By Vasil Vasilev
Introduction
On July 5, 2023, the European Commission announced that it was about to take the final steps to terminate the Cooperation and Verification Mechanism (CVM), which monitored the state of legality in Bulgaria and Romania. A few months later, on September 15, that became a reality with Decision (EU) 2023/1785.
The Cooperation and Verification Mechanism was created because, at the date of accession of Bulgaria and Romania, the two countries practically did not meet one of the most important criteria for membership: the rule of law.
This mechanism was an attempt to introduce the so-called post-accession conditionality. The Commission’s expectation (Article 1) was that national governments were already seriously committed to reform and needed only guidance and time.
Moreover, the annual public “exposure” of the shortcomings of the two countries’ systems was made evident by the CVM reports. Due to these reports, foreign investment has declined, which has made taxpayers more vocal, a fact that should be a sufficient incentive for their governments to make real changes. This has also worked in making Bulgarian politicians take responsibility; in 2017 the Bulgarian PM Boyko Borissov commented on a CVM report by saying “I am certain that by the end of 2018, we will have done everything that the European Commission is asking for”.
The benchmarks set out in the Cooperation and Verification Mechanism are 6 in number and are enshrined in the Commission Decision of 13 December 2006. They relate to the independence, efficiency, and reforms of the judiciary, corruption both at a high level and in general terms, and the fight against organised crime. Over the years, the European Commission has focused its recommendations precisely on these six main areas.
The Flaws Of CVM
Yet, many scholars agree that the mechanism itself was deeply flawed. First of all, there were no repercussions for compliance and non-compliance with the recommendations of the Commission, and the existing repercussions were theoretical and not practical in nature.
As one scholar stated: “there is actually no clear methodology of cooperation – how the findings of the monitoring and evaluation of development/progress will be translated into interaction or assistance for the recipient countries. Which is understandable only in light of the expectation that monitoring will register progress in addressing problems in the monitored areas”.
The six benchmarks used to measure the progress in certain areas overlap, meaning that a measure taken by a member state could reflect in two or more benchmarks, making tracking individual progress complicated. This also means that the measures taken by Bulgaria and Romania are often targeting multiple areas at a time. In their reports, the Commission often mentions that “there is a substantial overlap in these measures”.
The Commission is unable -or unwilling- to adequately identify the obstacles to the rule of law in these member states. The perfect example is ignoring the all-powerful role of the Prosecutor-General. In the Bulgarian Judicial System, there was effectively no mechanism that allowed for the investigation of the Prosecutor-General; the country did rectify this situation, but only after the Commission terminated the CVM.
As stated by Andrey Yankulov, “the monopoly over the decision whether to press charges and the strict hierarchy established by law and solidified by the lasting institutional culture leads to the logical conclusion that the head of the institution will de facto be immune from prosecution, even if such immunity is not provided by law”.
Finally, the inefficacy of the CVM can become evident just by taking a look at the last report about Bulgaria from 2018. In it, we may be tempted to think that the country has undoubtedly made progress on 3 of the benchmarks because they are marked as “provisionally closed“. However, that is not the case as the report added that “continued monitoring is required to confirm this assessment“. The assessments for each indicator mention “measures almost implemented“, and the need in the future to demonstrate “concrete and lasting results“.
Conclusion And Reflections
Orderly compliance with the supranational nature of European law that would lead to an order where the rule of law is one of the main values of a country does not happen naturally.
A convincing reason to integrate into the already constructed order of the European Union is needed in order for states to not only see the advantages of EU membership but also respect the values mentioned in Article 2 TEU, which also include the rule of law.
This can only happen through an instrument that can be triggered quickly. One could argue that the current Article 7 TEU is the mechanism that does precisely that. Yet, in the 30 years of its existence, it has been used sparingly, even in cases where it has been justified. The experience with the Cooperation and Verification Mechanism has proved that more than good intentions are needed to bring about real reforms.
The idea of linking EU funds to the principle of the rule of law, therefore creating a rule of law conditionality, has become a reality. Now, only time will tell if this is the measure that will make member states comply with the rule of law.
The failure of the CVM to bring about the necessary changes in Bulgaria and Romania, and what is happening in Poland and Hungary, proves that such an instrument is badly needed, and as soon as possible.
–
Vasil Vasilev has a BA in European Studies from Sofia University and is currently pursuing a dual Master’s Degree in European Law at Sofia University and The University of Lorraine. He focuses mainly on the political and legal aspects of the European Union and Its Member States.
European Studies Review 