In this chapter I will present the requirements imposed to Romania by the European Commission in 2007 when it joined the European Union. These requirements refer to several reforms that Romania should implement in order to fight the existing corruption in the system. The evolution of these reforms is followed by the European Commission through a mechanism entitled the Mechanism of Cooperation and Verification. Thus each year Romania is evaluated through two reports which follow up the changes that Romania has made.
Further on I will also analyse the use of the Mechanism of Cooperation and Verification employed in order to prevent Romania from entering the Schengen space, presenting thus briefly the Schengen as a concept and the conditions that a country must fulfil in order to join the free movement space.
As a conclusion I will underline that the Mechanism of Cooperation and Verification was used as a political tool, by some western countries to prevent Romania from joining the Schengen space.
1. Romania`s accession to the European Union and the creation of the Mechanism of Cooperation and Verification.
In this part of the paper I will describe the status of Romania in 2007 when it joined the European Union. In addition I will also present the necessity of the creation of the Mechanism of Cooperation and Verification, the reasoning behind it.
As previously mentioned, the year 2007 was highly important for Romania due to the fact that this was the year of Romania`s entrance in the European Union. The national mentality of that period was characterised by dualism, because there were voices that were for change from an institutional point of view and voices that were against it and against the intrusion of the European Community in the Romanian domestic affairs (http://www.migrationinformation.org/feature/display.cfm?id=338)
As an example of this, the international media considered that the old parties were working to push this issue of change under the rug. Even if the EU put pressure on Romania, the Government responded and they responded by passing legislation in the Parliament.
As a consequence of the internal situation, the year 2007 brought two significant changes in Romania that have been suggested and monitored by the European Commission: first of all the creation of the National Integrity Agency (ANI) and second of all the Cooperation and Verification Mechanism (the CVM). Before going deeper and analysing these two concepts and their necessity I will present briefly Romania`s and Bulgaria`s evolution since they became democratic countries. Why did I decide to include Bulgaria as well in this analysis? Bulgaria`s path to the European Union and the Schengen space is very similar to Romania`s path. (http://www.sieps.se/sites/default/files/2012_1epa%20EN_A4.pdf)
The revolutions of 1989 in both Romania and Bulgaria can be considered an internal communist coup where opportunists reinvented themselves as transitional democratic leaders, after which they used the state power to win early elections. Most part of the 1990`s there were partial economic reforms which enriched the elite and contributed to the enlargement of corruption, networks of corruption, while prolonging the economic hardships of the average citizen. In both countries, the communist successor parties were implicated. By 2000 Romania was making some progress. One of the reasons for which Romania made significant institutional reforms is because of its desire to join the European community.
As already mentioned the first major change refers to the creation of the National Integrity Agency (ANI). This agency is characterised by substantial powers that have the ability to force all public servants to reveal their assets, that could investigate individuals who were in the impossibility to explain the origin of their assets, that could seize the unexplained assets and finally that could require the public officials to submit the conflict of interest declarations.
The second huge change refers to the creation of the Cooperation and Verification Mechanism, monitored by the European Commission. In order to better understand this concept a short explanation is required.
When Romania and Bulgaria joined the EU on the 1st of January 2007, the European Community considered that these countries still had to progress in making reforms in the fields of judicial reform, corruption and also organised crime.
The EU justified this action by saying that their desire is that these countries develop proper administrative and judicial systems, which they need in order to deliver on their membership, but also for them to enjoy their benefits. They also considered that a progress in judicial reform, corruption and organised crime will allow Bulgarians and Romanians to enjoy their full rights as EU citizens. (http://ec.europa.eu/cvm/index_en.htm)
The CVM can be defined as a monitoring process that asks for a prompt policy response from the Bulgarian and Romanian governments. The CVM has as its aim the reform in these two countries and also the prevention regarding the reversal of the rule of law reforms which were enacted during the EU accession negotiations.
Every six months, the Council issues a CVM report for both Bulgaria and Romania which evaluates the progress on these established benchmarks and which also have to flag the most pressing issues that should be addressed before the next report. All these monitoring reports have been praised for being highly detailed and also for following the evolution of specific administrative reforms, judicial cases and political developments. In consequence they have played an important role in gathering and disseminating all information about the state of reform in both countries. (http://www.sieps.se/sites/default/files/2012_1epa%20EN_A4.pdf)
The most relevant reports have been published in July each year, and the so-called interim “technical” reports or updates have come in February. In order to get a grasp of the CVM reports and understand their goal I will shortly present the most important ones.
2. The overall assessment of the CVM reports since 2007
The European Commission started issuing reports since 2007 when Romania joined the European Union. In the early years Romania was still struggling with the reforms that had to be enforced in the countries, so I will not present the early ones. I will start with the CVM from 2010 which was a controversial one after which I will describe the CVM from 2011 which shows an improvement made by Romania and finally the one in 2012. The report from 2012 is the one that arose a lot of problems in the international community, because this was the report used by some western countries to block Romania`s accession to the Schengen space.
The CVM report from July 2010 is a very debatable report as well. In this report the European Commission was highly critical, especially because of the abolition of ANI (the National Integrity Agency). The Commission declared that Romania was in breach of its accession commitments and it called on Bucharest to „re-establish the ANI’s powers to propose the effective forfeiture of unjustified wealth”.
The Commission also noticed that Romania lacks „broad-based political support in favour of transparency and the effective protection against corruption and conflict of interest”. As a consequence of this in August 2010, both houses of the Romanian Parliament voted to resurrect a weaker National Integrity Agency, this measure was widely understood to be the direct result of EU pressure. (http://www.sieps.se/sites/default/files/2012_1epa%20EN_A4.pdf)
After the report was issued there were several comments made by the European community. The most controversial statement came from Pierre Lellouche who was at that time France`s secretary for European Affairs. Pierre Lellouche was the first one to connect the requirements necessary to join the Schengen space to the Mechanism of Cooperation
and Verification requirements, mostly due to his worries about the Romanian-Moldovian border “because of the distribution of Romanian passports outside their border”. As a consequence of this statement, France reunited it`s forces with Germany and declared in a joint letter that the Schengen entry should be postponed until: „ both members have initiated clear and objective, sustainable and irreversible positive developments in the fight against corruption and organised crime and in reforming the judicial system”. ( http://www.spiegel.de/international/europe/press-review-on-blocking-romania-and-bulgaria-from-schengen-area-a-887668.html)
After the harsh evaluation made by the European Commission in the report from 2010, the report from 2011 shows a different face of Romania. The CVM report from July 2011 aknowledged the fact that Romania had „responded swiftly to the Commission’s recommendation by adopting a new legal framework for the National Integrity Agency (ANI). The National Integrity Agency was operational under this new legal framework and started to establish again its track record of investigations”. (http://www.spiegel.de/international/europe/press-review-on-blocking-romania-and-bulgaria-from-schengen-area-a-887668.html)
The Commission also stated the fact that Romania has made significant steps: „to improve the efficiency of judicial procedures and continued preparations for the entering into force of four new codes that are the foundation for a modern judicial process”. (http://www.sieps.se/sites/default/files/2012_1epa%20EN_A4.pdf)
Because of the CVM process, the Commission monitors the progress of important cases and also helps build the pressure both on the judiciary and the Parliament in order to act appropriately. Even with these measures, the Commission considers that progress in fighting corruption remains slow; many cases never go to trial whilst others are dismissed or lost because of the delays during the trial period and sentences are often very light with little effective confiscation of assets and not to mention the fact that Court proceedings often show the defendants raising objections that postpone trials.
The Commission regretted that certain important high-level corruption cases saw little movement in Court during early 2011. This calls for “urgent action” to accelerate trials that risk being ended due to the fact that too much time has passed since that alleged crime.
Another report was issued in 2012 in February. In this report Romania received a good feedback from the European Commission. Romania was thus praised for progress made in fighting corruption.
But the most expected report was the one in July 2012, which marked the first five years since the inception of the CVM. After this long period of time the Commission was expected to make an overall assessment of reforms in both countries. Besides the assessment the Commission also had to make recommendations about whether or not the CVM should remain in place.
The following part of the paper I will present the guidelines and recommendations given by the European Commission because I consider it relevant to prove the efforts and progress which were made by Romania since the inception of the CVM.
By presenting these guidelines and recommendations I will also demonstrate the fact that these are different conditions from the ones required to join the Schengen space, conditions that I will touch upon later in my paper.
The Guidelines imposed to Romania were established in the following four areas:
– judicial reform;
– fight against high-level corruption;
– the prevention and fight against corruption in the public sector.
When the last CVM was issued in 2012 the guidelines given by the European Commission were in the following areas: Regarding the judicial reform the Commission gave the following advice to Romania:” 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”.
Concerning the fight against corruption the Commission adviced Romania to: „ 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”.
„ Building on progress already made, continue to conduct professional, non-
partisan investigations into allegations of high-level corruption”.
” Take further measures to prevent and fight against corruption, in particular
within the local government”. (http://ec.europa.eu/cvm/docs/com_2012_410_en.pdf)
The Commission considers that in the future Romania could attain the objectives of the CVM, if it guarantees the rule of law, maintains this direction and steps up the implementation of reforms. Romania needs to ensure respect for the rule of law which also includes independent judicial review.
The Romanian government is committed to ensure respect for the rule of law in line with the recommendations which are listed below. This enforces the conclusion that the progress in the implementation of the benchmarks which would be required for the Commission to decide to end the CVM is not there yet.
More reforms within all branches of government, within its judiciary and also astronger commitment to integrity and to the fight against corruption is mandatory to fulfil its requirements. Mostly, the Romanian authorities need to prove that a sustainable reform process has taken root in Romania and that the external intervention of the CVM is no longer required.
The experience of the last five years shows that when action is taken, it can bringthe expected results. Romania has alredy made reforms regarding institutions such as DNA (The Anti-Corruption Agency) and ANI (The National Integrity Agency). In the last years the judiciary has been more active regarding its judicial independence
All Member States have obligations concerning an area of freedom, security and justice. The Commission is eager to see Romania completing that particular process of the CVM and also addressing these issues to the other Member States.
Regarding the current situation the Commission will adopt another report under the CVM for Romania, before the end of 2013. In this report, they will analyse if their concerns regarding the rule of law and the independence of the judiciary have been improved and they will also check if the democratic and judiciary system are stable again. The Commission will closely monitor progress, by having regular missions and also by having regular dialogue both with the Romanian authorities and with the other Member States.
As previously mentioned the Commission did not only give guidelines but it also gave recommendations for Romania in some areas. There are still improvements that Romania must fulfil in the following areas:
1. Respect for the rule of law and the independence of the judiciary;
2. Reform of the judicial system;
3. Accountability of the judicial system;
4. Consistency and transparency of the judicial process;
5. Effectiveness of judicial action;
7. Fight against corruption. (http://ec.europa.eu/cvm/docs/com_2013_47_en.pdf)
The analysis of the CVM report and its guidelines were necessary in order to explain Romania`s path in the European Union since 2007.
3. How does the Mechanism of Cooperation and Verification assess the progress in a country?
In this part I will present the practical way in which the CVM works in Romania. It is important to understand the way in which the Mechanism of Cooperation and Verification assesses progress because it is impossible to understand the CVM reports if one does not understand the way in which it works and how it actually measures the reform in the system.
The Mechanism of Cooperation and Verification assess the progress made in both countries through yearly reports. These reports include regular reporting from the Commission and they also provide the fact that the mechanism will continue until the moment when all the CVM objectives are met and all four benchmarks are satisfactorily fulfilled.
These reports analyze what has been achieved so far and what has to be achieved still.
They cover both the legislation and tools; the elements of the legal framework which still need to be completed and also if ownership is sufficiently embedded to maintain the right direction of reform. The Commission takes into account the sustainability and irreversibility of the reform process as the determining elements of its assessment.
During these five years since the CVM tool was implemented in Romania there have been periods of progress and setbacks, times when cooperation has worked and times when not, these being comments made by the European Commission when analyzing the status of Romania. So this report from 2012 recognizes the entire progress made since accession.
Nevertheless, this report is adopted at a time when relevant questions are raised with regard to respect for the rule of law and also the independence of the judiciary in Romania. The overall progress has to be assessed in the context of the wider social recognition of important principles such as the rule of law and the independence of the judicial process, these being part of a well-functioning democracy. Thus, a well functioning, independent judicial system and also respect for democratic institutions is indispensable for mutual trust within the European Union and for winning the confidence of both citizens and investors.
This report looks at the last five years as an entity, the current controversies pose a serious threat to the progress which has been achieved so far and also raises serious questions as to the future of the reforms which have already been launched. As a consequence this report includes specific recommendations which address the current situation that help restore the respect for principles which are milestones of European democracy.
In the present in the European Union the rule of law represents one of the fundamental principles. The rule of law also represents a particular concern for Romanians because the Eurobarometer polling has shown that 93% of Romanians think that corruption is an important issue for their country and 91% responded the same regarding the shortcomings in the judicial system. The same poll also underlined the fact that 76% of Romanians supported the EU which was helping to tackle these issues.
This CVM does not demand Romania to achieve higher standards than in other Member States. Its goal is to help Romania achieve a certain standard, which is comparable to other Member States. This objective is also supported by 72% of the Romanians.
The Commission is using in this report points of reference and comparative indicators where they are available. In order to compare the progress made in Romania with the situation in other Member States, the Commission also drew upon senior experts from key professions which are dealing with these issues.
The Commission’s assessment of the progress registered by Romania since accession shows that many of the building blocks required are now in place, even though there has been some problems in the country. The CVM has made a huge contribution in Romania. The focus has shifted in order to ensure that the implementation delivers the results required and also that the ownership exists in order to maintain the reform also in challenging all the political circumstances.
Even so, the implementation of this framework with rules by the judiciary and administration has still not met all the objectives mentioned in the CVM. There are cases where implementation has just started, or where there are difficulties.
Ownership and implementation represent thus the key elements in the fulfilment of the CVM benchmarks. They are demonstrated through actions, results and decisions which are taken by those that have the authority to influence both the direction and the speed of change. The future appointments of a new General Prosecutor and a Chief Prosecutor of the DNA (Anti-Corruption Agency) will be crucial indicators of the sustainability of reform.
The Romanian government has responded to the specific demands in the CVM reports, suggesting that in the absence of the CVM there would be less reform. The detailed monitoring and assessment in the CVM reports, coupled with the political pressure and also some concrete sanctions, can deliver substantial results.
Due to the huge problems regarding the rule of law, judicial quality and the fight against corruption in the Western Balkans states, the EU would do well to set up a CVM structure for each acceding state. In case it is not needed anymore then it can be dismantled. There are also some opinions that state the fact that the behaviour of public officials could change in areas such as accountability, transparency and the fight against corruption once their country has joined the EU. They consider that the CVM structure would help deter backsliding. (http://europa.eu/rapid/press-release_MEMO-08-523_en.htm)
Also EU pressure can be powerful when it is mixed with domestic incentives that are related to winning elections and also with holding the power. Civil society groups play a relevant role in highlighting corruption and also regarding the need for judicial reform. The EU needs to rethink civil society funding through government institutions, since this undermines the readiness of civil society groups to highlight corruption.
In addition, the connection made between the CVM process and the EU has motivated the governments to make more effort in order to join the Schengen space (ex: Romania and Bulgaria). From that point of view, we can consider that the decision taken in 2010 and 2011 by most of the EU countries not to allow Romania in the Schengen space, as a sanction for not meeting the CVM benchmarks, has helped trigger reforms in the country, since Schengen membership is valued by citizens.
One of the most significant results of Romania and Bulgaria joining the EU is that it helped put the fight against corruption squarely on the EU agenda – an instance, perhaps, of „ reverse conditionality”. (http://ec.europa.eu/public_opinion/flash/fl_351_en.pdf)
4. Is Romania catching up with the other countries?
In this sub chapter I will present the evolution of Romania since the inception of the Mechanism of Cooperation and Verification in 2007. I will present the changes made by Romania and the way in which the changes affect the current situation of the country both internally and internationally.
So the question is: Are Romania and Bulgaria catching up with the other countries? The opinions in this case are divided. Normally success is defined as delivering all the domestic institutional changes which are necessary to create an effective judiciary and also to fight corruption. Also it is important to state the fact that political leaders and parties will persuade their reforms as a response to the forces of both domestic and EU influence. The domestic incentive for all political leaders are firstly the electoral ones and they are related to aspects such as: the salience of judicial and corruption-related reforms to all the voters; other parties position, mostly potential coalition partners and also the role of civic groups which are making public government performance and which are galvanizing the public pressure.
On the other hand the EU incentives stem firstly from the evaluations of each governments performance, which is made public by the Commission in the biannual CVM reports and also the possibility of punitive actions taken by the EU, mostly related to EU funds and to the Schengen accession.
The CVM has been pressuring both Bulgaria and Romania to adopt and implement some relevant reforms. The inception of CVM is also seen with scepticism by some countries and also by EU officials.
Historically speaking, since the fall of communism in 1989, ten states have passed through the EU`s accession process. The huge benefits of EU membership created all the political incentives to satisfy the EU`s complex membership requirements.
These incentives along with other characteristics of the pre-accession procedure actually create the EU`s leverage on domestic reform. EU leverage has helped compel candidates to reform both the state and the economy, improving thus the quality of democracy and also the efficiency of state institutions in various ways.
„ By 2005, the eight post-communist states that joined the EU in 2004 were, on average, indistinguishable from the EU’s old member states on measures of political rights and civil liberties. However, the two post-communist states that joined in 2007, Bulgaria and Romania, have struggled to achieve the same relative success. Severe problems with corruption, judicial quality and state capacity remain” (http://www.sieps.se/sites/default/files/2012_1epa%20EN_A4.pdf)
In the pre-accession process, the strict enforcement in some areas was limited to the adoption of EU rules. In other areas, mostly related to the corruption situation, there were not that many rules to be enforced. After 20 years of democratization, both Bulgaria and Romania are considered to be: semi-consolidated democracies, in contrast to the other eight post-communist EU members that are seen as consolidated.
The domestic conditions in Bulgaria and Romania at this moment of democratization were not as auspicious as in the neighbouring states. Complex literature that analysed the comparative politics of post-communism has shown the importance of communist and also pre-communist legacies in shaping all the political trajectories after 1989.
„ Bulgaria and Romania suffered under oppressive and highly clientelistic communist regimes that took power in societies that had low levels of industrialization and civil society organization in the pre-communist period”. (http://www.sieps.se/sites/default/files/2012_1epa%20EN_A4.pdf)
There have been attempts from the EU to try to consolidate this democracy since accession. In the last two decades there have been two important changes in these societies: reforming the judiciary and also reforming and trying to control the corruption.
„While the EU’s previous reports on the progress of candidate States were often criticized for being too vague, these CVM reports are remarkably detailed, following the activities of relevant institutions and tracking the outcome of high-level criminal cases”. Hinting at the likely longevity of the CVM mechanism, the Council declared in September 2010 that the CVM is an „ appropriate tool” that will stay in place „pending the results expected in this framework” (Council of the European Union 2010).”
„ Since accession, we argue that the causal importance of domestic incentives has increased substantially (see also Noutcheva and Bechev 2008). Why? In a variety of ways, EU leverage has helped empower domestic coalitions with liberal democratic aims and undermine illiberal ones (Vachudova 2005)”. (http://www.sieps.se/sites/default/files/2012_1epa%20EN_A4.pdf)
Domestic incentives to fight corruption are normally tied to elections. Many parties might chose to build their electoral platform on trying to improve the rule of law. From the moment this commitment has been made, the credibility of the political party may hinder its capacity to deliver at its best.
The chance of being re-elected might vanish if the voters no longer have trust in that the party would implement the domestic institutional reforms in order to fight corruption and organised crime. In these cases, there is a stringent necessity for an active civil society which can analyse not only the performances made by the governing political parties but that could also highlight all the important shortcomings. Thus the CVM can only work in connection with strong domestic incentives.
Regarding the National Integrity Agency which identified and investigated cases where there is unexplained financial gain. An important signal was sent to Bucharest, where the Commission said that „ the potential dissuasive effect of ANI cases is hindered by the delays and lack of consistency in the judicial and administrative follow-up to ANI cases’ (European Commission 2012)”. ( http://www.sieps.se/sites/default/files/2012_1epa%20EN_A4.pdf) Thus the Commission called for bigger political will and also commitment on the part of the judiciary which should fight corruption. In this case, the Parliament is seen as blocking the progress.
Even if Romania made significant steps still there are still reforms to be undertaken. The report underlined the fact that there has been limited progress in developing the cooperation amongst the government, the civil society and the fight against corruption.
In addition training and recruitment standards need to be improved, alongside with transparency and accountability. „ As in Bulgaria, a rather large „conservative” faction within the judiciary appears committed to fighting both transparency and accountability as it continues to protect the beneficiaries of widespread corruption in Romania. The performance of government officials in many areas remains poor since accountability is largely absent and political allegiance is the main determinant of success. ( http://www.sieps.se/sites/default/files/2012_1epa%20EN_A4.pdf)
After analysing the CVM reports since its inception in the following part of the paper I will present the inclusion of Schengen in the Amsterdam treaty.
5. The inclusion of Schengen in the Amsterdam Treaty
The inclusion of Schengen in the Amsterdam Treaty represents an important moment in the evolution of the Schengen space. With the Amsterdam Treaty, this intergovernmetal cooperation was incorporated into the EU framework on 1 May 1999. Besides this, there is also a protocol attached to the Treaty of Amsterdam which incorporates the developments brought about by the Schengen Agreement into the EU framework.
The Schengen area is now within the legal framework of the EU. This means that it comes under both parliamentary and judicial scrutinity and it attains the objective of free movement of person which is enshrined in the Single European Act of 1984.
As it was previously specified, in the Treaty of the Amsterdam, the Council remplaced the Executive Committee which was created under the Schengen Agreements.
The Council implemented a Decision 1999/307/RC of 1 May 1999 which set up a procedure for the incorporation of the Schengen Secretariat into the General Secretariat of the Council, including also the arrangements that are related to Schengen Secretariat staff. As a consequence of this, new working groups were set up to help the Council to manage their work.
One of the Council’s most important tasks in incorporating the Schengen area was to identify those provisions and measures which were taken by the signatory States that formed a genuine Acquis and that could serve as a foundation for further cooperation.
A list of the elements that make up this Acquis, which also set out the corresponding legal basis for each of them in the Treaty was adopted by the Council Decisions 1999/435/EC and 1999/436/EC of 20 May 1999. Since that moment the Schengen legislation has been further developed.
Today, the Schengen Area encompasses most EU States, except Bulgaria, Cyprus, Ireland, Romania and the United Kingdom. However, Bulgaria and Romania are currently in the process of joining the Schengen Area. Of non-EU States, Iceland, Norway, Switzerland and Liechtenstein have joined the Schengen Area. ( http://europa.eu/legislation_summaries/justice_freedom_security/free_movement_of_persons_asylum_immigration/l33020_en.htm)
In this subchapter I will present the conditions required to join the Schengen space, further on in my paper demonstrating thus the fact that there is no legal connection between the CVM conditions and the Schengen requirements.
6. Membership of the Schengen space from a Romanian perspective
Now I will briefly describe the Schengen space as a concept, after which I will shortly present the conditions that a country must fulfil in order to join the Schengen space. The analysis of the Schengen space is necessary because futher on in my paper I will demonstrate the fact that the conditions necessary to fulfill the CVM are not the same conditions necessary to join the Schengen space.
So going back to history, in 1985 when a break-through came that year, when cooperation between individual governments led to the signing in a small village in Luxembourg (Schengen) of the Agreement on the gradual abolition of checks at common borders which was followed by the signing in 1990 of the Convention implementing that Agreement.
The implementation of the Schengen Agreements thus started in 1995, initially involving seven EU States. It was created as an intergovernmental initiative, the developments brought about by the Schengen Agreements have now been incorporated into the body of rules governing the EU. Today, the Schengen Area encompasses most EU States, except for Bulgaria, Cyprus, Ireland, Romania and the United Kingdom. However, Bulgaria and Romania are currently in the process of joining the Schengen Area. Of non-EU States, Iceland, Norway, Switzerland and Liechtenstein have joined the Schengen Area.
What is the Schengen space about? Any person, irrespective of nationality, may cross the internal borders without being subjected to any border checks. However, the competent national authorities can carry out police checks also at the internal borders and in border areas, provided that such checks are not equivalent to border checks. This is valid for cases when, in particular, the checks do not have border control as an objective and which are also based on general police information and experience. It’s also valid when the checks are carried out in a manner clearly distinct from systematic border checks and on the basis of spot-checks. Under such circumstances, the police may for example ask you to identify yourself or pose questions regarding your stay, depending on the purpose of the check.
If there is a serious threat to public policy or internal security, a Schengen country may exceptionally reintroduce border control at its internal borders for, in principle, a limited period of no more than thirty days. If such controls are reintroduced, the other Schengen countries, the European Parliament and the Commission should be informed, as should the public.
Even if Schengen is most of all a political call, there are also some technical conditions that each country must fulfil in order to join the free space:
– each State has to take the responsibility that they will control the external borders on behalf of the other Schengen States and also that they will issue uniform Schengen visas
– that every State will cooperate efficiently with law enforcement agencies in other Schengen States so they can maintain a high level of security
– apply common set of Schengen rules (the so-called “Schengen Acquis”), such as controls of land, sea and air borders (airports), visas, police cooperation and also the protection of personal data connect to and use the SIS.
The Schengen Information System is the largest information system for public security in Europe. By allowing for easy information exchanges between national border control, customs and police authorities, it ensures that the free movement of people within the EU can take place in a safe environment. It also contains alerts on missing persons, in particular children, as well as information on certain property, such as banknotes, cars, vans, firearms and identity documents, that may have been stolen, misappropriated or lost. Information is entered into the SIS by national authorities and forwarded via the Central System to all Schengen States. The SIRENE Manual lays down the procedures for EU States’ exchanges of supplementary information on alerts stored in SIS.
On 9 April 2013, the second generation Schengen Information System (SIS II) entered into operation. SIS II has enhanced functionalities, such as the possibility to use biometrics, new types of alerts, the possibility to link different alerts (such as an alert on a person and a vehicle) and a facility for direct queries on the system. It also ensures stronger data protection.
The development of Schengen III suggests that integration will continue to deepen, especially concerning the efforts to combat both terrorism and illegal migration. As the EU grows and as free movement extends eastward, Schengen will bring the advantages of freedom of movement, but it will also call upon all the European nations to develop increasing thus trust in each other’s ability to control who is allowed to enter and enjoy these advantages.
Applicant countries undergo a „ Schengen evaluation” before joining the Schengen Area and periodically thereafter to ensure the correct application of the legislation. At the present there are two countries that want to be part of the Schengen space and so far have been declined: Romania and Bulgaria. (http://ec.europa.eu/dgs/home-affairs/what-we-do/policies/borders-and-visas/schengen/)
For Romanians Schengen membership (if ever they get it) will not bring a major change. They have been able to travel around Europe only with their ID or passport since 2007 when their country became an EU member. Even so, another Schengen membership postponement is a setback for Romania. As long as the Romanian Parliament continues to block the prosecution for corruption charges of high-profile politicians and Romanians rely on bribes to solve their daily problems, the country’s integration into the EU will not be completed.(http://europa.eu/newsroom/calendar/event/421051/progress-report-under-the-cooperation-and-verification-mechanism-for-romania)
The stake is mostly psychological and it is about Romania`s image. Because Romania knows that it has done everything correct from a technical point of view another denial would be a failure for the country.
In the Romanian mentality being part of the Union means having equal rights. With the Schengen dilemma, it is true that the movement rights are not affected but from a psychological point of view, passing through border points in a borderless Union is capable to create an artificial tie-break.
Another thing worth mentioning is the fact that neither the work rights, nor the residence rights are affected by joining the Schengen Space. The most relevant effects are felt at a primary level, especially concerning the business in the field of transportation and tourism. All of these things register additional costs which are induced by the additional time spent at the Western borders.
In other words, Romania and Bulgaria’s integration into the Schengen Space actually represents a normal step in their evolution due to the fact that they became EU members since 2007.
These two states have initiated the process together by signing the Accession Treaty and they are also evaluated together. The geographical area they are protecting comes in support of this logic. If one of the two states performs less and if it also registers negative reports from the Schengen Evaluation experts, then both states shall be kept outside of the Schengen Space. After analysing the conditions required to join the Schengen space in the following part I will present the connection made between the CVM and Romania`s accession to the Schengen space.
7. Connection made between the CVM and Romania`s accession to the Schengen space
In this subchapter I will present the most important views regarding Romania`s denial to join the Schengen space and the connection made between it and the CVM report from 2012. I will present several opinions, emphasizing the legal arguments about the above topic that demonstrate the fact that the legal requirements mentioned in the CVM guidelines differ from the legal arguments mentioned in the Schengen Acquis and if the legal conditions differ then tying them represents a controversial action.
The European Union has further delayed a decision on whether Romania and Bulgaria should be admitted to the Union’s Schengen area of borderless travel. A meeting of home-affairs ministers from the EU’s 27 Member States in Brussels decided that the two were not yet ready to join: “The Council decided that the issue will again be addressed before the end of 2013 and there are a number of
states who had a variety of issues of concern” (http://www.sieps.se/sites/default/files/2012_1epa%20EN_A4.pdf) said Alan Shatter, Ireland’s minister for justice, equality and defence, who chaired the meeting. Shatter also said that these concerns were of a political nature and that the European Commission had found the two countries to be ready for Schengen membership from a technical point of view.
In the final statement, the ministers suggested that a two-stage approach might be decided by the end of the year, which means that border controls would be abolished for air travel first after which the checks at land borders will be abolished as well. In addition Shatter also said that opposition to admit the two countries to the Schengen space also extended beyond the Dutch and German governments.
There has been made a connection between the requirements stated in the CVM and the requirements necessary in order to join the Schengen space. About this topic a lot of opinions have been expressed and I will underline the most important ones, from journalists to EU officials, politicians, analysts etc. The reason why I include all these opinions, even if some of them do not have a legal background is to present the overall situation, that many EU issues have a political explanation, so one cannot exclude the other.
Germany declared at the EU Council meeting they would veto Romania`s accession. The Schengen legal framework requires a unanimity of votes from all member countries in order to open their borders to a new country.
Germany`s concern as that of Netherlands and Great Britain is the rise of economic refugees that would come to their country if the borders would be open for Romania. The EU diplomats representing these countries declared that they have registered an increasing number of arrivals from Romania and Bulgaria.
Friedrich, the German Minister of Interior declared repeatedly over time that the influx will only grow once the countries are given full freedom of movement and access to the labour market across the EU. He added that the „The time isn’t right, there are still weaknesses — especially when it comes to the reliability of the justice system, which prevent us from being able to say: Remove the border controls now”. ( http://www.spiegel.de/international/europe/press-review-on-blocking-romania-and-bulgaria-from-schengen-area-a-887668.html)
The journalists and political analysts in Germany have blaimed Hans-Peter Friedrich (German Minister of Interior) for his behaviour saying it`s a political decision. They have observed a populist tone in Friedrich’s remarks on the wave of migration. In the past weeks, he accused the new immigrants of taking advantage of the German social welfare system through what the British call „benefits tourism” and the Germans call „ poverty migration”. Friedrich is asking at a European level questions such as: “Does freedom of movement mean we have to assume that people from all over Europe who believe that they can livebetter on welfare in Germany than they can in their own countries will come to Germany? This danger cannot be allowed to come true”. (http://www.spiegel.de/international/europe/press-review-on-blocking-romania-and-bulgaria-from-schengen-area-a-887668.html)
Most people are severely criticising Friedrich. They are complaining of the fact that the politician is trying so score votes ahead of September`s election by blocking Bulgaria and Romania from entering the Schengen Area.
For example, Berliner Zeitung writes: “But this doesn’t make false arguments correct. Bulgarians and Romanians also require passport controls when they come to Germany. Yes, and among them are people who beg, steal or work as prostitutes. But they are not the majority. Eighty percent are seeking legitimate work. Twenty percent are even highly qualified. They are anything but the freeloaders seeking to profit from the German welfare state that some would make them out to be”.
“One can certainly debate whether it was correct or not to allow Bulgaria and Romania into the EU. But now they are now a part of it, even if they don’t exercise the same level of rule of law. This delay in allowing both of them into Schengen looks like an attempt to assert pressure but this will not help much. In Romania, people are already saying they can live without Schengen. In other words, there can’t be much more to this than a campaign issue for Freidrich.”
The Christian democrat German Parliament ran by Gunther Krichbaum shows the tight connection between Romania joining the Schengen and the reforms made in justice. The CDU member of the Parliament underlined the fact that the evaluation of the progress realised by Romania can take place only after the report will be issued in December 2013. After this, according to him, Romania`s entrance must become reality.
Krichbaum has also mentioned the fact that Germany has no doubts regarding the technical capacity of Romania to ensure the external borders of the EU. On the other hand, the EU has the duty, in his opinion to elaborate on mechanisms to monitor and improve some of the shortcomings of these countries. Contrary to this, some Member States might no longer sustain Romania`s entrance into the Schengen area. In addition, some of the problems are according to Krichbaum „ actually not created by the Schengen system but by the consequences of the Iron Curtain”. (http://ancheteonline.ro/2013/03/germania-este-o-legatura-stransa-intre-aderarea-la-schengen-si-raportul-mcv-o-evaluare-abia-in-2014/)
The reasons why some old member states are opposing Romania`s entrance is also motivated by populism, which represents a risk because the voice of the Schengen space is not a unified voice, but it would be indeed better for Romania to have a unified voice.
As a consequence it would be better for Romania to hear a unified voice from Europe saying that we are not prepared, then just listening to Germany that wants to use its veto right, thus changing the current political situation.
Analyst Elizabeth Collet of Migration Policy Institute, quoted by „ Evenimentul Zilei” daily ( Romanian newspaper) stated the real reason behind Romania and Bulgaria’s delayed accession, is another. „I think that France and Germany, together with a certain number of other countries, are facing political difficulties in proving themselves open to immigration. Even in European framework, this process is controversial during an economic crisis. In the same context of trust, Romanian and Bulgarian authorities are being offered the Greek precedents a counter-argument against quick integration. Greek failed the exam three times before joining the Schengen Space and today, it has the greatest difficulties in guarding the Turkey border”. (http://eupi.osi.bg/fce/001/0066/files/SchengenReport_ROMANIA_February2011.pdf)
On the other hand even if Great Britain is not part of the Schengen space, they still mention their position regarding Romania`s and Bulgaria`s entrance. Great Britain declared that they are for Romania and Bulgaria joining the Schengen space and that they have adopted this position since 2011. The officials of Great Britain also said that it is in their best interest to have an efficient control system at the borders. UK also mentioned that they were not part of the group that made the connection between the Schengen and the CVM report. Great Britain is taking into consideration the CVM report but they consider the CVM report to be distinct from the Schengen space. But, obviously, there are also other EU partners which have made this connection and which have specifically said that more progress is needed in order to agree with Romania`s accession to the Schengen space. (http://www.revista22.ro/numirea-unor-oameni-independen539i-537i-curajo537i-la-parchetul-general-537i-dna-este-o-urgen539a-23305.html)
The European Commission was reserved even from the beginning to create a connection between the CVM reports and the admission conditions in the free movement space. The fact that everybody in Brussells is dissociating the CVM report from the Schengen situation is not helping Romania that much.
Traditionally speaking, the Commission has already admitted the fact that CVM and the Schengen have different evaluation criteria and that they cannot be tied one to the other, which did not stop the main occidental powers to take precautionary measures and use the CVM in order to block the Schengen access to Romanian citizens.
We are assisting at an incoherence of the European politics which has its own explanations. The Commission is defending its own authority and is worried about the initiatives of some states to base their policy against immigration. Highly significant is the initiative taken by Intern Affair ministers to reestablish the control at the national frontiers in certain conditions. With this gathering of the ministers of Internal Affairs in the Schengen space, which was organised in 2012 in Luxembourg, it has arrived to an agreement which allows the states to adopt protection measures from the moment when immigration waves become burdensome.
The idea, launched by the ex-president of France, Nicolas Sarkozy was promoted by the minister of Internal Affairs Claude Guéant, which together with his German colleague Hans-Peter Friedrich have signed a letter in which they request the countries from the Schengen space to allow through a national decision to reintroduce the frontier controls for a period of 30 days with the possibility of an extension, in case needed. After the French elections, the proposal was also promoted by the socialist minister of internal affairs Manuel Valls.
The European Commission never agreed to these initiatives which consolidate the sovereignty of national states. The spokesmen for the EU Commissioner Cecilia Malmstrom declared in 2012 that au contraire: „ The Schengen space needs more of Europe”.
The European Commission proposed a solution which meant to limit the abusive use of new powers, requiring the national states which would want the extension of this measure of closing down the frontiers, to request for the help from the Member States. But actually the Commission did not agree at all with the revisal of the Schengen Agreements, hoping to conserve its prerogatives regarding the free movement.
If initially the Schengen space had its framework built through inter-governmental agreements, subsequently it was integrated in the EU treaties. The declarations of the representatives of the Commission regarding the Romanian situation have followed thus the guidelines of its general politics which have not approved the revisal of the Schengen agreements.
The Commission is controversial in its comments due to the fact that on one hand it allows the access of Member States to the free movement and on the other hand it reveals the fact that these states are denying the access of Romania also from reasons which are not contained in the CVM reports. (http://www.dw.de/rela%C5%A3ia-dintre-mcv-%C5%9Fi-dosarul-schengen/a-16564550)
Jose Manuel Barosso, the president of the European Commission declared that he is supporting both Romania and Bulgaria in their process to join the Schengen space and he also added the fact that the decision to allow these two countries is not taken by the European Commission but by the Member States. About the last CVM report he commented: „ The CVM report acknowledges the fact that progress has been made in the past five years but the report also contains other recommendations in order to finalise the reform process. I have asked for another report before the end of this year”. (http://www.hotnews.ro/stiri-esential-12824890-live-video-text-ora-14-00-comisia-europeana-preznta-raportul-mcv-pentru-romania.htm)
On the other hand the EU Parliament President Martin Schulz said that Berlin was politicizing Bulgaria and Romania’s accession process. Schulz said that it was necessary to wait for the European Commission’s progress reports. “We are a community of rights,” Schulz said. “I reject political criteria.” (http://www.dw.de/germany-blocks-schengen-membership-for-bulgaria-romania/a-16656037)
The European Commission spokesman Jonathan Todd said no EU country has presented „ Any evidence whatsoever that there is benefit tourism. It is a non-problem. It does not exist. There is a perception in some Member States that has no grounding in reality”. (http://www.spiegel.de/international/europe/press-review-on-blocking-romania-and-bulgaria-from-schengen-area-a-887668.html)
Stefan Fule declared about Romania`s accession to the Schengen space „ is blocked by some considerations of a political nature, mostly related to the fact that in some states which oppose our accession, 2013 is an electoral year and the government from Bucharest cannot change that thing”. The EU Commission does not support the tendency of some EU states to create a political connection between Romania`s and Bulgaria`s accession to the Schengen space and the CVM, this being the declaration of the EU commissioner for enlargement. (http://www.ziarulfaclia.ro/corina-cretu-comisia-europeana-reitereaza-ca-intre-aderarea-romaniei-la-spatiul-schengen-si-mcv-nu-exista-legatura/)
When Romanians are asked about the connection between Schegen and the CVM they consider the connection made between them as being incorrect. Not even the European Commission is saying out load there exists a connection between the two. Thus, if this connection is not correct that means that Romania`s refusal to join the Schegen space could be considered as an injustice.
After analysing the Schengen space and the way in which the CVM was used to block Romania`s entrance in the free movement space several questions arise. Why was the CVM tool used the first time in the case of Romania and Bulgaria? When these countries joined the European Union in 2007 the European Commission considered them to have huge problems concerning corruption. But if this was the mentality of the period and these countries were still far away from other EU countries that were stable and where the justice system was more efficient then why were both Romania and Bulgaria accepted in the European Union? By accepting Romania in the European Union Romanian citizens could benefit from all the freedoms enriched in the treaty, the most important ones being the free movement of people and workers, freedoms that I will touch upon later in my paper. My opinion, as a Romanian is that the implementation of the CVM was a good idea, because Romania needed an international body that offered guidelines/ recommendations and the country also needed an international body to follow up those changes and guide the country on the right track. Even if I agree with the implementation of the CVM in Romania I do disagree with the fact that this was used as a political tool by Germany and The Netherlands that did not want Romania in the Schengen space.
Another question that arises is the following: Will the CVM be used again in the future for other countries? Looking at the latest case it would appear no to be the answer, because Croatia joined the European Union on the 1st of July 2013 and no CVM was implemented in that country. Even so, maybe Croatia did not have so many corruption problems in order for the European Commission to decide to implement this mechanism in the country. There are still other European countries that will join the European Union in the future, so only time will decide upon this question, if this mechanism will be reused or not, because there are indeed other EU countries that are as corrupted or even more corrupted then were Romania and Bulgaria in 2007 when they joined the European Union.
One of the features of the CVM is represented by its temporary nature. A question that must be asked is then, if this mechanism was introduced in the same year for both Romania and Bulgaria, will it be also removed at the same time for both countries even if one country might progress more and implement all the recommendations faster? So if Romania receives better feedback then Bulgaria or vice versa and the European Commission considers that one country has fulfilled its recommendations then will they keep the CVM in that country until the other country is at the same level? Or will it be just removed in one country? Will these countries also be regarded together by the European community because of their common past or not? Again time will decide on this matter but my opinion is that when they will remove the CVM in the case of Romania they will also do the same thing for Bulgaria. Because both countries were accepted in the European Union at the same time, in both countries the CVM was implemented and both countries were denied access to the Schengen space because of the CVM report from 2012. So in my opinion, when they will remove the CVM for a country they will do the same for the other one as well because they are seen in the same light, as an entity.
This question of interdependence between the two does not only refer to the removal of the CVM but also to the Schengen accession. If Romania receives a better feedback from the European Commission and western countries decide to accept Romania because of that in the Schengen space, what will happen to Bulgaria? Will Romania be rejected because Bulgaria is not prepared yet? Or will Bulgaria also be accepted because of Romania? Regarding this question I think that when Romania will be accepted in the Schengen space Bulgaria will be accepted as well. Besides corruption and other issues this political move also represents a geopolitical problem, so as a consequence the Schengen community will accept both countries in their community at the same time.
Because of the connection made between the requirements necessary to fulfil the CVM and the requirements necessary to join the Schengen space a new question appears: if the CVM will be implemented in other countries that join the European Union, will it be used again in order to prevent that new countries from joining the Schengen space? I consider that the CVM will be used again by western countries to block a country from joining the free movement space, if that is in the interest of those western countries (being in an electoral year, anti-immigration politics, etc). If it happend once it can happen again because the connection made between the CVM and the Schengen was not recognised anyway by the countries that made the connection.