Cause and Effect in European Politics and Law

The CVM Could Be a Base for a Common European Rule of Law Mechanism

Adelina Marini, November 13, 2013

On November 21 and 22, in Brussels, a special conference will take place about justice, which will be another episode of the public discussion of five papers of the European Commission related to the common European justice space. Under number four is the paper about the creation of a common European mechanism for protection of the rule of law which the Commission is working hard on and is to come up with a communication. European Commission Vice President Viviane Reding, who is responsible for justice and fundamental rights, outlined the main guidelines in September. The main argument behind the idea is that there is a need to enhance the foundations which the European Union is built upon, which are precisely the respect for the Union's fundamental values, the rule of law and democracy.

"Recently there have been threats to the legal and democratic fabric in some of the European Union’s Member States. This confirms that in our EU institutional arrangements, a better developed set of instruments is needed, going beyond the alternatives of the 'soft power' of political persuasion and the 'nuclear option' of Article 7 TEU", says the discussion paper on the future rule of law mechanism. The European Commission is collecting opinions on it which can be sent only online. euinside is also collecting opinions on the matter. In an interview with this website the former minister of justice of Romania and now member of the European Parliament from the EPP group, Monica Macovei, said she thought it would be best to simplify the procedure for triggering Article 7 of the Treaty of the EU if such a mechanism is to have an impact. And on the occasion of Bulgaria and Romania, who already have a mechanism which to some extent covers the rule of law in these two countries, Ms Macovei firmly rejected the option of a merger of the two mechanisms.

Monica Macovei is also a rapporteur in the European Parliament on the absorption of pre-accession funds to finance judiciary reforms, fight against corruption and organised crime in the candidate countries. A shadow rapporteur on the matter is Ivailo Kalfin, a Bulgarian MEP from the Socialists&Democrats group, who was a deputy prime minister and minister of foreign affairs when the Cooperation and Verification Mechanism (CVM) was developed which Bulgaria and Romania joined the EU with on January 1st 2007. In an interview with this website Mr Kalfin said that a future mechanism should take into account the diversity of judicial systems in the member states. Initially, its goal should be to give publicity to the problems it detects and to create incentives for the countries that lag behind on the indicators it will contain.

Ivailo Kalfin made a connection between Viviane Reding's intentions for the establishment of a rule of law mechanism and the proposed earlier this year justice scoreboard. In his words, as the data in the scoreboard were collected from various sources this caused significant problems. That is why the Commission wants to come up with a methodology of its own. He, though, firmly rejected the option as a sanction to be applied Article 7 of TEU. "This is a very extreme measure and we should not play with it", he added. Unlike his Romanian counterpart, Ivailo Kalfin supported entirely the idea for a connection between the CVM and the future rule of law mechanism. "It is absolutely possible to find a connection", he said, because if the EU has any experience, no matter if good or bad, from the application of such systems it is precisely the mechanism for Romania and Bulgaria.

Those, in his words, are the only existing practises in the EU to monitor and assess in some way the judiciary system of a country. The most normal thing is such a mechanism to spread over all the member states, but only after all the lessons are learnt from it, Mr Kalfin warned. Although there are in the CVM good benchmarks that can be used in the entire EU, like speed of court rulings, efficiency of the court rulings, work of the judiciary institutions, etc, which practically are covered by the justice scoreboard presented by the Commission in the spring, after all the CVM have long ceased doing the work it was meant to, the Bulgarian MEP said. That is why it should be removed for Bulgaria and Romania. Various governments got used to get negative results that lead to short articles in media, but not to continuation of the reforms.

But if the mechanism were a common European one, based on rules that apply to everyone, including the new member states, then it would be efficient. This is very important from the perspective of the enlargement process where the approach has been changed as part of learning the lessons from previous enlargements. Currently, all countries from the enlargement process the Commission is negotiating with begin the negotiations from the toughest chapters - 23 and 24. This, according to Ivailo Kalfin, ensures a sufficiently long period of time, during which the EU can use all its tools to exert control and influence for a change of the systems in the candidate countries. "This period for political pressure on behalf of the European institutions, is transferred to before not after the membership", he said.

Ivailo Kalfin is a shadow rapporteur on the financing of judiciary reforms in the enlargement process. Monica Macovei, the main rapporteur, recalls in her report that the fight against corruption and organised crime is one of the most important priorities for every candidate country or potential candidates. The report notes that on average only 3.13% of the total pre-accession aid package of the EU for the period 2007-2013 were directed to justice, 0.52% to fight corruption and some 16.29% to enhance the principles of the rule of law. Other interesting facts in the report are that only two countries from the process - Croatia and Turkey (Croatia now is a member of the EU) - co-finance their projects while, for instance, all projects in Serbia are entirely financed with EU pre-accession assistance.

Monica Macovei believes that co-financing of projects in the area of the judiciary and the fight against corruption leads to a higher degree of ownership on behalf of the beneficiaries and calls on the Commission to increase the number of projects co-financed by national institutions. Ivailo Kalfin points out, however, that the conversation should not focus only on the funds because their efficiency should be viewed in a broader context. In the numbers Ms Macovei presents are not included missions like the civil EU mission EULEX in Kosovo, which is entirely aimed at reforming the police and judiciary system of the youngest Balkan state. Besides, beyond the directly targeted funds there are instruments that assist reforms in the area of justice in the candidate countries, for instance the money for regional development which include many public procurements. And public procurements, Ivailo Kalfin says, are part of the existing judiciary, public administration and the fight against corruption.

Something which Bulgaria knows very well because the public procurement emerged as a key focus in the Control and Verification Mechanism as well. There should be more measurable criteria for the judiciary reforms, Ivailo Kalfin believes, beyond the simple reporting on how much money was absorbed. A change of a law in itself does not lead to a more efficient judiciary, he said, recalling the Bulgarian experience in that sense.

The task the European Commission has is a very difficult one, as MEP Ivailo Kalfin admits. So far the EU has been working piecemeal by addressing specific problems. The justice scoreboard was established entirely in the context of the European semester as yet another tool to improve the conditions for economic growth. The CVM was also established in an attempt to resolve a specific problem. But after the experience with Romania and Hungary it became clear that more is needed.