Europeanization and Effective Democracy in Romania and Bulgaria

by Mihaela Racovita,

The drive towards Europe has been part of Romanian and Bulgarian political agenda, the syncope of communism apart, since the early days of state building and nation-building in the nineteenth century. This “’geocultural Bovarism,’ a disposition to leap frog” into Europe, was motivated by the “fear … that the country would fall right off the edge into another continent altogether” (Judt 2001, 10). Post-1989 however, these aspirations did not automatically translate into ability to change and conform to European standards. The road to EU membership was rocky for both Romania and Bulgaria. Political instability and lack of political will, despite public consensus across party lines over EU accession, led to relative slower economic and political reforms and poorer record of acquis implementation (Dimitrova and Dragneva 2001; Phinnemore 2006). The two neighboring countries made all too often the headlines in Western media not because of their Europeanness but because of corruption. The Telegraph called Sofia “Europe’s corruption capital” (Freeman 2008), and the New York Times wrote that “Romania defends record on corruption” (Dempsey 2008). As their notoriety as corruption heavens increased, so did the scrutiny of the European Union as part of the integration process. Since mid-1990s, the European Commission annual reports repeatedly pointed at the inefficiency and lack of will of national actors, spread across branches of power, to curb corruption.

By 2007, lack of progress in addressing high level corruption threatened to derail Romania and Bulgaria’s bid for EU membership. This article relies upon the theoretical framework provided by literature on Europeanization to examine the pre-accession impact of EU political conditionality upon effective democracy by adjusting readings of rule of law, transparency, quality of bureaucracy, government stability with corruption. Among Central and Eastern European (CEE) candidate countries, Romania and Bulgaria registered the slowest progress in terms of transparency, accountability and rule enforcement. This article argues that successive government tactics of window dressing and backtracking and reluctance by national political elite to implement reforms are responsible for delaying and sometime neutralizing Enlargement-led Europeanization upon the quality of democracy in these countries. This article reviews the track of EU political conditionality from the signing of the Europe Agreements in 1993 to their accession, investigates the variation of the corruption trends between 1990 and 2007, analyzes the problems posed by corruption at the micro level and proposes some explanations. The findings show that public perception of corruption and levels of effective have changed little between 1993 and 2007 despite EU political conditionality, European Commission monitoring system through annual country reports, roadmaps and regular feedback.

Europeanization and Domestic Change
Over time, theoretical and methodological approaches of the ever increasing field of Europeanization have diversified, from macro to micro analysis and from case studies to cross country studies (Cowles et. al 2001; Featherstone and Radaelli 2003; Borzel 2005). Europeanization, understood here as “processes of (a) construction (b) diffusion and (c) institutionalization of formal and informal rules, procedures, policy paradigms, styles, ‘ways of doing things’ and shared beliefs and norms which are first defined and consolidated in the EU policy process and then incorporated in the logic of domestic (national and subnational) discourse, identities, political structures and public policies” (Radaelli 2003), has been since the early days of post-communist transition the key variable in determining domestic reform in CEE. Scholars are by and large in agreement that through the policy of conditionality (reforms in return for funds and membership) the EU has been able to influence domestic change (Grabbe 2006). Theoretically, the “external incentive model (Schimmelfenning and Sedelmeier 2004)” (which was EU driven) has proven more useful in explaining the EU’s ability to influence domestic change and rule adoption than models of socialization and/or lesson-drawing, which are CEE driven (Borzel and Rise 2000).

Enlargement-led Europeanization happened through the policy of conditionality developed by the European Councils of Copenhagen and Madrid and enforced in practice through the Commission’s Annual Reports and the screening processes. In time, the Commission expanded the areas monitored as part of the rule of law dimension, including corruption and judicial reform. Through ‘active’ (i.e. conditionality) and ‘passive’ (i.e. membership) leverage (Vachudva 2005), the EU directly influenced changes in CEE domestic politics due to the speed and breath of measures it required and the willingness of candidate countries to comply (i.e. Grabbe 2001; Dimitrova 2002; Papadimitriou and Phinnemore 2004). However, the EU impact was neither continuous nor definitive. While the EU did shape, direct and occasionally determine change, the CEECs were not passive recipients of Brussels rules and regulations (Vachudova 2005; Jacoby 2004; Hughes et. al 2004). Cross-country and cross-policy studies (e.g. Schimmenfenning et al. 2003; Schimmenfenning and Sedelmeier 2004; Borzel 2005) have found that during pre-accession the Europeanization of CEE was sensitive to similar variables as in the case of old member states plus variables specific to post-communist politics (i.e. weak institutions, political fragmentation and instability, central planning). Meanwhile, the adoption costs and veto players only explained variation in the timing of rule adoption (Schimmelfenning and Sedelmeier 2005). The EU strategy towards Romania and Bulgaria was characterized by a mix of threats and rewards, mediating pressure to reform through the provision of financial assistance and the prospect of membership per se (Spendzharova 2003). In these two countries, the EU ability to influence domestic reforms was hampered by the evolutionary and contested nature of EU conditionality as well as the considerable EU discretion in its implementation (Papadimitrou and Gateva 2009).

In Romania and Bulgaria implementation in particular was hindered by political instability, high level of politicization of the judiciary as well as the economic sector and the presence of organized crime. The level of implementation is dependent upon “the degree of ambiguity and the level of conflict related to the decision that is supposed to be implemented (Sverdrup 2007, 208).” Some scholars have argued that implementation of the acquis prior to accession has been a question of bureaucratic problems rather than political veto-maneuvers (Hille and Knill 2006). Other cross-country studies show that key to successful political conditionality were high EU credibility and low government adoption costs (Schimmelfenning et al, 2003) as adoption costs “increase the more EU conditions negatively affect […] the government’s domestic power base” (Schimmlefenning and Sedelmeier 2005, 29).

While Enlargement-led Europeanization has promoted the democratic and liberal elements of government (Vachudova 2005), the EU ability “to penetrate domestic institutions is not perfect, universal or constant,” as “adaptations reflect variations in European pressure as well as well as domestic motivations and abilities to adapt” (Olsen 2002, 356). In Romania and Bulgaria the impact of Europeanization was truncated by corruption, traffic of influence and the survival of organized crime networks. Since the Copenhagen criteria mentioned rule of law, transparency and separation of powers and given corruption ability to distort them (corruption in legislative bodies reduces accountability and representation; corruption in the judiciary suspends the rule of law; corruption in the public administration results in unequal provision of services) corruption became subjected to EU monitoring mechanisms. Romania and Bulgarian country reports increasingly pointed out lack of progress in addressing high level of corruption as well as lack of political will.

For the purpose of this article, this article operates with a definition of corruption as “any conduct or behaviour in relation to persons entrusted with responsibilities in public office which violates their duties as public officials and which is aimed at obtaining undue gratification of any kind for themselves or for others” (PMG 2003). In CEE, governmental corruption is a protracted problem, present during communism, when the “communist autocracy was tempered by corruption” (Levin and Satarov 2000), and continuing after 1989 because of the “moral chaos” and opportunities for corruption created by privatization and transition more generally (Campos and Fidrmuc 2003). This article investigates the impact of corruption and deficiencies in government accountability on the quality of democracy and operates with a concept of ‘effective’ versus ‘formal’ democracy. The spectrum of democratic definitions expands, throughout literature, from minimalist – based on a “procedural minimum” that features free and fair elections, universal suffrage, and basic civic and political freedoms (Collier and Levitsky 1997), to maximal ones (including bureaucratic quality, government accountability, etc.). This article operates with the following definition of effective democracy: a system where “democratic practices have spread throughout society” and are free of “patrimonialism and clientelism” which “eat away at democratic authority” (Heller 2000, 488).

Model of Analysis
Operating with the assumption that “hidden” (outside overt electoral fraud picked up by other indices) and widespread corruption distort the traditional readings of democracy, this article follows six determinants of effective democracy: political competitiveness, quality bureaucracy, low level of corruption, high level corruption, law and order, democratic accountability and government stability. The resulting patterns will also reflect the extent of the impact of Europeanization in time.

The database concerning EU conditionality and the measures implemented by states is largely based on the European Commission’s country reports, starting in 1999, the opening of the negotiations for EU accession, and ending in 2007, the year of Romanian and Bulgarian EU accession. Additionally, the paper relied upon Euractiv, the Europa database, mainstream Romanian and Bulgarian written press as well as international press reports and analysis. Secondly, the data for the corruption variables is largely based on the PRS International Country Risk data (PRS 2007), specifically, on the weighted variables from the Political Risk index. These are: “government stability” (ranging from 0 = ‘very high risk’ to 12 = ‘very low risk’), “corruption,” “law and order,” “democratic accountability” (for all three 0 = lowest quality to 6 = ‘highest quality’), and “quality of bureaucracy” (where 0 = lowest quality and 4 = highest quality).

The first variable of “elite corruption” looks specifically at “excessive patronage, nepotism, job reservations, ‘favor-for-favors’, secret party funding, and suspiciously close ties between politics and business” (The PRS Group 2007). However, as scholars have argued that the PRS-ICRG index of corruption fails to capture structural or endemic corruption (Linder and Santiso 2002) and in order to increase the validity of the findings, this study also examines two other indices of corruption: the CPI (the Corruption Perception Index, developed by Transparency International which is designed to account for small level corruption) and “control of corruption” indicator (devised by Worldwide Governance Indicators). Besides the supply-demand sides of corruption, there is also the problem of the lack of enforcement of existing legislation (failure to apply the norms and mechanisms set out by the formal layer of democracy). As Mishler and Rose (2005), and Rose and Shin (2001) argue, the existence of corruption within a system and the inherent violations of the rule of law lowers the “standard of political performance” of a regime. The stability of the regime, defined as “the government’s ability to carry out its declared program(s), and its ability to stay in office” (PRS Group 2007) can also impact turnout, since is often linked to corruption scandals of politicians which caused resignation of government officials (destabilizing the cabinet). Lambsdorff (2003, 234) further argues that “a strive for corrupt income among politicians is commonly in contrast to the declared program,” which in effect “reduces popular support and threatens the ability to stay in office.”

The impact of corruption at the level of the bureaucratic apparatus and its subsequent impact on voter turnout, a fourth variable is introduced: ‘quality of bureaucracy.’ Functioning with the notion of a multi-layered democratic government, this variable impacts upon the quality of democracy in that it replaces regular networks based on kinship with an efficient and meritocratic form of organization (Etzioni-Halevy 1983). Although Downs (1965) and other scholars of bureaucratization emphasize the pitfalls of over-development of bureaucracy and its potential for degeneration, this investigation is largely based on the initial stage of bureaucratization in CEE, and deals with the problems of dysfunctional/incomplete expansion rather than excessive growth. Thus, it looks at the existence of meritocratic appointment (emphasized by Weber for its “egalitarian potential”), bureaucratic efficiency (defined by citizen satisfaction), and low level of corruption. Since the PRS ratings are monthly this article operates with an annual score representing the average of 3 months: February, June and November (chosen to minimize the impact of disturbances on the ratings: end of the fiscal year, holiday time, etc.).

Corruption trends from 1993 to 2007
Romanian and Bulgarian post-communist politics has been plagued by high level of corruption largely due to opaque privatization procedures, rampant petty corruption, excessive hurdles to entrepreneurship, perceived lack of political will to address corruption “at the top”. The ability of previous networks of influence (be it party, secret police but also informal practices of traffic of influence diffused throughout social structures) to recycle themselves and adapt to the new political and economic environments have contributed to the politicization of public institutions, privatization of public interests and functions, and subordination of the judiciary to leading political and economic interests. This was arguably due to the “superimposition of communism on traditional rural societies, which led to neotraditionalist societies organized around status (“status societies”) and governed more by unwritten rules than by formal laws” (Mungiu-Pippidi 2003, 82).

In Bulgaria, corruption has reached the status of “pervasive” or endemic corruption (see below), that manifests itself both in a large degree of state capture by other interests, as well as societal corruption (from small bureaucrats to doctors, to policemen). The TI score of corruption shows that public perceptions are hovering around 2. As the adjusted scale is from 0 (worst corruption) to 6 (no corruption), the value of 2 and below demonstrates the poor record Bulgaria has maintained over the years in fighting corruption. The incidence of corruption and the extensiveness of informal networks, based on paternalism and clientelism, are legacies of a past where product scarcity made survival dependent upon informal networks. The corrupt character of national elites in Bulgaria has expanded in time, to the point that “now it is taken as a given” (Krastev 2002, 49).

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Figure 1: Corruption Levels in Bulgaria 1990-2007

Public perceptions of widespread corruption are furthered by the failure of the judiciary to prosecute cases of high corruption, and by the often blatant corrupt behavior of some of its ministers (Fish and Brooks 2000, 63). By 2002, none of the investigations initiated by the state prosecutor’s office into the one-hundred largest privatization deals involving most leading political figures was completed: “The evidence winds up not in court but in the media. The result is not the triumph of the rule of law, but a state of total insecurity and the use of the prosecutor’s office as an instrument of political pressure (Krastev 2002).

Between 1990 and 1997, corruption became part of a semi-legal transition to democracy and a market economy where self-serving, anti-social behavior was directed toward the state itself, undermining trust in public institutions. In Bulgaria, corrupt schemes included but were not limited to the draining and subsequent collapse of state and commercial banks (a specific form of “privatization” involving open plunder with the tacit participation of state officials), “entry-exit” economy (a corruption scheme where the profitable activities of state-owned enterprises such as supply of raw materials and machines, realization of the production are taken over by private companies, while the losses are covered by the state budget), participation of public officials in smuggling schemes (drugs, weapons, people, goods), financing of political parties and election campaigns (anonymous contributions in return for immunity), misuse of licensing and permits, and lack of transparency of public procurements (Bulgarian Working Group 2001).

The 1997 elections in Bulgaria followed the far reaching economic crisis, and brought a centre right government with a reformist agenda. However early steps to introduce good governance mechanisms (enacting several anti-crime and corruption laws and amending the Privatization Act to improve transparency) enhancing institutional efficiency and transparency diluted in a cloud of corruption scandals by the end of the Kostov’s government mandate. The 2001 elections were won by the newly established National Movement Simeon II on a predominantly anti-corruption electoral platform. By 2005 this government was also embroiled in several corruption scandals (among which the less than transparent privatization of Bulgartabac) and despite successfully concluding the EU chapter negotiations, it was penalized by the electorate. As successive governments promised change, achieved little and by the end of their mandate had more to show in terms of corruption scandals that anti-corruption measures, the average Bulgarian seems to have given up on the ability of the politicians to deliver and doubts there is political will to address corruption. Low trust in political elites translated in low levels of trust in national political institutions which ranked constantly well below the EU average and decreased constantly. By 2007, levels of trust registered the lowest score since Bulgaria’s inclusion in Eurobarometer surveys: trust in political parties is expressed by 7% of the population, in national parliament by 11% (down 3 points from the previous year) and in the government by 16% (Eurobarometer 68 2007).

In Romania, elite change began with a preemptive coup led by actors within the communist party. After the first election in 1990, as power remained concentrated in the state and with the former communist elite who re-organized itself under a different political umbrella, turnover of elite was restricted to a few executive positions (Higley et al. 1998). Since corruption was linked to the perpetuation of former party and secret police officers in the state structures after 1989, the screening of elected and appointed high level officials was linked with the anti-corruption reform agenda for certain political parties and civil society organizations. In 1999, the law 181/1999 provided for the creation of an institution (CNSAS) responsible for conducting such screening process was watered down and contained no provision for lustration that it had little impact upon the political elite. Like in Bulgaria, by 2000 electoral campaigns were fought and won on anti-corruption tickets only to disappoint an increasingly despondent electorate. In the few cases where prosecution of high level officials (ministers, former ministers or former prime ministers) for corruption, bribery, abuse of public office or traffic of influence got under way, they were repeatedly rebuffed by parliament who refused to strip them of parliamentary immunity.

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Figure 2: Corruption Levels in Romania 1990 – 2007

Since 1993 (signing of the Europe Agreements), and especially since 1999 (opening of accession negotiations), this muddy, politically and economically clientelistic environment, where social norms outmaneuvered legal constraints, cohabited with the process of EU accession. Given the public support for European integration (the 1996 Eurobarometer registered 97% support among average Romanians and since then support among both Romanians and Bulgarians has averaged between 60-70%), it seems that for average Romanians and Bulgarians Europeanization during pre-accession was both a promise for economic prosperity but also for good governance. Meanwhile, in response to Brussels demands or criticisms, reactions from national establishments to EU criticism were reactive rather than preemptive. When reform moved ahead too quickly or too far one can observe either legislative backtracking through post-ante amendments or foot-dragging in implementation.

EU Conditionality and Domestic Change
Like all Europe Agreements, Romania’s and Bulgaria’s conditioned the relationship between the Community and the candidate countries upon political developments such as consolidating its democracy by setting up “institutions suitable to make the association effective” (European Commission 1994, 184). Between 1993 and 1998 monitoring of political reforms was done through political task forces who provided regular feedback of reforms. Despite some political and economic reforms, by 1997 the Opinion on Romania/Bulgaria’s Application for membership of the European Union found that the countries were unable “to assume the obligations of membership in the medium term” (European Commission, 1997, 184). For example, the Opinion stated that “Romania had neither transposed nor taken on the essential elements of the acquis,” and still needed “considerable efforts in justice and home affairs” (among others) and “substantial administrative reform” (EU Commission 1997, 114).

Since 1998, monitoring was done through the Commission Annual Reports and chapter negotiations. Yet despite the fast pace of negotiations and chapter closings (all of them occurring in the time span on 2003-2004) the slow pace of judicial reforms and lack of results in the fight against corruption continued. Frustration of EU officials translated into the freezing of the negotiations on the chapter for justice and home affairs with Bulgaria in the Spring of 2003 until progress was shown by the government” (European Commission 1997). This arrived in the form of amendments speeding up legislative adoption. While criticized by some scholars for “significantly limiting judicial independence” (Smilov 2006, 313), the move did facilitate the resuming of negotiations.

In response to Brussels criticisms, the two countries opted for different strategies though aiming for similar outcomes: protecting the status quo while simulating adoption of EU standards. In Bulgaria legislative reform advanced in small installments followed by amendments to improve the scope of reform or its transparency. In Romania projects of law adopted to meet EU standards were soon amended under pretext of improving efficiency while in fact restraining the scope and power of created bodies to tackle corruption. In Bulgaria several laws were enacted ensuring the independence of the judiciary or strategies of tackling corruption (2002 and 2004) and organized crime, such as the “National strategy for combating organized crime” (1998). Though it did not seek to amend or dilute the legislation through formal means to the same extent as in Romania (this happened to a certain degree with the amendment to the Penal Procedure Code in 2005 that limited the possibilities for police investigations and was subsequently subject to criticisms in the EC 2005 country report), it made little to no progress in implementing the legislative reforms. Thus, the gap widened between formal rules and the situation on the ground or in other words, between the real country and the legal country. This lack of progress in implementation did not escape the European Commission which commented in its 2004 report that “political influence still interfered” in judicial procedures and mentioned delayed or poor implementation yearly (see below) but these comments did not prevent the amendment to the Penal Procedure Code in 2005.

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Figure 3: Timeline of Criticisms of lack of reform implementation in Bulgaria 1999- 2007

A sharp increase in the number of criticisms of the lack of implementation occurred in 2000 and then in 2005-2006 periods. The first spike in 2000 is due to EC frustrations over the delays in implementing the amendments to the Criminal Procedure Code, which were adopted in 1998 and 1999 respectively. The EC pressed for the amendments to be enforced so that to minimize the possibilities for adjourning cases, facilitating quicker proceedings, and strengthening the independence of magistrates (EC 2000 country report). Criticisms also involved the failure to increase the capacity and staff of courts to effectively deal with the number of cases, provide for physical security or the availability of legal aid (EC 2000 country report). By 2001, the Bulgarian Parliament passed the statute of the State Administrative Commission, creating a framework, but continuing to drag its feet in allocating sufficient resources for its functioning (EC 2001 country report). The second spike of intense criticisms recorded for the period of 2005-2006 corresponds to the series of mafia murders in central Sofia. Most recent victims included Bulgaria’s top banker, the owner of a first division football team and a leading customs official. Klaus Jensen, a EU-mandated investigator into the mafia killings and the ability of Bulgarian justice to tackle them declared that “crime busting efforts in Bulgaria were a total mess” and warned that contract killings would spread to other EU countries, making them the new “turf” (Smith 2006). Despite EU pressure and criticisms, most of these assassinations remain unsolved.

While Romania also suffers from lack of implementation, it does not receive the same volume of yearly alerts on the lack of concrete results as Bulgaria, because it compensates through a different strategy. The judicial reform follows a one step forward-two steps backwards track. Signs of life in this area trigger almost immediate reactions of raising barriers to protect the status quo. For instance, immediately after adopting the Anti-Corruption Strategy and creating the National Anti-corruption Directorate (DNA) in 2005, the Constitutional Court ruled that only the General Prosecutor may investigate members of Parliament (EC 2005 country report). This was followed by wide reshuffling, with the Director and all three Deputy Directors of the Directorate-General for Protection and Anti-Corruption (DGPA) dismissed (EC 2005 country report). Similarly, after the transformation of PNA in the National Anti-Corruption Department (DNA) in 2006 through a government ordinance, and its passing under the authority of the National Prosecutor Office, which effectively meant that “deputies and senators could now be investigated,” the government ordinance was rejected by the Senate in February 2006. These were only the latest movements in the chess game which was even older. The transformation of the PNA into the DNA was triggered by a decision of the Constitutional Court which did not allow PNA to investigate members of the Parliament. This move had allowed the reopening of high corruption cases, such as “the Zambaccian file” in which Adrian Nastase was prosecuted on charges of bribery and corruption, and where the Minister of Economy, Dan Ioan Popescu was tried in a file involving the national electricity provider. Though Romania was placed under a monitoring mechanism in 2007 and the introduction of a judicial safeguard clause in the Accession Treaty, the Constitutional Court persisted in protecting high level officials from prosecution. In 2007, the Constitutional Court established in relation with another Nastase centered investigation (the ‘Tamara Affair’), that former members of government or parliament cannot be investigated as average citizens; their prosecution requires approval by the president and parliament. These types of practices show that the national political elite has learnt to protect itself from the law through the law.

In Romania, the trends regarding legislative reform and institutional creation in the areas of judicial, administrative and anti-corruption reform between 1999 and 2007 shows that backtracking (i.e. amendments that dilute the reforms, annulment of government ordinances by Parliament, or any other measure with the purpose of diminishing the capacity and scope of reforms) occurred in 49 of the 61 cases of legislative adoption or institutional creation.

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Figure 4: Strategy of Reform Backtracking in Romania

Thus backtracking occurred in 82% of the reform initiatives in Romania, with only 18% keeping their ground (see above), these being more benign creations, such as the mediation council established on 2006 through the Law of Dispute Mediation that provided an alternative to civil courts for settling claims or disputes.

Corruption does not only interfere with due process through legislative means, but also through political pressures. A 2004 survey showed that a majority of Romanian judges has experienced some form of political pressure in the exercise of their function (2004 country report). Despite changes to the law introduced following comments in country reports, in Romania, as in Bulgaria, the appointment of judges and their independence remained flawed throughout 2000-2007. In Romania, political interference was especially visible in those cases where the Parliament proceeded to stop or impede investigations of its members by refusing to strip members of parliament under investigation of their parliamentary immunity. In 2006 the Romanian Parliament rejected a request made by the DNA to search the property of a Member of Parliament in a high corruption case (mentioned in the 2006 country report by the European Commission). The Parliament was also responsible for attempting to reduce the effectiveness of the newly created National Integrity Agency (ANI, responsible for the verification of public officials declaration of assets) by modifying the nomination procedure of its director as well as the nomination of the Prosecutor General to make them more politically dependent (2006 country report). Despite Brussels warnings of reform, the Romanian Senate impeached a month after accession the minister of justice largely credited with advancing judicial reforms, securing autonomy for prosecutors, and changes of personnel (through appointment of new, younger chief prosecutors) which led to the opening of several high profile corruption investigations (eight of which former and current ministers). Overall, many of the anti-corruption mechanisms in Romania remained subordinated to the political, acting under the auspices of a series of high status institutions.

In Bulgaria attempts by political actors to influence and perverse the course of justice are intertwined with organized crime. While in early 2000 microphones were discovered in the home of the Prosecutor General (2000 country report), contract killings remained severely under-investigated (2006 country report). In 2007, political interference in judicial investigations involved a Socialist economy and energy minister (Roumen Ovcharov) who was accused of interfering in a high-level corruption investigation to protect a friend (Burmwasser 2007). Although the Bulgarian Parliament as an institution does not practice the same level of political involvement in pushing back reforms (possibly because of a higher fractionalization of parties in Bulgarian political arena as compared to Romania), individual political parties have done their share. In 2005, the announcement by the then minister of Minister of the Economy Lidia Shuleva to sell state-owned Bulgartabac to British American Tobacco (BAT) triggered threats of motion of censure from the ethnic Turkish party (Movement for Rights and Freedoms). Given that most producers of raw tobacco are ethnic Turks who benefited from guaranteed higher minimum raw tobacco prices set by the government of which the MRF was a member, the party opposed the privatization of Bulgartabac so that to protect its electorate (Karstev 2006). While a partner in the coalition government negotiating EU’s accession, MRF has been frequently linked to corrupt business deals and accused of using political blackmail to advance private interests.

Much of existing corruption was facilitated by existing opportunities or loopholes in the legislation. The over-used practice of the executive ruling by decree, effectively by-passing parliament, not only circumvents the constitutional legislative process but also creates a reflux effect, in that many government ordinances are later rejected by parliament. In Romania successive governments repeatedly relied upon government ordinances to legislate, especially during periods of political instability such as in 2000 when only 59 of the 453 draft laws were approved by Parliament (2000 EC country report). This practice favours legislation centered upon securing and protecting group interests rather than being reform oriented. Moreover, it prevents the emergence of coherent pieces of legislation. In 2005, the EC country reports noticed that the most basic procedural principles were dispersed across several pieces of legislation making it difficult for a fair and clear application of the law. The 2006 EC report for Bulgaria pointed out that there was still no legal provision to suspend magistrates who are under internal disciplinary investigation. The 2006 Freedom House report on Bulgaria stressed that “many other opportunities for corruption remain, especially in tax collection, licensing regimes, registration of firms, and safety and other regulations, as well as in public procurement tenders” (Krastev 2006).

In response to Brussels accelerated demands and increased pressure for judicial reforms and curbing corruption, Romanian and Bulgarian governments chose different approaches. While Romanian governments opted for creating a network of institutions whose areas of responsibility overlap and confuse rather than contribute to curbing corruption, Bulgarian governments opted for development of strategies and methods. Consequently, in Romania observers may notice a flurry of institutional creation, especially designed to tackle widespread corruption. More than a third of the bodies created between 1999 and 2007 in the political realm were meant to deal with corruption, among which the National Council for Action Against Corruption and Organized Crime (1997), the Anti-Corruption Criminal Investigation and Criminology Section (1998), special Anti-corruption and Organized Crime Unit within the General Prosecutor’s office (2000), National Anti-Corruption Prosecutor’s Office (2002), the National Anti-Corruption Directorate (DNA 2002) and the Directorate General for Anti-corruption answering to the Minister of Interior (2005). While their number served to account for progress in annual reports, these institutions failed to enact concrete reform, because of their constant overlapping in functions, the absence of a clear distribution of responsibilities and the continuous reshuffling they underwent following government changes. The EU country reports show that the National Council for Action against Corruption and Organized Crime “never played its envisaged role” (1999 EC country report), while the 2001 National Anti-Corruption Prosecutor’s Office (NAPO) remained largely subordinated to the Ministry of justice, and its functions continued to be ill-defined and overlap with the other existing institutions (2001 EC country report). Effectively, these institutions served as smokescreens to hide backwards steps in enforcement of judicial reform and anti-corruption standards.

The number of agencies, bodies, institutions created with the declared purpose of fighting corruption does not translate into indictments, trials, results. Opinion polls also show that the increased quantity of anti-corruption mechanisms has done little to convince the public of improvement. Evidence also suggests that records depend upon the person in office and less upon the statute or range of activities of a particular body. The political turmoil surrounding nominations, appointments and resignations of central figures of the anti-corruption battle (from ministers of justice to chief prosecutors of the DNA or the Prosecutor General), pitting political camps against each other show that the fight against corruption remains defined by politics. The personalization of these offices also visible in the different records under different leadership also point out the weakness of the institutions.

While institution building carries little evidence of efficient anti-corruption fight providing mostly for forms without substance and an increase in public administration, it has one advantage. It provides for grander marketing strategies of reforms in Brussels. Meanwhile, the Bulgarian option for strategies and actions plans is less spectacular and more difficult to parade, reason for which it was more easily a target of non-compliance mechanism or EU criticisms. Rather than create new bodies to tackle corruption (with few exceptions, such as task forces or the national Ombudsman- European Commission), Bulgaria focused more on work strategies and agendas to tackle corruption, such as the “Action Plan for Implementation of the Strategy of Anti-Corruption” in 2002 and 2004 respectively. However whether institution building or strategy development, the perception of corruption remains largely unchanged, with the exception of the period between 1998 and 2002 possibly due to the reforms introduced by the Kostov government.

Elusive Change in Effective Democracy
During the pre-accession period, pressure exercised by the European Union as part of its conditionality mechanism was countered and even sidetracked by domestic tactics, from backtracking to smoke-screening or politicizing anti-corruption measures (i.e. national political elite has learnt to settle scores while accounting for EU reforms: the political colours of the high officials placed under investigation for corruption, traffic of influence or bribery is indirectly related to the political colour of the government in office). This translated into low levels of improvements in terms of effective democracy for both Romania and Bulgaria.

Thus, in Bulgaria the quality of effective democracy remained largely constant from 1993 to 2007. On the basis of information in each country reports, one could conclude that formal democracy (i.e. distribution of power, rule of law, free elections) improved and progress was made towards fulfilling the Copenhagen criteria. By contrast, effective democracy adjusts for corruption and measurements show a less optimistic picture. Despite EU conditionality, EC monitoring mechanism and creation of anti-corruption institutions and/or measures, little change is visible in terms of rule of law, democratic accountability, quality of bureaucracy, government stability. This shows that while EU conditionality impacted upon formal democracy, it had little traction when implementation and “soft measures’ (i.e. styles, ‘ways of doing things,’ beliefs and norms) were concerned (Grabbe 2006; Radaelli 2003).

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Figure 5: Timeline of Effective Democracy Variables for Bulgaria 1990- 2007

In certain cases, not only has the country failed to register positive change, but also some indicators of effective democracy actually displayed negative values. The low score for rule of law in Bulgaria is supported by statistics pointing to the resilience of organized crime networks and by reports of inter-clan killings, such as those in 2005 or 2007. Coupled with some of the corruption scandals in the press, this could account for some of the variation in government stability (which is defined by PRS as government unity, the legislative power and the popular support it benefits from).

Other readings remained constant, showing little change as a result of reforms initiated under the framework of Europeanization through conditionality. Thus, the variable of the quality of bureaucracy (which expresses the “strength and expertise,” the autonomy from outside pressures and meritocratic recruitment – PRS Methodology) maintains a constant, low score of 2. This happens despite the multiple legislations adopted by the Bulgarian Parliament aimed at reforming public administration such as the Law on State Administration (1999), the Civil Service Law (1999), the Statute for Civil Servants (2000), the Code of Ethics for Civil Servants (2002), the Strategy for the Modernization of the State Administration (2002).

The variable “government stability” registers the largest variation: increasing in the period between 1998 and 2001, decreasing sharply between 2001 and 2004, and increasing progressively from 2004 onwards. These variations are due largely to the failure of the ruling coalitions to tackle the problems of corruption and organized crime and to show a significant improvement or reform in anything from public administration to rule of law. The dates for the shifts correspond to changes in government, as 1997 registered a large victory by the UDF, which enjoyed a honeymoon period only to decrease 2 years later, despite the positive progress registered in terms of European Union accession (the beginning of negotiations). The sharp decrease between 2001 and 2004 could be owed to Bulgaria’s failure to enter the European Union in 2004, together with the other 10 Central European countries, and to the internal divisions in the governing coalition.

In Romania the situation is largely similar. Although the country registers slightly more variation, especially in the middle of the 1990s (possibly because of the change in government in 1996), the improvements are only temporary, as they decline after 1998 and stabilize at low levels.

2fig6
Figure 6: Timeline of Effective Democracy Variables for Romania 1990- 2007

Both the rule of law and bureaucracy variables show a slight increase. The quality of bureaucracy registered a sudden rise in 1995 that lasted until 1998. This fluke is not the result of an effective reform plan, but a result of the initiation of a law on state bureaucracy by the Stolojan government. Observes continue to qualify the period as presenting “a highly politicized state bureaucracy,” which together with internal fighting and corruption ended the public’s hope of reform (Carothers 1997, 4). The graph confirms this reading, as it shows no change occurring after 1998, despite the flurry of administrative legislation, the creation of training for public administration or of new codes of ethics (such as the Laws on Public Administration in 2001, the Law on the Rights of civil servants in 2005). The quality of Romanian bureaucracy remains however, lower than Bulgaria’s, with the median score of 1 (Bulgaria has a constant score of 2).

The variable “rule of law” registered a two point increase from 1991 to 1998, when it declined to level 4, only to stabilize there for the period between 1998 and 2007. Many attribute the higher scores from 1991 to 1998 to a period of hope that implementation of laws and the effective tackling of corruption will occur, first with the emergence from communism and the first elections in 1992 and then with the election of the first center right president (former President Constantinescu) in 1996. If in 1997 opinion polls showed a 63% satisfaction with the anti-corruption efforts, by June 1998 only 29% of Romanian citizens still believed in it (Romanian Academic Society, 2001). This downward trend is visible with all other variables, after 1998, despite the positive steps towards EU integration. It suggest that by 1998 the average electorate did not anymore believed that change in government will equate with change in practices and that political elites regardless of party affiliation will continue corrupt practices. In other words, by 1998 the average Romanian citizen was convinced of the ability of the system to perpetuate itself and did not credit the EU with powers to reform it.

With the continuation of the old elites there was a continuation of old practices, most importantly, of high corruption. Figure 6 shows the extent of corruption in Romania, both governmental corruption (since 1997 it is below 3) and endemic, low end corruption (which is below 2). Opinion polls registered the public disappointment with the government performance: between December 1997 and June 1998 the level of approval for government policy of reducing corruption fell from 59 percent to 29 percent and finally to four percent in November 2000, which was below the 1996 approval ratings (8 percent) of the ruling Socialist government. Between 1996 and 2000, several high corruption scandals hit the media implicating several high profile politicians (i.e. the then minister of transport, current president Basescu, and the selling of the Romanian naval fleet) including president Constantinescu (i.e. the ‘Cigarette Affairs’ I and II). While some have blamed the opposition (particularly the social-democrats) for politicizing dubious business deals and stressing political links when not there, these nuances were lost for the general public who registered the key information: high level politicians use their public office and state resources to secure private gains.

The public perception of corruption (measured by the TI index) might not be a fair reflection of realities on the ground. After all, by 2007, due to EU pressure (who benefited and supported the work of certain civic organizations, the case in Romania with the Romanian Academic Society Campaign for a “Clean Parliament”) there are public declarations of assets by public officials, investigations of their fortunes when discrepancies are noticed, and even resignations of ministers accused of mismanagement of public funds, EU funds, bribery or traffic of influence. However, in time, citizens become “accustomed to being abused by their governments, with less than 1/3 looking for the means to defend their rights and dignity” (Mungiu-Pippidi 2003, 84). It is not only dissatisfaction with the political and public elites, but that the average citizen have lost the ability to believe that they can influence decision-making (Pop-Eleches 2001). Given that everyone (national media, politicians, EU officials, EU country reports, international media) points to the high levels of corruption and that the only political actor arguing occasionally that corruption levels have decreased is the government, whose ministers become embroiled in corruption scandals, it is highly unlikely that public perception can be affected.

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  • Alina Mungiu-Pippidi (chair) Hertie School of Governance
  • Larry Diamond Stanford University
  • Tom Gallagher University of Bradford
  • Alena Ledeneva University College London
  • Michael McFaul Stanford University
  • Philippe Schmitter Stanford University
  • Helen Wallace London School of Economics and Political Science

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  • George Jiglau
  • Ingi Iusmen

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