutual trust. 

Fight against local corruption  

By order of the General Prosecutor the different territorial prosecution offices have 
adopted  strategies  to  fight  corruption  at  local  level.  Regular  exchanges  of  best 
practice  and  prioritisation  of  vulnerable  sectors  complement  this  commendable 
initiative.  The  initiative  has  raised  awareness  in  the  regional  prosecution  offices 
concerning  low  level  corruption  which  seems  to  be  widespread  in  some  areas  of 
activity  (e.g.  in  education,  healthcare).  The  intake  of  cases  by  the  territorial 
prosecution offices is acceptable although probably not yet sufficiently based on ex 
officio, i.e. own initiative investigations. A lack of initiative in detecting corruption 
is  also  apparent  in  relation  to  local  inspectorates  of  the  healthcare  or  education 

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departments and the tax authorities, as well as other internal control bodies of public 
institutions. 

In general, more emphasis could be given to preventive initiatives such as awareness 
raising  campaigns  aimed  at  the  public  and  all  levels  of  the  administration, 
transparency  of  administrative  procedures,  enforcing  the  right  of  access  to  public 
documents,  etc.  In  certain  areas  of  activity  where  there  is  evidence  of  low  level 
corruption,  (public  procurement,  grants  and  permits,  education,  health,  etc.),  a 
structural preventive effort could yield more results in the long term than a case-by-
case approach to law enforcement. Of course both are necessary, as individual cases 
show that abuses will not be tolerated and that they will be detected. 

3. 

SAFEGUARD CLAUSES 

In  light  of  the  assessment  above,  the  question  arises  whether  the  safeguard  clause 
should  be  triggered.  In  public  discussion  of  the  CVM  there  is  often  confusion 
between the likely duration of the Mechanism and the time limited safeguard clauses 
contained in the Treaty of Accession. There is no automatic link between the CVM 
and the safeguard clauses enshrined in the accession Treaty for Romania. Safeguard 
clauses  are  a  standard  feature  included  in  accession  treaties.  The  safeguard  clauses 
were introduced to ensure the efficient functioning of the internal market and of the 
area of freedom security and justice. They can be triggered until the end of 2009 to 
allow  for  the  temporary  suspension  of  the  application  of  the  relevant  Community 
legislation if that is necessary. The Commission is of the view, based on the above 
assessment, that the conditions for invoking the safeguard clauses are not fulfilled.  

The CVM has now entered its third year. It was not introduced for a fixed period as it 
should  only  be  removed  when  all  the  benchmarks  it  set  have  been  satisfactorily 
fulfilled. It is clear that meeting the objectives set in the benchmarks is a long-term 
task: for instance, tackling the root causes of corruption will take time. The kind of 
deep seated changes that are needed can only come from within Romanian society. 
The  CVM  is  a  support  tool  in  this  endeavour;  it  is  not  an  end  in  itself  nor  can  it 
replace  commitment  that  Romanian  authorities  need  to  make  in  order  to  align  the 
judicial system and practice with general EU standards. 

4. 

CONCLUSIONS AND RECOMMENDATIONS 

Romania has taken a number of welcome steps since the Commission's 2008 report 
to  re-launch  the  reform  process:  a  new  momentum  has  been  established  which  has 
resulted  in  a  series  of  positive  steps.  However,  Romania  is  still  struggling  to 
overcome the fact that the Criminal and Civil Codes were never fully revised. This 
has led to a series of legislative amendments and numerous emergency ordinances. In 
this situation it is not surprising that the jurisprudence of the Romanian judiciary is 
contradictory, generating undue delays which, in turn, are addressed in a legislative 
patch work of emergency ordinances, implementing rules and practices. The ensuing 
complexity  is  the  result  of  a  politicised  process  and  the  broad  based  political 
consensus behind reform and the unequivocal commitment across political parties to 
ensuring real progress in the interest of the Romanian people is not yet there. There 
is  a  risk  that  an  ever  growing  web  of  legislation,  implementing  rules  and  practices 
resulting from permanent political party in-fighting may cause all concerned to lose 

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sight of the main objective, i.e. to establish an independent, stable judiciary which is 
able to detect and sanction conflicts of interests, and combat corruption effectively.  

Against this  background, the  positive results of concrete reform efforts at technical 
level  remain  fragmented,  reforms  have  not  yet  taken  firmly  root  and  shortcomings 
persist. 

In light of the above findings the Commission invites Romania to take action in the 
following areas: 

Regarding the new codes: 

•  To  carry  out  a  thorough  assessment  of  the  impact  of  the  four  codes  on  the 
functioning of the judicial system and organisation of the courts and prosecutors' 
offices and to quantify the budgetary means needed to implement them; 

•  To  carry  out  a  public  consultation  on  the  Civil  Procedure  and  the  Criminal 

Procedure Codes and to adopt them as soon as possible; 

•  To facilitate the swift entry into force of the four codes through the adoption of an 

implementing law that will render the legislative framework coherent.  

Regarding the reform of the Judiciary:  

•  To  implement  a  flexible,  priority  driven  approach  to  human  resourcing,  in  the 
short  term  by  taking  emergency  measures  such  as  transferring  vacant  posts  to 
where  they  are  needed  most  (including  transfers  between  different  court  levels); 
by transferring administrative tasks to auxiliary staff, introducing court managers; 
and  in  medium  and  long  term  by  developing  a  personnel  scheme  tailored  to  the 
needs of the judicial system by carrying out simulations and forecasts with regard 
to appointments, transfers of staff, secondments and retirements; 

•  To strengthen the transparency and accountability of the Superior Council of the 
Magistracy, including through the Council assuming its responsibility for a more 
proactive  approach  to  recruitments,  promotions,  disciplinary  measures,  transfers 
of staff and secondments, and by publishing the Council's reasoned decisions in a 
clear and accessible format. 

Regarding the unification of jurisprudence: 

•  To  provide  an  appropriate  follow  up  to  the  recommendations  of  the  working 

group on the individualisation of penalties for corruption; 

•  To  strengthen  the  role  of  the  High  Court  of  Cassation  and  Justice  in  unifying 
jurisprudence,  including  through  streamlining  the  procedure  for  appeals  in  the 
interest  of  coherent  interpretation  and  application  of  the  law  and  elaborating 
guidelines on penalties for corruption offences. 

Regarding the fight against high level corruption: 

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that 

•  To  ensure 

investigations  of 
the  procedure  for  allowing  criminal 
Parliamentarians  who  are  former  and  current  members  of  the  government  is 
applied in a uniform and swift manner by the Romanian Parliament; 

•  To monitor the efficiency of the judiciary system in trials of high level corruption 

cases; 

•  To  ensure  the  stability  of  the  legal  framework  for  the  fight  against  high  level 

corruption including in the context of the new codes; 

•  To  adopt  a  law  removing  the  suspension  of  trials  when  exceptions  of 

unconstitutionality are raised. 

Regarding the activities of the National Integrity Agency: 

•  To  continue 

to  build  upon 

the 

track  record  on  verification  of  assets, 

incompatibilities and conflict of interest; 

•  To ensure timely follow up by judicial and disciplinary bodies to cases submitted 
by  ANI  concerning  unjustified  wealth,  incompatibilities  and  the  conflict  of 
interest. 

Regarding the fight against corruption at the local level: 

•  To  improve  the  coordination  of  the  National  Anticorruption  Strategy  in  order  to 
allow  better  identification  of  vulnerable  spots  and  risk  areas  so  as  to  develop 
prioritized mitigation strategies at all levels; 

•  To continue the implementation of local strategies developed by the prosecution, 

adapted to local needs and increase their effectiveness; 

•  To  step  up  preventive  measures  against  corruption  in  vulnerable  sectors  in 

coordination with local and central bodies. 

The  Commission  calls  on  Romania  to  move  on  with  its  reform  process  and  to 
implement  the  recommendations  it  has  made.  The  Commission  will  support  and 
monitor progress on this basis next year. Continuous pressure for delivery is needed 
and  the  Commission  also  invites  the  other  Member  States  to  continue  assisting 
Romania and help delivering progress. For its part the Commission will continue to 
support Romania's efforts through political and technical dialogue and the provision 
of appropriate expertise, where necessary. 

Outlook: 

This  report  demonstrates  that  important  reform  proposals  have  been  tabled  by  the 
government  and  that  the  positive  track  record  of  the  prosecution  is  starting  to  be 
complemented  by  action  of  the  judiciary.  Romania  has  regained  its  reform 
momentum,  building  further  upon  achievements  that  were  already  reflected  in  the 
July  2008  report  of  the  Commission.  However,  in  order  for  Romania  to  be  able  to 
demonstrate sustained progress, the judicial reform process should not be politicised. 
A  consensus  must  be  forged  by  all  actors  to  allow  the  judicial  system  to  work 
independently  so  that  non-partisan  investigations  into  corruption  lead  to  swift  and 

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effective decisions. In the view of the Commission, the Mechanism acts as a support 
tool which needs to be maintained until these reforms are achieved. The Commission 
will reassess further progress in summer 2010. 

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