Rule of law after a decade of Eastern Partnership. Let’s talk political change!

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By Corina Rebegea|Washington D.C.

The European Union’s Eastern Partnership Program (EaP) has just turned 10. There were celebrations, but also less congratulatory assessments of how far the six countries have actually gone in their democratic and economic development as a result of this framework. According to the less optimistic evaluations of the EaP’s success, the mechanisms and leverage employed by the EU are insufficient or inadequate to sustain long-lasting reforms, in particular when it comes to the important areas of rule of law and anticorruption agenda. This has caused many analysts to question the true impact of the EU’s involvement in domestic reform processes.

In fact, a consistent body of academic literature has developed over the past decade – somewhat separate from the assessment of the implementation of the EaP– to show that the EU does not actually have the transformational power which the enthusiasts of the enlargement wave of the 2000s thought it would. If that assessment is correct and the EU has actually had only a limited impact in countries that became member states over a decade ago, the prospects for EaP countries could look rather dim.

This analysis will explore some of the main arguments regarding the EU’s (in)effectiveness in transferring good governance and rule of law norms (with a focus on justice reform and anticorruption) and changing societal and political behaviours in the Central and Eastern European (CEE) member states, and the implications for how we interpret the transformations in the EaP countries. Only the three most advanced EaP countries (Georgia, Moldova, Ukraine) will be considered, based on the differentiation principles introduced at the Riga Summit in 2015 and their significant, yet still unsuccessful attempts at Europeanisation and their aspirations to EU membership.

Europeanisation – not so fast!

Europeanisation broadly defined looks at the impact of the EU on domestic politics, elites, and governance structures in member states, and by extension in neighbourhood countries.1   The theory of Europeanisation promised to explain the increasing synchronisation and deeper integration between new member states and the EU’s democratic political ethos. But the realities in the member states in the CEE region and the weakness of the foundations of rule of law, the persistence of corruption and many times fake elite buy-in have led many academics to study how Europeanisation might in fact have failed. Reforms slow down or are overturned once conditionalities, immediate pressure and monitoring disappear. And of course, one can even challenge the assumption of a common European ethos that could be emulated altogether.

What such research has shown is that EU accession, with all the conditionalities and rule transfer that it entailed, is that rule of law became more consolidated and anticorruption efforts were carried out more effectively in countries that were already committed to this path before the process of accession (such as Estonia).

Where institutions, social norms and political behaviours had to be recreated to reflect the principles of rule of law and integrity promoted by the EU, the progress only lasted as far as the conditionalities and the fear of repercussions were consistent.

After EU accession, not only did the pace of reform slow down, but the availability of EU financial resources created even more opportunities for graft and corruption to flourish (see for instance Mungiu-Pippidi 2015).

Some authors even go as far as to suggest that EU conditionality actually had a pathological effect, in that it provided perverse incentives and actually empowered illiberal and anti-reformist elites which were focused more on window-dressing than actual, sustainable change. By imposing the creation of anticorruption laws and institutions, the argument goes, the EU has actually opened up the opportunity to politicise and instrumentalise such laws and newly-created bodies (see Mendelski 2016).

Further, the research and empirical evidence seem to suggest that the introduction of formal rules and institutions has not succeeded in replacing the informal ones that persisted among corrupt political elites and were embedded in the institutional culture. The process of socialisation of EU membership achieved only formal  compliance, while political behaviour continued to display tendencies against the rule of law, and more recently against constitutional liberalism, with Hungary being the most widely cited example.

From Latvia to Poland, to Hungary and Romania, developments since EU accession seem to prove that after the initial boost for independent anticorruption bodies, political elites have returned to their turf war over controlling these potentially powerful tools to take down their adversaries. It was only a combination of civil society activism, independent media and some form of international pressure that prevented a full roll-back of reforms in at least some of these cases.

One final and problematic argument is that of ‘society buy-in’ in both member and EaP countries. Is the EU legitimate or attractive enough for citizens to adhere to the rules coming from Brussels? Perhaps one answer to this question is to be found in opinion surveys which show trust in the EU superseding trust in any of the national institutions. Furthermore, the anticorruption reforms that seem to have worked were those that required changes in behaviour at the society level and not at the higher, political level. Both Romania and Georgia are telling examples. While petty bribes are no longer the norm in many contexts, high-level corruption continues to pose tremendous challenges across the region.

In fact, if we turn our attention to civil society, the picture looks far more encouraging. In attempting to strengthen the rule of law and consolidate the anticorruption bodies, the EU has managed to empower various agents of change in these societies, both formal and informal. It has also created an appetite among citizens to put more pressure on their elected officials and public bodies, and created the appearance of an external force of last resort when civic pressure seemed to fail.

EU pressure has also created the opportunity for the expertise amassed in various parts of society outside the formal institutions and structures of power to emerge and inform the design of conditionalities, of pressure points and of the reforms themselves.2

In conjunction, these factors have produced shifts in perception, and eventually in the exercise of power, which have helped prevent the dissolution of important anticorruption measures. Romania, with all the ‘two steps forward, one step backwards’ progress it has made in anticorruption, as well as Ukraine since 2014, with a similar erratic trajectory, are cases in point: emboldened by the EU, various civil society actors were able to exert enough domestic pressure to prevent the complete reversal of reforms.

The EaP and the EU’s power to create rule of law

What these examples from CEE show is that the development of the rule of law is not a linear process; it takes much longer time and displays far more setbacks than anticipated. They also show the limited sustainability of reform, even when accession is an option or in fact does occur. Particularly in Bulgaria and Romania, the European Commission has maintained a hands-on approach to the rule of law and reform of justice through a Cooperation and Verification Mechanism (CVM), which outlines reform benchmarks and employs incentives and punishments (in terms of suspending EU funds, a measure which has been applied).

The CVM is still in place 12 years after accession, much to the chagrin of many political leaders in the two countries, and since its creation it has evolved from a quantitative approach to a more qualitative one. This involves a better assessment of the political environment in which these reforms are supposed to be implemented. In Romania, for instance, the Commission expanded the scope of the CVM to include evaluations on the roles of parliament and government in creating barriers to anticorruption and rule of law reforms, as well as efforts by politicians to intimidate the judiciary and limit its independence. This reflects the Commission’s ability to learn, even if limited, and to adapt its stiff technocratic tool to an unfavourable political dynamic. This is important to note when designing similar tools for EaP countries.

Not least, these CEE examples highlight the political dimension of Europeanisation. Building democracy, the rule of law and anticorruption will only succeed if there is a shift of power and a structural change inside these countries’ elites.

The EU is more likely to succeed if local elites have a stake in and become committed to the process of fighting corruption and building the authentic rule of law. These elites can be emerging politicians (like in Moldova and Ukraine) or heads of independent judicial or oversight bodies (as in many CEE countries, including Romania) who become personally and professionally interested in such processes.

Also, success is more likely if there are other forces in society, such as independent non-governmental organisations and media, pushing for changes to governance structures and patterns, and going beyond just preventing politicians from overturning important ruleof-law reforms. Cases of broader consensus supporting the rule of law and anticorruption are scarce, but Estonia is a notable success story as it emerges from the former Eastern Bloc.

A typical critique from observers of the EaP’s incentive structure is that accession is missing from the package offered to the three countries, and therefore the enticement to reform is far more limited. In fact, accession cannot substitute for a deeper engagement with political processes (and regime change) that goes beyond policy transfer and governance support. Once again, the CEE countries offer good lessons learned in this respect. Also, this became amply evident in the case of Moldova, for instance.

Since 2015, Georgia, Moldova and Ukraine have embarked on a process of deepening interdependence with the EU through Association Agreements, Deep and Comprehensive Free Trade Agreements and visa-free regimes, to mention the most notable.

Both Georgia and Moldova have been the flag bearers or poster children of the EaP programme at different times, only to slide back shortly after.

Now Moldova is frequently described as a captured state, particularly as almost no progress has been made in bringing to justice the final beneficiaries of the billion-dollar theft of 2014, while important checks and balances are effectively missing, if not completely under oligarchic control. Georgia seems to have also relented (and politicised) its anticorruption focus, and has raised concerns that it is moving toward a particularistic model of power; while Ukraine seems stuck in its attempts to establish independent anticorruption and judicial bodies, the political decision constantly hampering the implementation of such reforms.

In all three EaP countries there is a deep sense that political elites, even those who portray themselves as pro-EU, are in fact acting as veto players and not as enablers of long-lasting reforms. Façade democracy and the instrumental use of the law have often replaced genuine reform efforts. Also, for a long time the EU deliberately avoided engagement with the core of the political regimes in these countries – which, arguably, is where the problem lies – and focused more on the technicalities of the European acquis which these countries had to adopt.

Another major criticism of the EU in the processes of norm transfer and conditionality has been its quantitative approach to the legislation and institutions that needed to be created, rather than the qualitative aspects of implementation and the underlying political mechanisms by which these laws and institutions could be rendered effective (or ineffective). Romania and Bulgaria are good examples of the struggles to narrow the implementation gap and stay on a steady path of reform, particularly in the area of integrity and anticorruption.

Ukraine seems to be following a similar trajectory, and there is much to be learned from the Romanian example as to how long it takes and how many iterations the effort of establishing rule of law and anticorruption institutions and norms actually has to go through. One other important element emerging from this is expectation management: in Ukraine and Moldova managing expectations (especially regarding high-level prosecutions and the recovery of stolen assets) played no part in preparing the public for the slow pace and the disappointment of not seeing the reforms bear fruit in the short or even the medium term.

The empowerment of local agents of change

However, it would be unfair to say that the EU, in cooperation with other multilateral partners and donors, has not learned anything in the accession process (such as with CVM), and now in its deepening ties with the EaP countries. The IMF imposed justice reform and anticorruption conditionalities on loan disbursements to both Ukraine and Moldova, something that is unprecedented in the IMF’s lending schemes. According to Ukrainian civil society, this connection is in fact the most effective way in which political decision makers can be held to their promises.
Also, economic exchanges and trade between EU and EaP countries have increased significantly as a result of Association Agreements and DCFTAs.

This has led to increased interdependence and interconnectedness, changing the dynamic among non-public sector actors such as expert and business communities. While the EU’s focus and approach has still been rather technocratic in nature, this slow process of norm approximation has led to the creation of various change actors across many groups which can maintain pressure on local political elites and offer support to autonomous institutions. The emergence of new civic groups or political parties advocating for anticorruption and good governance can be considered a result of EU engagement as well.

The EU’s gravitational pull: the need for better conditionalities and incentives

Despite the economic and political benefits of the EaP, the setbacks in anticorruption and rule of law are obvious, as is the very fragile equilibrium that keeps countries on the verge of either maintaining a European lifeline or falling over the brink into becoming undemocratic, illiberal political regimes. In tipping the balance in favour of deepening Europeanisation, the EU will also have to be able to accurately and soberly measure its own impact and understand the extent to which sustainable reform is actually dependent on local political factors.

Turning a blind eye to inauthentic commitment and focusing solely on a technocratic approach (as in Moldova in 2010-14), pouring money into discretionary regimes in the absence of true conditionalities and sanctions, allowing oligarchs to launder their money and reputation in the EU, and being unwilling to engage domestic political barriers will not help the EU or its partners. It will not help member states either.

Effective anticorruption is in high demand among citizens of EaP states. Economic ties and political engagement with the West are still in high demand among elites. These constitute opportunities for the EU to rethink its system of conditionalities, as well as its internal process for exerting the right amount of political pressure and engagement. When it comes to enforcing anticorruption norms, the EU may have to increase opportunities for judicial cooperation, so that gathering evidence or even initiating prosecutions concerning high-level corruption could be carried out outside domestic jurisdictions. The new European Prosecutor might offer such an avenue.

Moreover, digesting the lessons of the CEE enlargement and the CVM will be helpful in designing better conditionalities and incentives, as well as in choosing domestic partners (among individuals, NGOs or independent institutions) that can act as true change actors. Also, in measuring the impact of its interventions, the EU could do a better job in balancing counting its technical reforms with the real results of implemented policies. As Ukraine and Moldova consistently demonstrate, merely having a specialised anticorruption body does not guarantee that high-level corruption will be pursued independently and in full respect of rule-of-law norms.

Importantly, many of the things that the EU can do to increase its effectiveness in EaP countries will actually be linked to its own internal governance mechanisms: strengthening transparency and integrity in the allocation and spending of EU funds; instituting better control of off-shore companies and making money flows and beneficial ownership more transparent; dedicating more time to thinking about how to build in a measurement system for its norm-transfer efforts; working more on consolidating civil society groups and a strong independent media; and activating a political dialogue that disingenuous politicians or oligarchs will find harder to manipulate in their favour.

The inward-looking effort is important, since the EU does not act like a monolith and the channels of Europeanisation are not always coherent or coordinated.3

Competing political interests – from EU institutions or member states – are likely to affect the technocratic approach of the Commission, and might play up the weaknesses of the domestic political dynamics in EaP states.

A deeper understanding of the domestic context and a long-term commitment on behalf of the EU – both at the level of the European Commission, but mainly in the political decision-making bodies such as the political groups in the European Parliament or in the Council – is crucial for the success of rule-of-law reform in EaP countries. It will also be crucial for the security of the European continent and the preservation of its democratic governance model based on checks and balances, rule of law and an open society.

Projecting rule of law in times of renewed geopolitical competition

Not least, the EU should not underestimate the geopolitical competition and the role states such as Russia (and in the near future even China) play in making Europeanisation not only less appealing –  through disinformation and propaganda – but also less effective –  through the corruption and cooption of political elites. Georgia, Moldova and Ukraine all have incomplete control over their territory and are or have been subjected to Russian military aggression.

All are on the frontline of the hybrid war being waged by the Kremlin, one of whose main tactics is to undermine the European model of governance, distract these countries from their European path and discredit the value of closer ties with the EU. The EU no longer operates in a geopolitical environment where there is no alternative. Other players are competing for influence on the European continent. Recent money laundering schemes, as well as information operations reaching the core of the EU, should place more emphasis on strengthening the EU’s periphery.

1.Early definitions describe Europeanisation as a “process of structural change, variously affecting actors and institutions, ideas and interests, changes that from a maximalist point of view reflect ‘Europe’ at large, while from a minimalist perspective constitute responses to the politics or policies of the EU” (Featherstone 2003, 3) or as “processes of (a) construction, (b) diffusion and (c) institutionalisation 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 making of EU decisions and then incorporated in the logic of domestic discourse, identities and political structures and public policies.” (Radaelli 2000, 4)
2. See for instance Elbasani and Sabic (2017), discussing the Hungarian case:  “Conditionality only brought the issues that worried civil society from the margins of civic activism to the center of the political decision-making process, while affirming the work of NGOs that were previously denigrated as traitors of the independent republic by the ruling élite.”
3. See for instance Muller 2015: “There is not much by way of a consciousness of common European political space (let alone a shared public sphere where substantive arguments could be debated seriously across borders); it can be hard to get (let alone direct) something like common political attention.”

Bibliography:

Agh, Attila. 2016. ‘The Decline of Democracy in East-Central Europe’ in Problems of Post-Communism, 63:5-6, 277-287

Elbasani, Arolda & Šabić, Senada. 2017. ‘Rule of law, corruption and democratic accountability in the course of EU enlargement’ in Journal of European Public Policy.

Featherstone, Kevin. 2003. ‘Introduction: In the Name of Europe’ in Kevin Featherstone and Claudio M. Radaelli, eds., The Politics of Europeanization, pp. 3-26. New York: Oxford University Press

Mendelski, Martin. 2016. ‘Europeanization and the Rule of Law: Towards a Pathological Turn’ in Southeastern Europe 40(3), 346-384, Brill.

Muller, Jan-Werner. 2015. ‘Should the EU Protect Democracy and the Rule of Law inside Member States?’ in European Law Journal 21 (2), pp. 141-160

Mungiu-Pippidi, Alina. 2015. ‘The Quest for Good Governance: How Societies Develop Control of Corruption’. Cambridge University Press

Radaelli, Claudio M. 2000. ‘Whither Europeanization? Concept stretching and substantive change’ in European Integration Online Papers 4 (8), http://eiop.or.at/eiop/ texte/2000-008a.htm, pp. 1-28
Slapin, Jonathan B. 2015. ‘How European Union Membership Can Undermine the Rule of Law in Emerging Democracies’ in West European Politics 38(3), pp. 627-648

CORINA REBEGEA is Director of the U.S.-Romania Initiative and  Fellow-in-Residence at the Center for European Policy Analysis (CEPA). Corina works on democracy and rule of law issues, good governance and public sector leadership, as well as broader issues of transatlantic security cooperation.

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