Cooperation and Verification Mechanism Reports on Bulgaria and Romania

Cooperation and Verification Mechanism Reports on Bulgaria and Romania

Why does the Commission i report on progress in judicial reform and the fight against corruption in Bulgaria and Romania?

At the accession of Bulgaria and Romania to the European Union on 1 January 2007, certain weaknesses remained in both Member States in the areas of judicial reform and the fight against corruption, and in the case of Bulgaria in the fight against organised crime. These weaknesses could prevent an effective application of EU i laws, policies and programmes, and prevent Bulgarians and Romanians from enjoying their full rights as EU citizens.

Therefore, the Commission undertook to assist Bulgaria and Romania in remedying these shortcomings and to regularly verify progress against specific benchmarks set for this purpose, through the Cooperation and Verification Mechanism (CVM). These benchmarks are interlinked and should be seen together as the expression of a long-term political commitment of the two countries to their own citizens, as well as to the other Member States. The monitoring process of the CVM, together with the opportunities provided by EU funds and the constructive engagement of the Commission and many Member States, has provided valuable support to encourage, advance and consolidate reform in Bulgaria and Romania. In January 2017 the Commission set out the remaining steps needed to achieve the CVM's objectives, providing concrete recommendations to both Member States which would allow them to fulfil the benchmarks and close the CVM process under this Commission's mandate - if completed. In its November 2017 reports, the Commission gave a first assessment on the progress made in the implementation of those recommendations.

How long will the CVM last?

The CVM will end when all of the six benchmarks applying to Bulgaria and all of the four benchmarks applying to Romania are satisfactorily met. The speed of the process will depend on how quickly Bulgaria and Romania will be able to fulfil these recommendations in an irreversible way, and on avoiding negative steps which call into question the progress made so far. In line with today's report the Commission is confident that if the current positive trend is continued then Bulgaria will be able to fulfil all the remaining recommendations and therefore expects the CVM process to be concluded before the end of this Commission's mandate. When it comes to Romania, the Commission is recommending immediate additional measures that are essential to put the reform process back on track and resume the path towards the conclusion of CVM as set out in January 2017 and therefore the Commission will continue to follow closely and will assess the situation before the end of this Commission's mandate.

Who decides when to lift the CVM?

According to the Acts of Accession, which are the legal basis for the CVM decisions, the "Commission shall inform the Council in good time before revoking the safeguard measures [the CVM], and it shall duly take into account any observations of the Council in this respect". Therefore, when the Commission considers that the benchmarks have been fully met it can conclude that it is possible to revoke the CVM.

What are the CVM benchmarks for Romania?

• - 

  Benchmark 1: Ensure a more transparent and efficient judicial process notably by enhancing the capacity and accountability of the Superior Council of Magistracy. Report and monitor the impact of the new civil and penal procedures codes.
• - 

  Benchmark 2: Establish, as foreseen, an integrity agency with responsibilities for verifying assets, incompatibilities and potential conflicts of interest, and for issuing mandatory decisions on the basis of which dissuasive sanctions can be taken.
• - 

  Benchmark 3: Building on progress already made, continue to conduct professional, non-partisan investigations into allegations of high-level corruption.
• - 

  Benchmark 4: Take further measures to prevent and fight against corruption, in particular within local government.

What are the CVM benchmarks for Bulgaria?

• - 

  Benchmark 1: Adopt constitutional amendments removing any ambiguity regarding the independence and accountability of the judicial system.
• - 

  Benchmark 2: Ensure a more transparent and efficient judicial process by adopting and implementing a new judicial system act and the new civil procedure code. Report on the impact of these new laws and of the penal and administrative procedure codes, notably on the pre-trial phase.
• - 

  Benchmark 3: Continue the reform of the judiciary in order to enhance professionalism, accountability and efficiency. Evaluate the impact of this reform and publish the results annually.
• - 

  Benchmark 4: Conduct and report on professional, non-partisan investigations into allegations of high-level corruption. Report on internal inspections of public institutions and on the publication of assets of high-level officials.
• - 

  Benchmark 5: Take further measures to prevent and fight corruption, in particular at the borders and within local government.
• - 

  Benchmark 6: Implement a strategy to fight organised crime, focussing on serious crime, money laundering as well as on the systematic confiscation of assets of criminals. Report on new and ongoing investigations, indictments and convictions in these areas.

How does the Commission report on progress in Bulgaria and Romania?

The Commission regularly assesses progress in judicial reform and the fight against corruption in Bulgaria and Romania, and in the fight against organised crime in Bulgaria. The Commission's assessments and its formal reports are based on a careful analysis and monitoring, drawing on a continuous dialogue between the Bulgarian and Romanian authorities and the Commission services. The reports also benefit from contacts with Member States, civil society, international organisations, independent experts and a variety of other sources. Each Commission report, as well as its methodology and conclusions, is subsequently discussed with the Council of Ministers and has been consistently endorsed in Council Conclusions. The Reports and methodology are also presented to the European Parliament.

What are the next steps for Romania?

The report in January 2017 identified 12 specific recommendations to be fulfilled by Romania. A first assessment of progress made was adopted in November 2017. Today's report takes stock of the steps taken by Romania since then, requiring the Commission to also look again at the basis of its overall assessment.

Over the twelve months since November 2017, Romania has taken some steps to implement the recommendations set out in the January 2017 report. However, the assessment of the January 2017 report was always conditioned on the avoidance of negative steps calling into question the progress made in the past 10 years. The entry into force of the amended Justice laws, the pressure on judicial independence in general and on the National Anti-Corruption Directorate (DNA) in particular, and other steps undermining the fight against corruption have reversed or called into question the irreversibility of progress, in particular under Benchmarks one and three. The Commission also noted broader factors beyond the CVM's scope, but clearly having an impact on the advance of judicial reform and the fight against corruption. In this respect, the report notes that free and pluralistic media play an important role in holding the actions of those in power to account, for example in bringing potential cases of corruption to light.

As a result, the 12 recommendations set out in the January 2017 report are no longer sufficient to close the CVM under this Commission's mandate - which was the orientation given by President Juncker when he took office. Today's report sets out a number of additional recommendations to put the reform process back on track. This will require the key institutions of Romania to demonstrate a strong commitment to judicial independence and the fight against corruption as indispensable cornerstones, and to restore the capacity of national checks and balances to act when there is a risk of a backwards step.

To remedy the situation the following measures are recommended:

• 1. 

  Justice laws
• - 

  Suspend immediately the implementation of the Justice laws and subsequent Emergency Ordinances.

  • - 

    Revise the Justice laws taking fully into account the recommendations under the CVM and issued by the Venice Commission and the Council of Europe's Group of States Against Corruption GRECO.
• 2. 

  Appointments/dismissals within judiciary
• - 

  Suspend immediately all ongoing appointments and dismissal procedures for senior prosecutors.
• - 

  Relaunch a process to appoint a Chief prosecutor of the DNA with proven experience in the prosecution of corruption crimes and with a clear mandate for the DNA to continue to conduct professional, independent and non-partisan investigations of corruption.
• - 

  The Superior Council of Magistracy to appoint immediately an interim team for the management of the Judicial Inspection and within three months to appoint through a competition a new management team in the Inspection.
• - 

  Respect negative opinions from the Superior Council on appointments or dismissals of prosecutors at managerial posts, until such time as a new legislative framework is in place in accordance with recommendation 1 from January 2017.
• 3. 

  Criminal Codes
• - 

  Freeze the entry into force of the changes to the Criminal Code and Criminal Procedure Code.
• - 

  Reopen the revision of the Criminal Code and Criminal Procedure Code taking fully into account the need for compatibility with EU law and international anti-corruption instruments, as well as the recommendations under the CVM and the Venice Commission opinion.

Next steps: The Commission will continue to follow closely and will assess the situation before the end of this Commission's mandate. The immediate implementation of the additional measures is essential to put the reform process back on track and resume the path towards the conclusion of the CVM as set out in the January 2017 report.

Recommendations for Romania from the January 2017 CVM Report:

• - 

  Put in place a robust and independent system of appointing top prosecutors, based on clear and transparent criteria, drawing on the support of the Venice Commission.
• - 

  Ensure that the Code of Conduct for parliamentarians now being developed in Parliament includes clear provisions on mutual respect between institutions and making clear that parliamentarians and the parliamentary process should respect the independence of the judiciary. A similar Code of Conduct could be adopted for Ministers.
• - 

  The current phase in the reform of Romania's Criminal Codes should be concluded, with Parliament taking forward its plans to adopt the amendments presented by the government in 2016 after consultation with the judicial authorities. The Minister of Justice, the Superior Council of the Magistracy and the High Court of Cassation and Justice should finalise an action plan to ensure that the new deadline for the implementation of the remaining provisions of the Code of Civil Procedures can be respected.
• - 

  In order to improve further the transparency and predictability of the legislative process, and strengthen internal safeguards in the interest of irreversibility, the Government and Parliament should ensure full transparency and take proper account of consultations with the relevant authorities and stakeholders in decision-making and legislative activity on the Criminal Code and Code for Criminal Procedures, on corruption laws, on integrity laws (incompatibilities, conflicts of interest, unjustified wealth), on the laws of justice (pertaining to the organisation of the justice system) and on the Civil Code and Code for Civil Procedures, taking inspiration from the transparency in decision-making put in place by the Government in 2016.
• - 

  The Government should put in place an appropriate Action Plan to address the issue of implementation of court decisions and application of jurisprudence of the courts by public administration, including a mechanism to provide accurate statistics to enable future monitoring. It should also develop a system of internal monitoring involving the Superior Council of the Magistracy and the Court of Auditors in order to ensure proper implementation of the Action Plan.
• - 

  The Strategic Judicial Management, i.e. the Minister of Justice, the Superior Council of the Magistracy, the High Court of Cassation and Justice and the Prosecutor-General should ensure the implementation of the Action Plan and put in place regular common public reporting on its implementation, including solutions to the issues of shortages of court clerks, excessive workload and delays in motivation of decisions.
• - 

  The new Superior Council of the Magistracy should prepare a collective programme for its mandate, including measures to promote transparency and accountability. It should include a strategy on outreach, with regular open meetings with assemblies of judges and prosecutors at all levels, as well as with civil society and professional organisations, and set up annual reporting to be discussed in courts' and prosecutors' general assemblies.
• - 

  Ensure the entry into operation of the PREVENT system. The National Integrity Agency and the National Public Procurement Agency should put in place reporting on the ex-ante checks of public procurement procedures and their follow-up, including ex post checks, as well as on cases of conflicts of interest or corruption discovered, and the organisation of public debates so that the government, local authorities, the judiciary and civil society are invited to respond.
• - 

  The Parliament should be transparent in its decision-making with regard to the follow-up to final and irrevocable decisions on incompatibilities, conflicts of interests and unjustified wealth against its members.
• - 

  Adopt objective criteria for deciding on and motivating lifting of immunity of Members of Parliament to help ensure that immunity is not used to avoid investigation and prosecution of corruption crimes. The government could also consider modifying the law to limit immunity of ministers to time in office. These steps could be assisted by the Venice Commission and GRECO. The Parliament should set up a system to report regularly on decisions taken by its Chambers on requests for lifting immunities and could organise a public debate so that the Superior Council of Magistracy and civil society can respond.
• - 

  Continue to implement the National Anti-corruption Strategy, respecting the deadlines set by the government in August 2016. The Minister of Justice should put in place a reporting system on the effective implementation of the National Anti-corruption Strategy (including statistics on integrity incidents in public administration, details of disciplinary procedures and sanctions and information on the structural measures applied in vulnerable areas).
• - 

  Ensure that the National Agency for the Management of Seized Assets is fully and effectively operational so that it can issue a first annual report with reliable statistical information on confiscation of criminal assets. The Agency should put in place a system to report regularly on development of administrative capacity, results in confiscation and managing criminal assets.

What are the next steps for Bulgaria?

The report in January 2017 identified 17 specific recommendations to be fulfilled. A first assessment of progress on the 17 recommendations was adopted in November 2017. Today's report takes stock of the progress made since November 2017.

Over the twelve months since November 2017, Bulgaria has continued its efforts to implement the recommendations set out in the January 2017 report.

In line with the assessment set out in the report adopted today, the Commission considers that several recommendations have already been implemented and a number of others are very close to implementation. On this basis, the Commission has concluded that three benchmarks out of six (benchmark 1 on judicial independence; benchmark 2 on legislative framework; and benchmark 6 on organised crime) can be considered provisionally closed. Given that in some cases developments are ongoing, continued monitoring is required to confirm this assessment. In addition, the Commission's report notes a significant deterioration in the Bulgarian media environment over recent years which risks restricting the access of the public to information and can have a negative impact on judicial independence, with targeted attacks on judges in some media. More widely, the ability of the media, as well as of civil society, to hold those exercising power to account in a pluralistic environment free from pressure is an important foundation stone to pursue the reforms covered by the CVM, as well as for better governance more generally.

Bulgaria needs to continue to develop a track record of concrete results so as to consolidate the progress made. This positive trend will need to be maintained under the CVM and will need continued monitoring by the Bulgarian authorities after the closure of the CVM. Transparent reporting by the Bulgarian authorities and public and civic scrutiny will play an important role in internalising monitoring at national level and providing the necessary safeguards to maintain the path of progress and reform.

The Commission will continue to follow progress closely and will make a further assessment on the progress made before the end of this Commission's mandate. The Commission is confident that Bulgaria will be able to fulfil all the remaining recommendations and thus expects that with this the CVM process for Bulgaria will be concluded. To meet this objective, the Commission invites Bulgaria to pursue the current positive trend towards implementation of all remaining recommendations.

Recommendations for Bulgaria from the January 2017 CVM Report:

• - 

  Ensure a transparent election for the future Supreme Judicial Council, with a public hearing in the National Assembly before the election of the members of the parliamentary quota, and giving civil society the possibility to make observations on the candidates.
• - 

  Establish a track record of transparent and merit-based appointments to high-level judicial posts, including the upcoming appointment of a new President of the Supreme Administrative Court.
• - 

  To improve the practical functioning of the Inspectorate to the Supreme Judicial Council (ISJC) and the follow-up by the Supreme Judicial Council to the inspectorate's findings, in particular on integrity issues, consider soliciting external assistance, for example from the Structural Reform Support Service and/or Council of Europe.
• - 

  Adopt amendments to the Criminal Procedure Code and the Criminal Code to improve the legal framework for the prosecution of high-level corruption and serious organised crime.
• - 

  Publish a report for public consultation detailing the progress made implementing the national judicial reform strategy and setting out the remaining steps to be taken. Establish a mechanism for continued public reporting of progress for the remaining duration of the strategy's implementation.
• - 

  Address the workload situation in the busiest courts based on the new workload standards, and agree a roadmap for the reform of the judicial map in parallel with the development of e-justice.
• - 

  Establish a roadmap for the implementation of the recommendations of the Structural Reform Support Service report concerning the reform of the Prosecutor's Office and its interactions with other institutions, including a mechanism for the reporting of progress to the wider public.
• - 

  Establish a roadmap for the implementation of the recommendations of the study, including a mechanism for the reporting of progress to the wider public.
• - 

  Adopt a new legal framework on the fight against corruption in line with the intentions set out in the anti-corruption strategy, and ensure its implementation. Set up an effective anti-corruption authority.
• - 

  Adopt and implement a reform of the law on public administration to strengthen the internal inspectorates in the public administration.
• - 

  Building on the analysis of past cases, establish a roadmap between all relevant institutions to address shortcomings in the investigation and prosecution of high-level corruption cases, including a mechanism for the reporting of progress to the wider public.
• - 

  Establish a mechanism for public reporting on progress in high-level cases which are in the public domain. General Prosecution to report - whilst respecting the presumption of innocence - on investigations and indictments. Supreme Court of Cassation and Ministry of Justice to report on convictions as well as the enforcement of sentences.
• - 

  Carry out an external review of the ex-ante checks of public procurement procedures and their follow-up, including ex post checks, as well as on cases of conflicts of interest or corruption discovered and remedial measures taken to address identified shortcomings.
• - 

  Put in place risk-based measures to address low-level corruption in high risk sectors within the public administration, taking inspiration from what has been done in the Ministry of Interior. Continue the efforts in the Ministry of Interior.
• - 

  Establish a mechanism for public reporting on the implementation of the national anti-corruption strategy covering the remaining duration of the Strategy's implementation.
• - 

  Establish a mechanism for public reporting on progress in high-level cases which are in the public domain. General Prosecution to report - whilst respecting the presumption of innocence - on investigations and indictments. Supreme Court of Cassation and Ministry of Justice to report on convictions as well as the enforcement of sentences.
• - 

  Adopt the necessary amendments to the law on confiscation of criminal assets and ensure the Illegal Asset Forfeiture Commission continues to operate independently and efficiently.

Does the Commission provide financial and technical support to help with the reforms?

The Commission supports the efforts of Bulgaria and Romania in achieving the CVM objectives through funding under the European Structural and Investment Funds.

There were already a number of projects in the anti-corruption and judicial reform area in the 2007-2013 period funded by the Commission in Romania. In the 2014-2020 period the Administrative Capacity Programme (ESF) is providing funding of about €103 million for judicial reform projects in Romania, including €35 million specifically for anticorruption, and €35 million to support improvements in public procurement. European Regional Development Fund resources up to €15 million will be invested in capacity building and technical assistance in public procurement, in fraud prevention for Management Authorities and in the Fight Against Fraud Department.

In Bulgaria, during the 2007-2013 programming period €51 million was allocated under the Operational Programme for Administrative Capacity for the judiciary. Under the new programming period 2014-2020 a priority axis for the judiciary has been included in the Operational Programme for Good Governance with an allocation of close to €30 million. In addition to this, the European Commission's Structural Reform Support Service is active in providing technical support to the Bulgarian authorities in areas related to the CVM.

For More Information

Press Release: Commission reports on progress in Romania under the Co-operation and Verification Mechanism

Press Release: Commission reports on progress in Bulgaria under the Co-operation and Verification Mechanism

All CVM Reports

MEMO/18/6363