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Deforming
the Reform
Luana Martin-Russu
The Impact of Elites on Romania’s
Post-accession Europeanization
Contributions to Political Science
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Luana Martin-Russu
Deforming the Reform
The Impact of Elites on Romania’s
Post-accession Europeanization
Luana Martin-Russu
European New School of Digital Studies
European University Viadrina
Frankfurt (Oder), Brandenburg, Germany
This publication was supported by funds from the Publication Fund for Open Access
Monographs of the Federal State of Brandenburg, Germany.
ISSN 2198-7289 ISSN 2198-7297 (electronic)
Contributions to Political Science
ISBN 978-3-031-11080-1 ISBN 978-3-031-11081-8 (eBook)
https://doi.org/10.1007/978-3-031-11081-8
©The Editor(s) (if applicable) and The Author(s) 2022. This book is an open access publication.
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Author Notes
This open access book draws on my doctoral research conducted at the Faculty of
Social and Cultural Sciences of the European University Viadrina Frankfurt (Oder)
with my Supervisors, Prof. Dr. Jürgen Neyer, Europa Universität Viadrina and Prof.
Dr. Ulrich Sedelmeier, London School of Economics and Political Science, and
concluded on 18 January 2019.
v
Acknowledgements
This book emerged from my doctoral research at the European University Viadrina
in Frankfurt (Oder), Germany. The aim was to find a narrative that gives a complete
picture of Romania’s post-accession developments while acknowledging the posi-
tive changes that took place in the country since January 2007. I did not want to write
a book on corruption in Romania, and I strongly hope that this study will not be
perceived as such. This book is an attempt to stimulate debate on the long-term
effects of Europeanization and the important contribution of civil society in this
process.
This project has benefitted widely from the support of others. I am deeply grateful
to have been guided and encouraged by my academic supervisor Prof. Dr. Jürgen
Neyer at the Chair of European and International Politics of European University
Viadrina. He gave me brilliant ideas, insightful comments, and valuable suggestions
that shaped the way my arguments were crafted; this project owes a lot to his
intellectual inspiration and his unfailing support. I also want to express my sincere
gratitude to Prof. Ulrich Sedelmeier from the Department of International Relations
at LSE. I am immensely grateful for his willingness to devote his time and share his
expert knowledge and reflections. I owe much to Dr. Camilla Bausch, my all-time
mentor, for encouraging, supporting, and challenging me in many different ways,
and also to all my colleagues at Ecologic Institute Berlin for creating a friendly and
thought-stimulating environment.
This book could not have been written without the financial support of the
Deutscher Akademischer Austausch Dienst (DAAD), whose three-year scholarship
allowed me to put together the intellectual background of the book, and provided the
basis for a later Completion Grant for Doctoral Research from the Ministry of
Science, Research and Culture of the Federal State of Brandenburg. The fact that
the book is available to a broad readership via open access is thanks to the support of
the Publication Fund for Open Access Monographs of the Federal State of Bran-
denburg, Germany; in this regard, I sincerely appreciate the help of Anita Eppelin
and, of course, of my editor at Springer Nature Jan Treibel who were very generous
with their time. Further, very special thanks to Michael Vaughan, whose careful
reading and excellent suggestions have helped more than he realized.
vii
I discussed parts of the book with my very good friends and colleagues, Linda
Walter, Dr. Mitja Sienknecht, Dr. Anne Köster, Dr. Maria Giannoula, and Cătălin
Cantor, and I express my warmest thanks for their insightful comments. Their
theoretical and methodological advice helped me refine my research, while their
moral support helped me carry on. I owe a lot to their inspiration and encouragement.
And finally, this book is dedicated to my family: it was my grandma Zoe who
pushed me forward, my parents Cristina and Liviu who helped me out, and my
husband Alex who held me together.
I thank you all for having filled my journey with enthusiasm and learning, and for
making this project better than what I could have achieved all alone.
viii Acknowledgements
Contents
1 Introduction: The European Paradox of Expecting Corrupt
Political Elites to Lead the Fight Against Corruption ............ 1
1.1 The Limits of Europeanization ........................... 1
1.2 The Eastern European Paradox .......................... 8
1.3 The Structure of the Book . ............................. 12
2 Towards a Theory of De-Europeanization, an Elite-Based
Approach ............................................. 19
2.1 Modelling De-Europeanization .......................... 23
2.1.1 Defining De-Europeanization . . . . . . . . . . . . . . . . . . . . . . 23
2.1.2 Overview of Europeanization Research . . . ............ 28
2.2 An Elite-Based Approach .............................. 46
2.2.1 The Political Elite: A Site of Legislative Power ......... 49
2.2.2 Elite Fragmentation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
2.2.3 Overlapping Interests Linking Elites and Nonelites . ..... 61
2.2.4 Civil Society Bridging the Elite-Nonelite Gap . . ........ 65
2.3 Theorizing De-Europeanization . . . . . . . . . . . . . . . . . . . . . . . . . . 70
2.3.1 The Proposed Theoretical Model . . . ................ 72
2.3.2 Research Design ............................... 76
2.4 Conclusion ......................................... 89
3 Fragmentation: A Trait of the Romanian Political Elite .......... 91
3.1 Recruitment Practices Maintaining an Impermeable
and Disunited Elite ................................... 95
3.2 Institutional Predispositions Towards Dissent . . . . . . . . . . . . . . . . 109
3.3 The Lack of Solidarity and Value Consensus ................ 113
3.4 Elite Fragmentation and Romania’s EU Accession ............ 118
ix
4 Romania’s Justice and Anti-Corruption Reform: A Stubborn
Divergence from European Norms in Pursuit of Personal
Gains ................................................ 123
4.1 The Development of Integrity Laws and the Corresponding
Level of de-Europeanization ............................ 124
4.2 The Elite’s Pursuit of Personal Interests . ................... 135
4.3 The Weak Impact of Civil Society ........................ 142
5 Romania’s Nature Conservation Reform: A Surprising
Convergence with European Law in Response to Societal
Concerns .............................................. 151
5.1 The Development of Nature Conservation Laws and the
Corresponding Level of Europeanization . . . . . . . . . . . . . . . . . . . 153
5.2 The Elite’s Pursuit of Societal Interests . . . . . . . . . . . . . . . . . . . . 167
5.3 The Strong Impact of Civil Society . . ..................... 173
6 Conclusion: Civism Against Cynicism ........................ 183
6.1 The Dynamics of De-Europeanization . . . .................. 185
6.1.1 Theoretical Reflections . . ......................... 185
6.1.2 Conceptual Discussion . . . . . . . . . . . . . . . . . . . . . . . . . . . 187
6.1.3 Limitations and Future Research . . . . . . . . . . . . . . . . . . . . 189
6.2 Anchors of Europeanization ............................ 190
References ............................................... 193
x Contents
Abbreviations
ACDB Association for the Biological Diversity Conservation
ALDE Alliance of Liberals and Democrats
ANANP National Agency of Natural Protected Areas
ANI National Integrity Agency
ANPM National Environmental Protection Agency
APADOR-CH Association for the Defense of Human Rights in Romania—the
Helsinki Committee
Art. Article
BU Republic of Bulgaria
C Cabinet
CD Chamber of Deputies
CEE Central and Eastern Europe
CEO Chief Executive Officer
CeRe Resource Center for Public Participation
CSFR Czech and Slovak Federative Republic
CSO Civil Society Organization
CVM Cooperation and Verification Mechanism
CZ Czech Republic
DCC Decision of the Constitutional Court of Romania
EEC European Economic Community
EST Republic of Estonia
EU European Union
FCC Foundation Conservation Carpathia
FDSN Democratic National Salvation Front
FSN National Salvation Front
GDP Gross Domestic Product
GNM National Environmental Guard
HU Hungary
L Legislature
LAT Republic of Latvia
LIT Republic of Lithuania
xi
MEP Member of European Parliament
MP Member of Parliament
NGO Non-Governmental Organization
OG Government Ordinance
OUG Government Emergency Ordinance
PC Conservative Party
PD Democratic Party
PDL Democratic Liberal Party
PDM Democratic Party of Labour
PDSR Romanian Party for Social Democracy
PiS Prawo i Sprawedliwość Party
PL Liberal Party
PLD Liberal Democratic Party
PLR Liberal Reformist Party
Pl-x nr. Legislative Proposal Number
PMP People’s Movement Party
PNL National Liberal Party
PNL-AT Young Wing of the National Liberal Party
PNL-CD Democratic Convention of the National Liberal Party
PNTCD Christian Democrat Peasant Party of Romania
PO Republic of Poland
PP-DD Dan Diaconescu People's Party
PR Proportional Representation
PRM Greater Romania Party
PRO Pro Romania Party
PSD Social Democratic Party
PSDR Romanian Social Democratic Party
PSRN National Revival Socialist Party
PUR Romanian Humanist Party
QMV Qualified Majority Voting
Reex. Re-examination
RO Romania
S Senate
SAR Academic Society of Romania
SAC Special Areas of Conservation
SCI Sites of Community Importance
SLK Slovak Republic
SLO Republic of Slovenia
SOR Romanian Ornithological Society
SPA Special Protection Areas
SUMAL Integrated Information System for Wood Tracking
TEU Treaty of the European Union
UDMR Democratic Alliance of Hungarians in Romania
UNESCO United Nations Educational, Scientific and Cultural Organization
xii Abbreviations
UNPR National Union for the Progress of Romania
USAID United States Agency for International Development
USD Social Democratic Union
USR Save Romania Union
WWF World Wide Fund for Nature
Abbreviations xiii
List of Figures
Fig. 2.1 A taxonomy of Europeanization ..................................... 24
Fig. 2.2 EU’s policy of conditionality for Central and Eastern Europe . . . . 41
Fig. 2.3 Three types of political influence .................................... 51
Fig. 2.4 The circulation of political elite: patterns of change ............... 57
Fig. 2.5 Relating circulation patterns to elite unity . . . . . ..................... 58
Fig. 2.6 The classical rational choice approach to Europeanization ........ 73
Fig. 2.7 An interest-based approach to Europeanizati on . . . . . . . . . . . . . . . . . . . . 74
Fig. 2.8 The proposed model of de-Europeanization ........................ 75
Fig. 2.9 The proposed model of de-Europeanization (including the
antecedent conditions) . ............................................... 77
Fig. 2.10 Case selection .. . .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. 81
Fig. 3.1 The hierarchical structure of the National Salvation Front ........ 96
Fig. 3.2 The emergence and development of political parties in
post-communist Romania . ........................................... 98
Fig. 3.3 The level of competitiveness in party leadership selection ........ 102
Fig. 3.4 Overview of parliamentary careers in the Romanian
parliament .............................................................. 105
Fig. 3.5 The Romanian cabinets between 1990 and 2020 . .. .. .. .. .. .. .. .. .. 107
Fig. 3.6 Overview of cabinet dynamics and minist erial careers . . . . . . . . . . . . 108
Fig. 3.7 Alternation of major Romanian political parties in power ......... 115
Fig. 4.1 The development of integrity laws—technical procedural
aspects .. .. .. .. ... .. .. .. .. .. ... .. .. .. .. ... .. .. .. .. ... .. .. .. .. .. ... .. .. .. 125
Fig. 4.2 The development of the Draft-laws Amending Art. 25(2)
of Law 176/2010 . .. ................................................... 127
Fig. 4.3 The de-Europeanization of integrity legislation .................... 134
Fig. 4.4 Pre- and post-accession sustainability of Romanian Civil
Society Organizations . . .............................................. 143
Fig. 5.1 The development of nature conservation laws—technical
procedural aspects . . .. .. .. .. .. ......................................... 154
Fig. 5.2 The Europeanization of nature conservation legislation . . ......... 166
xv
Chapter 1
Introduction: The European Paradox
of Expecting Corrupt Political Elites to Lead
the Fight Against Corruption
The only stable state is the one in which all men are equal
before the law (Aristotle)
1.1 The Limits of Europeanization
On 1 January 2007, Romania became a full member of the European Union. The
state that joined the EU was already since 1991 a constitutional republic with a
bicameral Parliament elected by popular vote and with a dual executive formed by a
directly elected president and an appointed prime minister. In the lead-up to its
accession, Romania had to amend and adopt numerous laws in order to bring them
into line with the EU’s basic requirements for its member states. The body respon-
sible for overseeing the constitutionality of these laws was the Romanian Constitu-
tional Court, an extra-judiciary body with judges appointed by the president and
each of the two parliamentary chambers, tasked with reviewing acts adopted by
lawmakers and often arbitrating disputes that failed to be negotiated politically.
Romania’s basic law provides guarantees of political pluralism, of checks and
balances in the political system, and of a clear separation of powers, with its
representative authorities constitutionally required to act in the public interest.
However, post-accession, it became clear that in certain areas, laws that had been
implemented in order to meet EU standards were being undermined or reversed by a
self-serving political elite.
The people that became EU citizens in January 2007 enjoyed long before
accession the right to vote for their representatives, with fair, free, competitive and
reasonably well organized elections being held every 5 years for president and every
4 years for the Parliament. However, electing representatives does not always mean
having their interests represented. Indeed, since then, there has been an increasingly
low level of public trust in political representatives, which stems mainly from a lack
of appropriate governance. Rather than losing hope though, in the last 15 years
citizens started to take matters into their own hands, with civil society organizations
taking up the role of policy implementers. For example, independent media was
saved by the engagement and dedication of journalists who attracted donations in
©The Author(s) 2022
L. Martin-Russu, Deforming the Reform, Contributions to Political Science,
https://doi.org/10.1007/978-3-031-11081-8_1
1
support of independent outlets; a non-governmental organization (Dăruiește Viață)
raised funds for building, without state help, a much needed children’s hospital,
which turned out to be the best equipped hospital in the country until now; another
non-governmental organization (Code for Romania) offered its services pro bono to
the government, deploying in the shortest time an entire digital ecosystem to inform
and support citizens affected by the COVID-19 pandemic; and more recently a great
number of non-governmental organizations and volunteers mobilized to welcome
and assist the more than half a million refugees that crossed the border fleeing the
war in Ukraine. The people that became EU citizens in 2007 did exercise their right
to free movement, with more than 20% of the population emigrating to live and work
in other member states during the last 15 years. They remained, however, politically
engaged: they queued for hours to cast their ballot when too small a number of
polling stations were established across Europe, and in 2018 they returned sponta-
neously to Bucharest to stage an unprecedentedly large-scale diaspora protest against
the government and its failure to curb high-level corruption.
After 7 years of accession negotiations followed by another 15 years of full EU
membership, Romanian representatives still prove to be incapable of meeting voter’s
demands for responsible and responsive law-making and of ensuring the rule of law.
In its most recent report of 2021, the European Commission raised concerns about
the slow pace of the member state’s judicial reform, the ongoing necessity to
enhance the legal framework for the fight against high-level corruption and more
generally highlighted the need for the stable separation of powers. The independence
of Romanian judicial authorities and anti-corruption agencies was questioned over
and over again in Commission’s reports, demonstrating that Romania’s political
elites themselves are hardly above suspicion when it comes to corruption. Almost
every Romanian government formed after January 2007 has faced charges of graft
and corruption against one or more of its ministers; in addition, numerous members
of parliament and high-ranking dignitaries are serving prison sentences for offences
involving misuse of public office, and many more would face prosecution if they did
not enjoy freedom from civil arrest under parliamentary immunity. Furthermore,
relevant bills in the field of justice reform continue to be passed through Government
Emergency Ordinances, allowing the executive to legislate by decree, bypass the
regular legislative process and parliamentary consideration, and preclude public
discussion on matters of great political salience. To what extent can Romania’s
lingering problems in such key policy fields as justice and anti-corruption be
regarded as a predictable post-accession syndrome? Could it have been anticipated?
How can it be explained? The European Union cultivates democracy and respect for
rule of law as its core values and its member states willingly bind themselves to share
these values, while candidate states (particularly since the previous three enlarge-
ment rounds) have to meet high democratic standards upon their accession. Is EU
membership not the guarantee for balance, genuine reform and the subsequent
implementation of European norms that it intends to be?
The post-accession developments in Hungary and Poland, among other states,
make these questions appear somehow futile and naïve. After the election of 2010,
which brought a complete victory for the Fidesz party, Hungary started a radical and
2 1 Introduction: The European Paradox of Expecting Corrupt Political...
widely criticized revision of its constitution. Supported by more than two-thirds of
the members of parliament, Fidesz used this supermajority to capture the Constitu-
tion and turn it into a mere instrument to maintain control and silence opponents.
1
Five years later, Poland set on a similar path towards a so-called liberalization of its
constitutional order.
2
After 2015, when the Prawo i Sprawedliwość (PiS) party won
the parliamentary elections with an outright majority, Poland started to introduce a
series of legislative amendments with questionable democratic credentials, which
significantly affected the structure of the justice system and the functioning of the
Constitutional Tribunal.
3
It did not make any significant changes to the basic law,
but developed instead a routine of ignoring it
4
while at the same time insulating its
own actions from any constitutional scrutiny. Employing different legislative tools
and practices, Poland reached the same result as Hungary: a centralization of power,
a weakening of checks on executive discretion and a departure from the rule of law.
Disregard for the rule of law is unfortunately far from exceptional among European
Union (EU) members;
5
the developments in the two member states have been
singled out here, however, because they triggered an unprecedented institutional
reaction. Article 7(1) of the Treaty of the European Union (TEU) was activated by
the European Commission against Poland in December 2017
6
and by the European
Parliament against Hungary in September 2018,
7
invoking a clear “risk of a serious
breach”of European values, such as democracy, the rule of law, and the protection
of fundamental rights.
8
Several resolutions were adopted by the Parliament and
several recommendations were issued by the Commission within its Rule of Law
Framework,
9
all aimed at highlighting the two states’deviations from the rule of law,
initiating a dialogue and proposing remedial measures which, however, met with
very disappointing results. Without going deeply into the background of these cases,
suffice it here to admit that the long years of action and reaction between the EU and
the two member states ultimately show that it would be a mistake to consider
membership in itself to be a guarantee of successful implementation of European
laws and full alignment with the Union’s values. Even beyond such cases of
governance taking obviously illiberal directions, the substantial heterogeneity in
the preferences, interests, capabilities and institutional traditions of the states
forming the European Union makes it very likely for each and every member to
1
Kochenov (2021: 137).
2
Bień-Kacała (2021).
3
Koncewicz (2018) and Sadurski (2018).
4
Kochenov (2021: 137).
5
Lachmayer (2017), Ioannidis (2017), and Vachudova (2016).
6
European Commission (2017a).
7
European Parliament (2018).
8
For an excellent assessment of the strengths and weaknesses of Article 7 TEU see
Kochenov (2021).
9
European Commission (2014a).
1.1 The Limits of Europeanization 3
be, at times, in certain policy areas and for certain periods of time, reluctant to bear
the costs of compliance.
10
Where laws are concerned, while the responsibility for the transposition and
implementation of the acquis rests largely with the member states, the European
Union does have a system for securing rule transfer. It has at its disposal a number of
mechanisms in order to ensure the successful transposition and implementation of its
laws. Either through learning, socialization, consultation, expertise, negotiation,
capacity building, but most importantly through monitoring and sanctioning, the
Union proves largely efficient in bringing member states into compliance.
11
A much
weightier challenge to be met with a much narrower set of tools is ensuring
commitment to European values, democratic standards and constitutional principles,
an endeavour which largely falls beyond the scope of the enforceable acquis.
12
Abuse of power, corruption and poor administration are said to represent fundamen-
tal challenges to the core democratic principles of the European Union, likely not
only to disturb the implementation of the acquis communautaire, but also to affect
the proper functioning of the single market. Therefore, the EU has attached—and
continues to attach—a high priority to states’good governance practices and their
commitment to the rule of law, justice and democracy; it remains limited, however,
in its power to see these priorities carried out in the member states.
13
It was with the introduction of the Copenhagen criteria in 1993 that the EU
tightened its accession requirements to include not only economic conditions for
establishing a functioning market economy, but also value-driven political condi-
tions amenable to maintaining institutional stability and a well-balanced constitu-
tional system; respect for rule of law and the protection of national minorities were
regarded as highly relevant indicators of democratic stability. In effect, the Copen-
hagen criteria marked a shift away from taking for granted democracy and the rule of
law and towards laying down a broader set of political principles to guide EU
accession. The Union requested from its candidates to membership an ex ante
proof of their capacity to nurture a stable democracy, institutional and legislative
equilibrium and respect for human rights. Introduced in the context of eastern
enlargement, this type of conditionality
14
required states to prove their democratic
credentials before accession negotiations were opened. The EU thus offered the
Central and East-European candidates a viable path towards membership only if they
were able to prove their democratic maturity and conditional upon the fulfilment of
certain acquis-related criteria. By responding positively to their application and by
opening the accession negotiations, the EU acknowledged their capacity to establish
a stable democratic order and rule of law, as well as their willingness and ability to
10
Börzel (2002: 195).
11
See Börzel et al. (2010), Hartlapp (2007), and Börzel (2003).
12
Kochenov (2017: 430–1).
13
For a wide range of perspectives and solutions to this problem see the contributions in Closa and
Kochenov (2016).
14
What Schimmelfennig and Sedelmeier (2004) term as ‘democratic conditionality’.
4 1 Introduction: The European Paradox of Expecting Corrupt Political...
fully implement the acquis communautaire, i.e. their readiness to become full
members.Implicit in the Copenhagen criteria was thus the expectation for states to
align with basic democratic principles and the rule of law already during accession.
What is more, the European Commission not only extended the scope of its
conditionality during the eastern enlargement, but also strengthened its mechanisms.
Along with the broadened conditionality, the Commission developed stronger and
more targeted mechanisms to ensure compliance at the time when states were
bidding for membership. The dividing up of the enlargement process into distinct
stages proved to be an important innovation, as it allowed the Commission to attach
conditions to every stage, which provided a major momentum for aspiring members
to maintain their reform efforts.
15
Given the number and the very diverse nature of
aspiring countries, the Commission constantly re-adjusted its bargaining strategy
during the eastern enlargement process; as a result, reform demands and the intensity
of conditionality varied significantly across time and from candidate to candidate.
The Union’s approach to eastern enlargement thus combined a rule-governed pro-
cess with clearly established accession criteria, but preserved a significant degree of
discretion in interpreting and applying these rules.
16
By means of regular monitoring
and benchmarking, the Commission not only assessed candidate states’reform
performance, their democratic stability and their respect for rule of law, it also
singled out for each aspiring country individual conditions for access to the Union,
the Schengen area or other types of rewards.
However, regardless of how successfully this values-enforcement-mechanism
was used in the pre-accession context to ensure candidate-states’compliance with
core EU principles, it had no implications for states once they joined the Union. The
higher the hopes associated with the Copenhagen criteria for rule of law observance
and good democratic governance, the greater the disappointment with the EU’s
inability to impose the same standards once states gained full membership. An
answer to this so-called Copenhagen dilemma was the establishment in 2014 of
the above-mentioned Rule of Law Framework,
17
an early warning instrument
applicable to all member states and aimed at triggering and guiding dialogue in the
event of a serious threat to the Union’s values. The ongoing situation in Hungary and
Poland stands as proof, however, of the fact that the light-touch
18
of the mechanism
falls short of an effective control of member states’respect for the rule of law.
In this context, Romania stands out as an EU member whose leaders (like in the
case of Hungary and Poland) attempted to weaken the institutional checks and
balances and capture the constitution,
19
but whose attempts (unlike in the case of
Hungary and Poland) were effectively blocked, apparently by virtue of EU’s
15
Steunenberg and Dimitrova (2007: 11).
16
Papadimitriou and Gateva (2009: 153).
17
European Commission (2014a).
18
Kochenov and Pech (2015).
19
Müller (2015); Perju (2015).
1.1 The Limits of Europeanization 5
Cooperation and Verification Mechanism (CVM).
20
Arguably, CVM, which was
applied only to Romania and Bulgaria, proved one of the Union’s most successful
instruments for values-compliance, enhancing the enforceability of the democratic
acquis. Romania’s trampling on the rule of law was allegedly halted by the EU’s
conditionality being extended, through the CVM, to the post-accession period.
Romania has since been subject to this vertical post-accession conditionality
mechanism, which keeps the state under political pressure, a threat of concrete
sanctions and a constant monitoring and benchmarking. The CVM will be effec-
tively discontinued only once all the established benchmark criteria have been met:
(1) to ensure a more transparent and efficient judicial process; (2) to establish an
integrity agency with the responsibility to verify assets, incompatibilities and iden-
tify potential conflicts of interest, and to issue mandatory decisions on the basis of
which dissuasive sanctions can be taken; (3) to build on progress already made and
to continue to conduct professional, non-partisan investigations into allegations of
high-level corruption; (4) to take further measures to prevent and fight corruption, in
particular at the local government level. Should Romania fail to adequately address
these benchmarks, the Commission is empowered to apply safeguarding measures as
provided for in the country’s Accession Treaty, which will subject the member state
to potential cuts in EU aid or lead to non-recognition of its judicial decisions.
21
Given these developments in the EU’s mechanism of conditionality as extended
to the post-accession period, Romania is deemed reasonably likely to remain com-
pliant with European laws and values.
22
The fact that it is subject to stricter
monitoring while still having a weak capacity to bear the costs of infringement
procedures or financial sanctions, along with the fact that it is eager to build a
reputation as a good member, both raise expectations with regard to its compliance
record. After a long period of accession negotiations and more than a decade of
monitoring and reporting in the area of justice and anti-corruption, it would only be
plausible to assume that Romania is close to completing its judicial reform, thereby
setting an example for the successful implementation and enforcement of the EU’s
democratic acquis.
Yet, an in-depth analysis of its legal compliance performance after January 2007
throws into question the effectiveness of the accession and post-accession condi-
tionality in bringing about lasting reform. The case of Romania reveals that in the
field of public integrity and anti-corruption, the country has not necessarily
progressed since its accession, but in fact has been subtly backsliding in terms of
transposition and implementation of EU legislation in these key areas. Already in
20
Questioning their justice-reform portfolios and anticipating that the South-East European candi-
dates would face even higher implementation costs than those faced in Central and Eastern-Europe,
which would make them more reluctant to implement deep domestic or administrative reforms, the
European Commission introduced back in 2006 a much stricter regime for inducing compliance in
Romania and Bulgaria. Both member states are still subject to this post-accession conditionality.
21
European Commission (European Commission, 2007a, b: 3).
22
Buzogány (2021), Lacatus and Sedelmeier (2020), Vachudova (2016), and Epstein and
Jacoby (2014).
6 1 Introduction: The European Paradox of Expecting Corrupt Political...
2012, the Commission, in its assessment of Romania’s developments under the
Cooperation and Verification Mechanism during the first 5 years of EU member-
ship,
23
raised serious concerns about the member state’s failure to establish an
independent judicial system and to respect the rule of law, questioning the state’s
reliability and the sustainability and irreversibility of its reform process. The Com-
mission’s 2012 report
24
took note of inconsistent jurisprudence, difficulties with
enforcement and inefficient judicial practices, but more importantly it noted the
prevailing political challenges to judicial decisions, the recent attempts to undermine
the Constitutional Court, the growing disregard of the political elite for established
law-making procedures, the repeated refusals of the parliament to allow the opening
of criminal investigations against parliamentarians who are current or former Min-
isters, and the growing number of parliamentarians still holding their seats in
parliament whilst being convicted of serious offences. In the same vein, the report
marking the tenth anniversary of the Cooperation and Verification Mechanism
25
questioned the judicial independence and the authority of court decisions in Roma-
nia, and more importantly, it pointed out with even greater emphasis the specific
attempts to reverse reforms, which have inevitably led Romania further away from
meeting its objectives. The Commission’s latest report of 2021
26
cautions against
several amendments to Justice laws that are still in force and that have a serious
negative impact on the independence of the judiciary and on the quality and
efficiency of the justice system in general. It notes as well the fact that the adopted
Codes of Conduct for parliamentarians are insufficient in preventing disregard for
judicial independence in the parliamentary process, and raises serious concerns
about an established pattern of triggering disciplinary proceedings against judges
or public prosecutors that oppose the direction of the judicial reform. At the same
time, as the report signals, important challenges remain as to the sustainability and
irreversibility of the fight against corruption.
As the following analysis will show, an inquiry into Romania’s post-accession
public integrity reform, and its legislative practices in general, provides evidence of
the country’s convergence with European rules and requirements, yet not without
divergence, as the member state’s progress is inconsistent, unsustainable and thus
uncertain. Romania’s evolution under the Cooperation and Verification Mechanism
presents a mixed picture of significant improvement and abrupt reversal of reform;
the country appears to be responding to external pressure without genuine commit-
ment, thereby undermining the relevance and credibility of reform. Its post-
accession instances of regress make the case of Romania particularly interesting
for studies on Europeanization and its potential to trigger genuine reform and
sustainable change, above all due to the fact that such instances of reversal are
much more subtle, hidden behind legislative and procedural cosmetics. Putting all
23
European Commission (2012a).
24
European Commission (2012a).
25
European Commission (2017b).
26
European Commission (2021a).
1.1 The Limits of Europeanization 7
things in balance, it can be established that after January 2007 Romania experienced
a backslide of its public integrity reform, executed through well-concealed attempts
to subvert the legislation by means of procedural manoeuvres and through a
non-linear approach to reform reversal. The state’s development in terms of justice
and anti-corruption during the post-accession period was marked by an alternation of
progress and regress, understood here as a methodical persistence to offset uncom-
fortable Europeanizing change. Starting from observed instances of this kind of
reform reversal, the following pages will uncover the factors that can account for
these post-accession setbacks.
Romania is definitely not an isolated example of de-Europeanization: declining
trends can be observed in Bulgaria, which is similarly subject to post-accession
conditionality, as well as in other new, Central and East- and Southeast-European
member states, all of which reveal mixed reform records at best.
27
Recent studies and
reports
28
document in fact a deterioration over the last decade of the democracy
scores of almost all countries that joined the European Union in 2004 and 2007. The
Romanian case, as presented here, is relevant in this context not for the fact that it
adds yet another example of post-accession backsliding, but rather that it exposes
more elusive forms of reversal observable only through a detailed inspection of the
reforms as adopted and amended at the domestic level. While it is not specifically a
study on de-democratization, this research does also contribute to the current debate
on democratic backslide,
29
by revealing patterns of defective behaviour where free
elections are held and where the appearance of democratic checks and balances is
fully maintained.
1.2 The Eastern European Paradox
How surprising is it after all that countries with relatively high levels of corruption
fail to successfully implement EU-led democratic reforms? Why would one expect
corrupt political leaders to acknowledge the negative impact of corruption and
genuinely commit to combating the issue by making real efforts to meet strict EU
requirements and high rule of law standards? Studies on Europeanization claim that
the European Union can successfully trigger and stabilize anti-corruption reforms in
Central, Eastern and South-Eastern Europe using its pre- and post-accession lever-
age. They rely on both the idea of broader and stronger compliance-inducing
mechanisms, with an extended conditionality for Romania and Bulgaria, and on
the idea of a path-dependency inherent in the European policy-making process.
27
Lacatus and Sedelmeier (2020), Anghel (2020), and Börzel and Fagan (2017).
28
Rich sources of data are the reports published by the Bertelsmann Foundation, the Economist
Intelligence Unit, the Freedom House Nations in Transit, or the V-Dem Democracy Reports.
29
Bogaards (2018).
8 1 Introduction: The European Paradox of Expecting Corrupt Political...
Much of the early literature on enlargement-led Europeanization pays close
attention to EU-level factors that explain the adoption of wide-ranging reforms
being undertaken by states in Central and Eastern-Europe while bidding for mem-
bership; domestic change is thought to be generated at the EU level as a top-down
process and triggered through the policy of conditionality.
30
Relying on this assump-
tion and building their argument on a rational-choice perspective, most approaches
to Europeanization East emphasize the existence of an identified level of
misalignment between the Union and the candidate states, which evokes adapta-
tional pressure from the EU, which further translates into reform achievements at the
domestic level in each respective state. This external adaptational pressure is
assumed to be an important factor setting in motion domestic reform processes.
Following such a strategy of reinforcement by reward,
31
the EU offers candidates
the opportunity for membership in exchange for compliance with its conditions. As a
response, candidate-states, being utility-maximizers, seek to secure the benefits of
EU membership, and consequently bear the costs of adapting and implementing
reforms, even when they pose challenges as difficult as implementing anti-
corruption reforms in a corrupt context.
What happens, however, after a state’s accession to the Union, when EU mem-
bership can no longer be used as a conditional incentive for compliance with
European requirements? Following largely the same logic, the scholarship assessing
the dynamic of states after they gained full EU membership continues to
overemphasize the importance of external incentives in triggering and maintaining
reform. Researchers are hopeful with regard to the ongoing monitoring and
benchmarking through the Cooperation and Verification Mechanism (CVM) for
Romania and Bulgaria, which is thought to be successful in preventing a shift
from compliant pre-accession behaviour towards an abrupt post-accession diver-
gence.
32
Moreover, it is often assumed that the changes adopted before accession
remain in place after it. Existing reforms (as opposed to the reforms not yet adopted
by a candidate- or a member-state) are thought to be locked in,
33
their dismantlement
inevitably incurring additional costs states are unwilling to pay. Such an assumption
leads scholars to anticipate a slow-down or even a halt in the adoption of new
reforms at the domestic level after a state’s accession to the EU, but generally to
exclude the possibility of reform reversal. Research in the field retains a remarkable
optimism with regard to the success of already undertaken reforms, as long as the EU
rewards or sanctions outweigh domestic adjustment costs.
34
30
Sedelmeier (2011), Gateva (2010), Papadimitriou and Gateva (2009), Sedelmeier (2008),
Pridham (2007b), and Steunenberg and Dimitrova (2007).
31
Schimmelfennig and Sedelmeier (2005).
32
Schimmelfennig and Sedelmeier (2020), Lacatus and Sedelmeier (2020), Vachudova (2016), and
Spendzharova and Vachudova (2012).
33
Sedelmeier (2012).
34
Schimmelfennig and Sedelmeier (2020).
1.2 The Eastern European Paradox 9
This optimism is, however, not always mirrored by reality. By discussing domes-
tic costs-benefits calculations in broad general terms, much of the existing literature
remains blind to the fact that dismantling reforms might incur high societal costs,
while at the same time producing benefits for the members of the political elite. The
costs-benefits calculations of the political elite do not always take account of the
benefits or costs at a societal level. Particularly in states affected by high-level
corruption, claims of successful Europeanization in the area of justice and public
integrity remain highly counter-intuitive. The priority attached by the EU to the rule
of law and judicial reform, and its pressure for change exerted through the CVM, can
hardly eliminate the fundamental incentive of self-interested lawmakers to exploit
the political process in pursuit of personal benefits. A self-serving political elite
would obviously be unwilling to genuinely commit to the implementation of sub-
stantial anti-corruption reforms, regardless of the fact that this is to the benefitofthe
wider society and in line with European requirements.
This book seeks to challenge the assumption that changes made pre-accession
remain in place, being too difficult or costly to reverse.
35
In line with more recent
approaches to Europeanization,
36
it proposes instead a theoretical model that con-
tends that the course of Europeanizing reform depends on political will and on the
interests pursued by legislators at the domestic level. It demonstrates how political
elites, on the basis of their personal preferences alone, can easily reduce legal
compliance and reverse formally adopted laws. Unsuccessful policies are not nec-
essarily a consequence of limited institutional capacities, unclear or obtuse drafting
or inefficient implementation of law. They may just as well result from legislators’
instrumental use of policies and of the democratic framework to extract personal
benefits that go beyond holding power or gaining electoral returns. Based on an
interests-centred theoretical framework and supported by detailed empirical evi-
dence as to the preferences of political elites as opposed to those of the broader
society, this book helps us to understand why a lock-in of Europeanizing reforms is
not always successful. Such an analysis becomes even more relevant in the present
context, when the EU prioritizes a shift from promoting to preserving
Europeanization in Central and Eastern Europe.
This approach puts the effectiveness of conditionality in a new light, drawing
attention to the possibility for domestic change to be carried out reluctantly by
political actors interested in seizing other opportunities than those derived from
convergence with the EU. Change might conveniently be pursued for as long as it
serves the interests of the elite, with positive reforms being reversed when they no
longer produce such benefits. A state where an already adopted reform is later
gradually and subtly reversed, as in the case of Romania, can hardly be regarded
as involuntarily non-compliant. Such a departure from European norms or standards
35
Sedelmeier (2012).
36
Innes (2014), Sedelmeier (2014), Noutcheva and Aydin-Düzgit (2012), and Spendzharova and
Vachudova (2012).
10 1 Introduction: The European Paradox of Expecting Corrupt Political...
can hardly be blamed on the lack of institutional and administrative capacity
37
since
any such lack of capacity to adapt to European conditions would have prevented
Romania from adopting reforms in the first place. It is much more likely that the
observed post-accession defection is intentional, which in turn casts a different light
on the state’s pre-accession commitments to compliance. Members of the political
elite might have pushed for reform during the state’s accession phase, knowing that
they can dismantle these reforms after achieving full membership. In this context, it
seems reasonable to distinguish between delivering sound and substantial reform
and implementing numerous reform steps that are intentionally superficial, designed
to gain certain rewards and aimed at being reversed or diluted after the benefits have
been reaped. The following fine-grained analysis of two areas of reform, with an
in-depth inquiry into the interests pursued at the domestic level during reform
processes, yields valuable insights into Romania’s compliance performance and
explains the co-existence of substantial reforms in certain areas with subtle
de-Europeanization in others.
However, assuming that the interests of political actors alone can determine the
course of reform and the success of Europeanization would be unreasonable.
Therefore, in studying Romania’s de-Europeanization, the following pages will
draw on early Europeanization literature
38
and go on to develop a theoretical
framework which moves beyond existing research by linking Europeanization
studies with elite theories. It demonstrates a causal link between the pursuit of
personal interests by the domestic political elite and the more structural result of
de-Europeanization, and accommodates the interplay between actors and structures.
It stresses the crucial role played by domestic political elites in bringing the social
and legal reality in line with EU requirements, and identifies a range of structural
factors that trigger a self-interested behaviour of the elite, their abuse of power and
their readiness to sacrifice societal well-being for narrow personal benefits. The book
is an inquiry into the motivations that drive legislators to make particular decisions
on the one hand, and into the structural characteristics and dynamics of the elite that
invite a selfish rather than responsible and responsive behaviour on the other. Such
an approach provides a more accurate conceptualization of Europeanization, by
drawing on factors not usually considered in the literature, primarily that of elite
interests, but also factors such as fragmentation, elite permeability, inter-institutional
frictions, value-consensus and the linkages between elites and nonelites. The com-
bined effect of these factors is uniquely able to explain Romania’s shift from
Europeanization to de-Europeanization in certain areas of reform (i.e. the public
integrity and anti-corruption reform) and not in others (i.e. the nature conservation
reform). Thereby it directs attention to the evident fact that in states plagued by high
level corruption, a genuine anti-corruption reform cannot be carried out by the
allegedly corrupt political elite.
37
Buzogány (2021) and Börzel et al. (2010).
38
Börzel and Risse (2000).
1.2 The Eastern European Paradox 11
Romania’s persistently disappointing corruption scores and record of democratic
rule
39
provide reasons to believe that the domestic political elite might not be
genuinely committed to adopting sound integrity reforms, despite the EU’s pre-
and post-accession conditionality. If we acknowledge the fact that corruption on a
grand scale was and still remains a daunting challenge in Romania 15 years after the
state’s EU accession, it seems pertinent to question the extent to which a problem can
be expected to be solved by those who are themselves embroiled in the problem. It is
on these grounds that the interests of the political elite in Romania are here assumed
likely to run counter to societal expectations, especially in the fields of public
integrity and anti-corruption reform. Despite its positive pre-accession trend, Roma-
nia has since remained vulnerable to reversals of its reforms, which casts doubt on
whether the Romanian political elite was ever committed to the EU-driven justice
reform, to tackling the problem of corruption and the lack of public integrity, to
showing respect for the rule of law and to governing according to the interests of
Romanian society.
1.3 The Structure of the Book
This book undertakes to find an empirically convincing explanation for Romania’s
post-accession selective backtracking. It reconsiders the state’s compliance record in
two areas of reform through the careful scrutiny of the legislative amendments
adopted during the last 15 years, and the various motivations that drove them. It
outlines the high emphasis placed by the EU on the incorporation of its rules and
standards into domestic legislation, and contrasts this with Romania’s questionable
and inconsistent legislative performance. Finally, it shows that the European Union’s
policy of conditionality, however assertive or extensive, cannot guarantee compli-
ance with its rules unless domestic political elites are committed to reform.
40
The link between the EU’s use of external incentives and the individual interests
of domestic decision-makers in pursuing change is here developed into an overall
theoretical model, where EU-driven reforms thrive under supportive domestic insti-
tutional frameworks with few veto players and a strong political will for domestic
change; they are in turn reversed as soon as domestic political elites favour short-
term individual gains over European norms and objectives, as well as over the
interests of the society at large. The conceptual core of this model is founded on
the idea of personal interests pursued by the political elite. Inquiring into the personal
interests of the elite follows from the assumption that representatives, when adopting
39
A V-Dem country analysis with the control of corruption and the Liberal Democracy Index as
indicators (https://www.v-dem.net/en/analysis/CountryGraph/) as well as the World Bank’s World-
wide Governance Indicators for Romania (https://info.worldbank.org/governance/wgi/Home/
Reports) show a low and slightly fluctuating governance score for Romania since 2007.
40
Innes (2014), Sedelmeier (2014), and Spendzharova and Vachudova (2012).
12 1 Introduction: The European Paradox of Expecting Corrupt Political...
Europeanizing reforms, do not always act in the interests of the represented. The
theoretical argument in fact builds on the contradiction between the interests of the
domestic political elite and those of society. This is not to claim that the decisions
adopted by the elite necessarily contradict or ignore societal interests, or that the
decisions serving the common good cannot be motivated by self-interest. The
argument singles out those instances when political decisions run counter to both
European norms and the preferences of the electorate, thus hindering
Europeanization and distorting political representation.
This argument, its theoretical anchoring and its empirical substantiation on the
case of Romania, are developed in this book in four consecutive steps. First, after a
brief terminological introduction to the concept of de-Europeanization, Chap. 2
offers a critical analysis of the existing scholarship, focusing in particular on the
studies covering Eastern Europe and locating them in the wider context of
Europeanization research. Two major gaps are identified in the literature: one is
the lack of a theoretically grounded model of de-Europeanization substantiated
through fine-grained analyses of domestic transposition; the other is the lack of
sufficient empirical research on the relevance of domestic political elites for the
success and stability of EU-led reforms. The chapter illustrates how this study
bridges these gaps, proposing a theoretical framework that explains selective back-
sliding and links reform reversal (the dependent variable) with the elite’s pursuit of
individual interests (the independent variable). This theoretical framework builds on
the classical rational-choice model of top-down Europeanization proposed by Börzel
and Risse,
41
which has been echoed—though not always explicitly—by numerous
scholars focusing on Eastern Europe; it reconstructs this model to accommodate an
explanation for reform reversal under the impact of the individual preferences of the
domestic political elite.
This revised model of Europeanization stresses the crucial role played by domes-
tic political elites in bringing the social and legal reality into line with EU require-
ments. It identifies a range of structural factors that makes the self-interested
behaviour of the elite more likely, abetting their abuse of power and their readiness
to sacrifice societal well-being for narrow personal benefits. Three factors in partic-
ular, subsumed under the concept of elite fragmentation, are identified as relevant
conditions that invite the pursuit of personal interests: first, the circulation of the
political elite, with a profound influence on the composition of the ruling stratum and
indirectly affecting the conduct of its members; second, the institutional context in
which elites are situated, which—if marked by conflicts of interests instead of cross
institutional synergies—may affect the group-dynamics causing the elite to disinte-
grate and engage in self-serving behaviour; and third, the linkages between the elite
members with a particular emphasis on their respective levels of solidarity and value
consensus influencing the stability and predictability of their choices. This detailed
study of the composition and dynamics of political elites allows for a nuanced
understanding of elite fragmentation and invites reflection on the intuitive
41
Börzel and Risse (2000).
1.3 The Structure of the Book 13
assumption that corrupt elites are united. The uniform behaviour of elites in their
corrupt practices (i.e. cross-party efforts to undermine anti-corruption legislation and
democratic institutions) is in itself a sign of enhanced elite fragmentation rather than
cohesion, as the ties between elite members rely solely on volatile short-term
interests. The analysis goes beyond the level of fragmentation within the ruling
stratum however, being complemented by an inquiry into the nature of the relation-
ship between representatives and represented, between elite and nonelite, taking into
account the extent to which elites and nonelites are congruent in their values and
interests, as well as the role played by the nonelite (e.g. civil society) as a control
factor that secures the responsiveness of the elites to societal needs and wishes. In a
nutshell, the theoretical Chap. 2invites a careful observation of the relationship
among elite members and between elite and nonelite. It postulates that the pursuit of
personal interests is more likely to occur in an over-fragmented ruling stratum and is
only possible when there are no constraints put in place by civil society.
Chapter 3starts the empirical analysis by examining the structural factors that
influence the composition and conduct of the Romanian political elite. Its high level
of fragmentation during the pre- and post-accession years results from a narrow and
shallow circulation pattern, from conflicting institutional or organizational interests
and from a lack of value consensus among elite members. All these factors culminate
in the pursuit of narrow particular interests at the highest levels of decision-making,
leading to the failure of democracy even where democratic institutions are in place.
This second part of the book shows the political environment in which EU-driven
reforms are carried out to be one that is characterized by intra-party and inter-
institutional dissension, as well as ideological inconsistencies. The concept of
fragmentation offers an interpretative frame for the observation and evaluation of
these intra- and inter-organizational dynamics. Romania provides a revealing exam-
ple of over-fragmentation: a political climate of distrust, uncertainty and
unpredictability that favours self-interested behaviour, and in which elected elites
can be bound neither to take account of the preferences of their own party, nor to take
into account the concerns of their electorate. Intra-party dynamics show a remark-
ably centralized selection and removal of leaders, and a reduced members’involve-
ment in party affairs in almost all major political parties. As a consequence, a wide
power disparity between the various party strata results in a weak intra-party
cohesion and organizational loyalty. Moreover, a detailed analysis of the patterns
of interaction between or among political parties, discloses how in the last decades
the major Romanian political parties experienced numerous splits and mergers, how
several opportunistic coalitions were forged on the eve of, or midway between,
parliamentary elections, and how at an individual level, numerous party members
abruptly changed their affiliation in order to obtain secure political positions. Placing
this analysis of fragmentation on a timeline reveals the rather surprising fact that the
Romanian political elite is able to overcome structural factors and find political
compromise and scope for cooperation, although it still lacks the will to commit
indefinitely to the rules of democratic pluralism. The years preceding the state’sEU
accession were marked by a period of calm and apparent consensus, which ended
abruptly in 2007. This post-accession disintegration of the Romanian political elite
14 1 Introduction: The European Paradox of Expecting Corrupt Political...
still conditions the behaviour of the elite-members and the stability of EU-driven
reforms.
In Chap. 4, the focus shifts away from the analysis of the elite to an analysis of
their legislative conduct in the area of public integrity and anti-corruption.
Romania’s integrity and anti-corruption reform presents a most likely case for
de-Europeanization, in a context with prevalent high-level corruption. That an
allegedly corrupt political elite who act out of personal interest would be in favour
of blocking justice reforms is self-evident. The focus here is on the details of how
this plays out in the transposition of specific European policies. The analysis follows
the legislative path of Romania’s integrity law, which clearly demonstrates a pattern
of diluting already existing provisions, with repeated subtle attempts to reverse those
positive reform steps that have already been undertaken. With de-Europeanization
defined in strictly legislative terms (i.e. narrowed down to the transposition of
European laws and requirements), any reform reversal is measured, for each article
of law, against the level of positive change it has already achieved. The in-depth
empirical evidence confirms de-Europeanization, it illustrates how the use of inad-
equate and hasty procedures and the inconsistent adoption of amendments that are
ill-fitted to the scope of the law in question had dire consequences for the quality of
legislation, as well as affecting the quality of institutional interactions, the level of
public trust, and the engagement of the nonelite. As the analysis shows, the goals of
the legislators clearly pointed towards a pursuit of personal interests that extended
beyond winning elections. They proposed amendments that frustrated the regulative
purpose and generated legislative ambiguity and confusion which was far from
accidental. They allowed the use of sloppy legislative techniques, which made any
meaningful reform impossible. Yet more importantly, they opted for a self-centred
rather than a social-centred approach when justifying and voting on legislative
amendments. This case singles out the crucial role played by elite preferences in
shaping reforms and reform processes laying bare the subtle patterns of abusive
behaviour in legislatures generally considered to be rule-governed and transparent. It
also helps to explain the limits of post-accession conditionality, and the challenges to
reduce the abuse of power in settings known to be already corrupt, particularly in
those fields where civil society is still weak and unable to hold the elites accountable.
A second case study is provided in Chap. 5: an inquiry into Romania’s nature
conservation reform. This case provides a valuable example of a policy field in
which the same political elite lacks strong personal incentives to reverse change and
thus allows Europeanizing reforms to unfold. The evaluation of the legislative
performance again shows a questionable use of legislative procedures, but this
time coupled with a higher level of responsibility and responsivity to societal
concerns. The in-depth analysis of the manner in which EU requirements in this
field were transposed and amended shows the degree to which the legislation
underwent significant improvements over time. Subsequent revisions of the law
not only intended to address people’s need for a clean environment and the
community’s need for sustainable development; they also articulated the need of
the administrators of protected areas to work on a clear legal basis. More importantly
still, this case provides an example of a policy field in which the very same political
1.3 The Structure of the Book 15
elite is motivated to cooperate with civil society in developing and implementing
effective and sound legislation in accordance with European standards. The expan-
sion of protected areas in preparation for EU membership generated an increased
need for an effective management of these areas, which translated into a legislative
solution allowing civil society organizations and the scientific community to assume
responsibility on an equal footing with the government. The case study shows that
the Europeanizing trend of nature conservation legislation, and the positive devel-
opment of the reform during Romania’s post-accession period, is inextricably linked
to the emergence of a strong environmental civil society. This empowerment of civil
society contributed to an increase in the level of public engagement in support of
environmental causes, and resulted in less scope for the pursuit of personal interests
by the political elite in this sector in the long term. In this case, European impulses
for change were able to translate into successful reforms.
Both of these cases are highly relevant for assessing Romania’s post-accession
compliance record, as the European Commission attaches equally high salience to
both areas of reform and is very active in detecting and sanctioning instances of
non-compliance.
42
Very similar in terms of the degree of external adaptational
pressure for domestic change, the two reforms have very different Europeanization
outcomes: repeated successful attempts at reversal in one field but not in the other.
Through a most-different cases design, this book explains Romania’s selective
backtracking by exposing the manner in which domestic political elites
instrumentalize both the EU and the domestic democratic framework in pursuit of
personal gains. Too heavily focused on institutional factors and on compliance-
inducing instruments, Europeanization literature fails to account for the role played
by individual decision-makers in upholding domestic reforms. It is blind to the
dangers posed by fragmented self-serving political elites, who are able to alter the
course of reform by deviating from both the public interest and European require-
ments. This study reconfigures the idea of domestic interests; shifting the focus away
from group, party or societal interests, and towards the private interests of the elite,
whose pursuit of which is revealed to lead to unpredictable legislative outcomes.
This approach also alerts Europeanization scholars to the possibility of a shift from
overt to more discreet forms of abuse, and stresses the importance of identifying
(ideally at an early stage) the subtle ways in which political elites reverse legislation
and weaken the democratic framework. A careful observation of all the steps
undertaken in the process of transposing European norms and of revising legislation
can go a long way towards identifying instances of reversal and in using them to
reveal systemic infringements
43
before it is too late.
While this understanding of Europeanization, modelled as a reversible process,
may seem to offer a somewhat pessimistic prospect for reform, this book nonetheless
suggests, in its concluding Chap. 6, a cure to these problems, found in the empow-
erment of civil society to partake, in one manner or another, in the law-making
42
This initial justification of the case selection will be more extensively developed in Chap. 2.
43
Scheppele (2016).
16 1 Introduction: The European Paradox of Expecting Corrupt Political...
process. Improving the capacities of civil society to participate more effectively in
policy formulation and implementation makes democratic consolidation more fea-
sible and allows for genuine Europeanizing reform. Romanian civil society organi-
zations face increasingly difficult access to funding and increasingly burdensome
registration and reporting requirements, while the police forces enjoy more and more
latitude to disperse public protests. These challenges notwithstanding, the Romanian
civil society manages to capitalize on its strength gained in the environmental sector
and triggers a broader public engagement that spills over from the domain of
environmental protection to the area of anti-corruption and good democratic gover-
nance. Along these lines, the present book serves as a cautionary tale and as an
invitation for the EU to fully support civil society in its Central-, East- and
Southeast-European member states.
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1.3 The Structure of the Book 17
Chapter 2
Towards a Theory of De-Europeanization,
an Elite-Based Approach
Concepts without percepts are empty; percepts without
concepts are blind. (Kant)
Article 76 of the Romanian law regarding prisoners’rights, Law 275 of 2006,
1
states
that a prison sentence be reduced by 3 days for every 2 days of work if prisoners
were involved in scientific research, inventions or patented innovations. This article,
which clearly reflected the rehabilitative focus of imprisonment, was later amended
by Law 254 of 2013.
2
The new law shifted the emphasis from the amount of time
that prisoners invested in scientific research to the number of scientific works they
produced during detention.
3
This minor amendment to the 2006 law is emblematic in
that it shows how a provision in line with European standards that emphasized the
rehabilitation of prisoners has been remade into one that offers a particular group of
detainees a clear prospect of early release. Following this legislative amendment,
Romania saw an abrupt increase in prisoners’scientific publications between 2014
and 2015, with over 337 works published in 2015 alone; more than 103 scientific
projects by 63 detainees were under way in January 2016, which means that some
inmates were working simultaneously on more than one publication.
4
A large
number of these scientific works were authored by former members of parliament
or former members of national or regional governments who had been sentenced to
prison on charges of corruption. This is but one of many examples of legal
corruption
5
demonstrating a clever drafting technique through which legislators
instrumentalize policies and the democratic framework for their own personal
benefit. This case, seemingly insignificant in its scale, highlights the role of
1
Parliament of Romania (2006). Law 275/2006.
2
Parliament of Romania (2013). Law 254/2013.
3
Article 96 of Law 254 of 2013 provides for a shortening with 30 days of the sentence for every
published work or patented invention.
4
Data provided by the Romanian National Administration for Penitentiaries and published by the
Romanian Ministry of Justice in a proposal to amend the respective law: Romanian Ministry of
Justice (2016).
5
Kaufmann and Vicente (2011).
©The Author(s) 2022
L. Martin-Russu, Deforming the Reform, Contributions to Political Science,
https://doi.org/10.1007/978-3-031-11081-8_2
19
legislatures and of individual legislators in actively encouraging abusive and corrupt
behaviour, at the expense of any chance for genuine reforms.
Outside of anti-corruption reforms, the success of any policy and the proper
functioning of the entire political system depends on the choices made by political
representatives. Assessing the degree to which a given system is corrupt involves
identifying the extent to which the rules defining the proper functioning of that
system are violated; thus, any understanding of corrupt legislative decision-making
relies on what is defined as appropriate legislative decision-making.
6
This requires
that political representatives are defined as agents entrusted with the broad delegated
authority to engage in policy-making under a public-interest mandate.
7
In this case,
any parliamentarian’s use of entrusted legislative powers that puts their private gains
before the interests of their voters would represent a loss of integrity and thus a form
of engagement in corrupt practices. This perspective draws on the work of
Kaufmann and Vicente,
8
who understand an act to be corrupt once public officials
use their position for purposes that deviate from the public interest. Building on this
broad understanding of corruption as “the use of entrusted power for private gain”,
9
we will define as legal corruption all cases in which public officials use their
legitimately entrusted power in order to pursue personal goals and gain private
benefits at the expense of public ones without breaching existing legislation.
10
Without constituting a study of corrupt practices per se, the present research utilizes
the notion of corruption (understood as “subversion of the public interest”
11
) in order
to highlight the significant role that such intentional misconduct might play in the
adoption of legislative reforms. Employed in this way, the concept of legal corrup-
tion will allow us to lay bare more subtle patterns of abusive behaviour in settings
that are generally considered to be rule-governed and transparent, such as national
parliaments.
As legislatures are agents entrusted with establishing legality, the quality of the
adopted legal framework will depend largely on the interests pursued by lawmakers
and the extent to which they can be held accountable by those delegating their
power, i.e. the voters. It is therefore not surprising that officials who enjoy broad
powers of discretion in systems that are already corrupt and lack adequate and
efficient mechanisms of legislative control are rather likely to prefer a corruption-
prone legal framework, being inclined to adopt laws that primarily serve their
6
Hellman (2013), Burke (1997), and Strauss (1995).
7
The Romanian Constitution in Art. 61 (1) defines the Parliament as “the supreme representative
body of the Romanian people and the sole legislative authority of the country”, whereas Art.
69 (1) reiterates that “in the exercise of their mandate Deputies and Senators shall be in the service
of the people.”Parliament of Romania (2003). Constitution of Romania.
8
Kaufmann and Vicente (2011).
9
Kaufmann and Vicente (2011: 195).
10
Teachout (2009: 377) aptly points out that such a broad meaning of corruption, while being rather
close to the popular use of the term, is nevertheless very distant from most of the academic
approaches to corruption.
11
Underkuffler (2005: 27).
20 2 Towards a Theory of De-Europeanization, an Elite-Based Approach
particular interests and only secondarily the interests of the society at large. Corrupt
self-serving practices can thus undermine the legislative process per se, encouraging
rather than suppressing such undesirable, yet legal, behaviour. In such contexts,
political decision-makers are unlikely to curb corruption through meaningful legal
and administrative action. The legal and administrative action undertaken at present
by the Romanian political elite is indeed far from meaningful. Anti-corruption
efforts need to be both a matter of establishing institutions and formal democratic
or judicial mechanisms, but also a matter of political accountability. However,
Romanian legislators tend to focus on the former while completely disregarding
the latter. This leads to an overly zealous development of institutions that lack the
means and resources for effective action. Chapter 4will provide an excellent
example of this; an anti-corruption agency created without the appropriate legislative
basis or the technical capacity for effective action. As we will see, as long as the
public accountability of political decision-makers and existing oversight mecha-
nisms are weak, the efforts to curb established patterns of corruption will remain
equally weak.
Understanding corrupt behaviour in terms of political will and an actor’s attitude
towards public service, and not only as a violation (committed for private gain) of the
existing laws, draws attention to more elusive forms of abuse. It highlights the
important role of in-depth analyses of both the legislative output and of the repre-
sentatives’preferences, which in this context are considered crucial in shaping
expectations regarding the success of anti-corruption reforms, and of reforms in
general. This approach provides a new perspective on Europeanization and
EU-triggered legislative reform: it brings into sharper focus the intentions of the
domestic legislator in passing or amending a law, and provides a more comprehen-
sive picture of the quality and character of the legislative output. The intention of the
political leaders to serve the public interest is here taken to be key for the success of
anti-corruption and other Europeanizing reforms (while the pursuit of private rather
than societal goals at the expense of the common good constitutes an act of
corrupting those reforms). Throughout this book, the discussion of Romania’s
EU-driven reforms will focus on the interests pursued by the legislators in drafting
and adopting legislative acts, providing a comprehensive analysis not of corruption
itself, but of the corruptive potential of legislatures in the context of domestic
Europeanization-driven change.
The lack of support for sustained anti-corruption efforts at the domestic level
among political decision-makers was compensated for by increased pressure at the
EU level. The European Union considers corruption a severe threat to its core
democratic values, to the effective implementation of the acquis communautaire
and to the proper functioning of the single market. Therefore, since the adoption of
the Copenhagen criteria in the context of eastern enlargement, the EU has attached a
high priority to fighting corruption; its policy of conditionality specifically addresses
this issue. Most studies of Europeanization assume that the European Union has
sufficient power to trigger reform in member states subject to post-accession condi-
tionality. The EU’s mechanism of continuous monitoring and benchmarking is
thought to contribute to combating corruption and thus, to establishing the rule of
2 Towards a Theory of De-Europeanization, an Elite-Based Approach 21
law. But is pressure from the EU enough to ensure sustainable change? Are genuine
anti-corruption reforms triggered this easily even in states with high levels of
corruption? Can we expect unstable democracies to reform their justice systems,
and can we expect the rule of law to be adopted in the interest of the general good?
And most importantly, can corrupt public officials really be expected to punish
themselves? As discussed in the introductory chapter, the European Union’s policy
of conditionality, despite its ambitious democratic and acquis-related criteria, fails at
times to deliver on its promise to spark deep and sustainable reforms that succeed in
ensuring the rule of law, restrict corruption and increase good governance. This was
the case in several southern and Central European accession states, which have in
recent years experienced a decrease in their capacity to control corruption, and it was
also the case in Romania when it dismantled parts of its already adopted reforms,
with law-making being used as an instrument to serve the particular interests of a
corrupt political elite.
Research on Europeanization often fails to acknowledge and explain why states
might de-Europeanize after joining the EU and after successfully adopting
EU-driven reforms. Scholarly approaches implicitly assume that actors have sincere
motifs in embracing or rejecting reforms, ruling out the possibility that reforms are
adopted reluctantly, and by representatives who are well aware of their reversible
nature. The following sections will provide a summary of the literature in the field,
and take into view the extent to which existing approaches account for the revers-
ibility of change and pay regard to entrenched domestic interests when studying
Europeanization. The first part of this chapter will look at how successful EU-driven
reform is understood to stem from both EU-induced adaptational pressures and
national-level preferences, without distinguishing at this stage between the pursuit
of public and private interests in policy-making. Following this, a discussion of the
clashes and overlaps between public interests and the interests pursued by the
political representatives in the exercise of their duties will make up the second part
of this chapter. It will highlight the crucial role played by domestic political elites in
bringing the social and legal reality in line with EU requirements, and in maintaining
a high level of democratic and legislative stability and the rule of law.
Assuming that political representatives might use and abuse their legislative
powers in ways that are detrimental to societies at large, this chapter ultimately
argues that a more accurate model of Europeanization needs to accommodate the
goals pursued by reformers in the process of reform. The approach to de--
Europeanization taken here encapsulates this disjunction between the self-interest
of the elite and the interests of the broader society.
22 2 Towards a Theory of De-Europeanization, an Elite-Based Approach
2.1 Modelling De-Europeanization
2.1.1 Defining De-Europeanization
In order to define de-Europeanization, it is important to first clarify the essential
qualities of the process that actors are seeking to reverse. As a concept,
Europeanization evolved on the basis of a large body of literature on the subsequent
widening and deepening of European integration. Broadly articulated, the motiva-
tion of this research is to understand “how European integration and European
policy-making affect the very states responsible for integration in the first place”.
12
Conceptually, Europeanization has evolved since the 1990s into a notion bringing
together theoretical reasoning and empirical studies in various fields: it was used to
address the process of aligning domestic policies and institutions with their
European counterparts, of aligning national executive branches with the EU’s
negotiation and bargaining processes, and of seeing state and non-state actors
adapt to the emergence of new opportunity structures. The concept is used to
describe the adaptation of domestic policies, polities and politics whenever the
impact of this process extends beyond the borders of EU.
13
Indeed, as research on
Europeanization proliferated, the concept itself was defined in increasingly subtle,
complex and often contradictory terms.
The most frequently cited definition is Radaelli’s.
14
It is an all-encompassing
definition, which captures the multifaceted character of Europeanization, and
extends well beyond an understanding of the process as the mere impact of the EU
on domestic systems; it presents Europeanization instead as a process of:
(a) construction, (b) diffusion and (c) institutionalization of formal and informal rules,
procedures, policy paradigms, styles, ‘ways of doing things’and shared beliefs and norms
which are first defined and consolidated in the EU policy process and then incorporated in
the logic of domestic (national and sub-national) discourse, identities, political structures and
public policies.
Radaelli proposes an understanding of Europeanization that extends beyond the
vertical notion of domestic adaptation; in his view, it is an interactive process rather
than a one-dimensional reaction to the EU. While preserving a clear focus on the
domestic level, the definition of Europeanization as proposed by Radaelli assigns
significant importance to the construction of norms at EU level; it employs a
“bottom-up-down”
15
approach suggesting that studies of Europeanization start at
the domestic level to inquire into how supranational policies and institutions are
affected by domestic preferences or “ways of doing things”and only subsequently
determine the impact generated by EU policy-making at the domestic level. At the
12
Caporaso (2008: 27).
13
Vink and Graziano (2008: 8).
14
Radaelli (2003a: 30).
15
Vink and Graziano (2008: 10).
2.1 Modelling De-Europeanization 23
same time, this perspective subtly allows for an understanding of Europeanization as
a horizontal mechanism of change in which socialization and learning processes
might lead to an in-depth change, to a “consolidation”and “institutionalization”of
norms. Finally, it identifies several domains of impact, from political structures and
actors to discursive and cognitive structures. This highly nuanced definition of
Europeanization provides an appropriate background understanding of the concept
and of the general scope of research in the field. Yet a narrower, more explicitly
formulated “systematized concept”
16
will better serve the aim of the present endeav-
our. To this end, the present section will draw on Radaelli
17
in order to provide a
taxonomy of Europeanization (Fig. 2.1
18
), which will then be used to narrow down
the disciplinary focus and define the concept for the scope of this research.
As noted above, Europeanization processes include both hard and soft mecha-
nisms that produce effects at the domestic level; the pressure exerted by the EU on
member states or acceding candidates is neither a sufficient nor a necessary condition
for domestic change. Transformation can happen by virtue of socialization and
learning, in the absence of any pressure from the Union. While fully acknowledging
this fact, the present approach self-consciously limits itself to a top-down under-
standing of Europeanization, in which reform is triggered by the EU’s compliance
mechanisms and its policy of conditionality. Top-down mechanisms of inducing
domestic change are the main catalysts of reform, at least in as far as the newest
member-states are concerned.
19
Consequently, for the particular context that this
STAGES
OF EUROPEANIZATION
LEVEL
OF DECISION-MAKING
DIRECTION
OF IMPACT
DIRECTION
OF CHANGE
DOMESTIC
STRUCTURES
PUBLIC POLICY
COGNITIVE
AND NORMATIVE
STRUCTURES
SHAPING OF
NORMS
TRANSPOSITION
IMPLEMENTATION
INSTITUTIONALIZATION
EUROPEAN
LEVEL
DOMESTIC
LEVEL
BOTTOM-UP
TOP-DOWN
HORIZONTAL
RETRENCHMENT
INERTIA
ABSORPTION
TRANSFORMATION
DOMAINS
OF EUROPEANIZATION
Fig. 2.1 A taxonomy of Europeanization
16
Adcock and Collier (2001) cited in Radaelli (2003a: 31).
17
Radaelli (2003a: 34–40).
18
Inspired by, yet distinct form, Radaelli (2003a: 35).
19
Schimmelfennig and Sedelmeier (2020).
24 2 Towards a Theory of De-Europeanization, an Elite-Based Approach
book addresses—in which the role and impact of the EU on domestic policies and
structures is considered to be especially strong, and the influence of the domestic
level on EU policy-output is still fairly limited—Ladrech’s
20
definition of
Europeanization proves most suitable:
Europeanization is then understood as the change within a member state whose motivating
logic is tied to a EU policy or decision-making process.
Using Ladrech’sdefinition as a point of departure, the concept of
Europeanization is further narrowed down to encompass only (1) top-down mech-
anisms that induce policy change at the level of member or accession states, which
(2) result first and foremost in a legal transposition of norms, and (3) do not
necessarily imply a deep change in the core and logic of policy-making.
1. Given the major impact the European Union has on domestic policies and the
large bulk of literature devoted to the theoretical and empirical evaluation of this
impact, the present conceptualization will place a special focus on
Europeanization as a mechanism of policy change. This understanding of
Europeanization is also tailored to the particular context to which the concept
will be applied, characterized by a low capacity to influence European-level
policy-making (low capacity for policy-upload) and a very high pressure to
adopt, enforce and institutionalize EU-triggered reforms (high degree of policy-
download). Europeanizing processes are then viewed as dependent mostly on the
nature and intensity of adaptational pressures emanating from the EU on the one
hand, and domestic intervening factors on the other hand.
2. The Union’s impact on member or accession states is primarily driven by
legislative requirements and the legal adoption of norms. The EU itself attaches
high importance to the development of formal institutions and the rule of law,
placing at its very core the development, the interpretation and application of
legal rules.
21
Therefore, bearing in mind the importance of legislation and
legislative institutions for the entire European construction, it is here adopted a
predominantly legal perspective in the study of Europeanization. A state is
considered to be Europeanized as soon as it has successfully transposed into
national legislation the content of European norms. While the broad literature on
implementation pays regard to the processes through which EU norms are not
only domestically transposed, but also adhered to and enforced,
22
the present
approach makes a useful distinction between legal transposition on the one hand
and the application, enforcement or institutionalization of norms on the other. It
questions the extent to which the EU can generate profound institutionalized
change in its member states without an ex ante legal transposition of norms.
Transposition, the transfer of EU legislation into national legislation, is here
regarded as the essential step in the implementation of EU norms, on which the
20
Ladrech (2010: 2).
21
Sverdrup (2008: 199).
22
Sverdrup (2008).
2.1 Modelling De-Europeanization 25
subsequent application and enforcement of laws depends. Even though a study
limited to transposed legislation can yield little information on the actual enforce-
ment and institutionalization of norms, it can be very insightful when addressing
the corruption or reversal of reforms; it can provide essential insights into the
non-enforcement and non-institutionalization of norms. Legal transposition is
thus here regarded as a critical aspect of Europeanization, without which adap-
tational pressures from the EU remain fruitless.
3. Concerning the direction of domestic policy change, despite the fact that EU
policy-making rests on the ideal of harmonization of national policies with
European standards, empirical studies have long demonstrated the EU’s“differ-
ential”impact.
23
Europeanization processes can result in transformation, but also
in absorption, inertia or even retrenchment.
24
Differences in the degree and
direction of change allow us to distinguish these possible outcomes of
Europeanization: “transformation”, which stands for a deep paradigmatic change
of policy; “adaptation”, which indicates a selective adoption of reforms without a
real modification of the core and the logic of policy-making; “inertia”, which
signals a lack of change resulting from delayed or obstructed transposition; and
“retrenchment”, which implies a hostile reaction to European policies, the effect
of which is a domestic reform that is less European than it initially was.
25
Arguably, in the context of enlargement, accession states’responses to the
EU’s requirements are largely positive. Due to their eagerness to finally acquire
full membership, aspiring states most often respond to Europeanization by
“adapting”or “transforming”. However, recent evidence on post-accession devel-
opment in some Central Eastern and South-Eastern European member states
renders at least questionable the idea of EU inducing deep domestic change.
In sum, Europeanization is here defined as a top-down mechanism through which
the EU exerts an influence on its states; an influence which is reflected at the
domestic level in the quality and stability of transposed legislation. This conceptual
restriction offers a refined account of the EU’s domestic impact, which is appropriate
for explaining non-linear developments in domestic reform processes such as those
identified in the case of Romania. This strict limitation of the concept of
Europeanization to comprise only legislative changes will therefore exclude wider
issues such as a state’s capacity to enforce or institutionalize respective legislation.
The main focus is on domestic legislative output, which makes it easier to isolate the
EU’s adaptational pressure for reform, to identify instances of reform reversal and to
identify the factors determining such a U-turn. A state’s accession to the EU
significantly affects its domestic legislative framework, which inevitably results in
successful Europeanization, at least in certain policy areas. However, that a reform is
adopted does not necessarily guarantee that it will remain in place. The newly
23
Héritier et al. (2001).
24
Héritier et al. (2001), Radaelli (2003a: 37–8), Radaelli and Pasquier (2008: 39–40).
25
Radaelli (2003a: 37–8).
26 2 Towards a Theory of De-Europeanization, an Elite-Based Approach
acquired status quo may be easily reconsidered by legislators in light of a changing
balance between costs and benefits, leaving the respective member state likely to
undermine pre-accession measures and de-Europeanize.
De-Europeanization as understood here marks not only a deficit in the institu-
tionalization of change, it represents a formal reversal of reform. This definition of
de-Europeanization comes very close to the notion of “retrenchment”mentioned
above. While both imply a process of “negative”Europeanization, the notion used
here indicates an ex post rejection of reform only after the respective change has
been adopted and produced effects at the domestic level. The thing that significantly
sets de-Europeanization apart from “retrenchment”is the standard against which the
respective reversal of reform is judged: while “retrenchment”refers to a first-
instance response to EU policy-making, de-Europeanization instead concentrates
on the long-term effects of Europe. It goes beyond the initial impact created by the
EU and addresses the U-turns of already Europeanized policies by using the level of
already achieved “positive”reforms as benchmarks in assessing “negative”changes.
This means that such a process of de-Europeanization is only possible where the
initial Europeanizing pressures triggered the “absorption”of norms and not a deep,
long-lasting “transformation”,“inertia”or “retrenchment”. In sum,
de-Europeanization denotes a setback of domestic reform following an initial adop-
tion of EU norms and standards.
It is also important to distinguish between de-Europeanization and
de-Democratization. Recent scholarship on CEE rightly regards the two phenomena
as two sides of the same coin, assuming that the level of Europeanization depends
inevitably on the quality of democracy.
26
While this perspective holds true for broad
analyses (ones that encompass economic, social and political motivations, factors
and transition outcomes, as well as formal and informal practices), for the scope of
the present research the two concepts are better separated than fused. Indeed, when
assessed against the broad spectrum of democratic reforms that entail fundamental
social and behavioural changes, Europeanization is still incomplete in Romania,
which renders the notion of reversal void. However, in the narrower understanding
of Europeanization proposed here, Europeanization is complete once the required
rules and norms are transposed. In this case de-Europeanization is a reversal of
formally adopted legislation. A de-Europeanizing state may still maintain its dem-
ocratic standards, and conversely a de-Democratizing state may pursue
Europeanizing reforms. The abuse of the democratic framework may not always
result in complete state capture, political elites may act in a self-serving manner in
certain policy domains and not in others, civil societies may be stronger in certain
fields than in others. In order to produce a fine-grained analysis of formal
de-Europeanization, the intention here is not to juxtapose de-Europeanization and
de-Democratization. Rather, the intention is to develop a frame of reference that
incorporates the essential requirements for democratic conduct when assessing
de-Europeanization without performing a de facto measurement of any democratic
26
Rupnik and Zielonka (2013), Ágh (2015), and Bogaards (2018).
2.1 Modelling De-Europeanization 27
backslide. Unfortunately, the EU does not as yet have an effective mechanism for
defending liberal democratic institutions. It remains largely unable to prevent a
democratic backslide, in the way that it can use its leverage in tackling faulty
transposition of EU law or norms.
27
Given the aim of the present research to assess
the long-term effectiveness of EU post-accession conditionality, the approach to
reversal must be narrowed down to those aspects in which some form of compliance
mechanisms are in place.
2.1.2 Overview of Europeanization Research
The above-mentioned conceptual confusion surrounding the notion of
Europeanization extends beyond semantics, and in fact reflects a wide variety of
proposals for modelling and measuring Europeanization.
28
The present overview
does not aim to review these in detail and cannot do justice to the wealth of literature
on Europeanization; rather, it aims to glean from them those analytical elements
which are useful in explaining de-Europeanization processes.
Ups and Downs
There is an inherent optimism prevailing in the literature on Europeanization with
respect to the harmonizing role of Europe. Indeed, despite the fact that it is largely
claimed that Europeanization is not to be equated with convergence or policy
harmonization, and despite the emphasis on the differential impact on member
states, an incremental and transformative reasoning nevertheless remains at the
core of the proposed models.
A significant part of the literature embraces a constructivist perspective on the
impact of European integration on member states and assumes that to a notable
degree, developments at the domestic level would have occurred with or without the
existence of the European Union. By placing greater emphasis on the voluntary
character of compliance and on the non-coercive mechanisms of domestic change—
persuasion, learning, socialization—these approaches to Europeanization draw
attention to horizontal processes of ideational convergence and policy transfer,
which unfold independently from any formal compliance with European legislation
or even from membership in the EU.
29
Early studies of horizontal Europeanization
viewed the EU as a policy transfer platform rather than a law-making body.
30
27
Vachudova (2016).
28
Graziano and Vink (2008), Radaelli and Pasquier (2008), Exadaktylos and Radaelli (2009),
Ladrech (2010: 13–4).
29
Flockhart (2010), Mau and Mewes (2013).
30
Radaelli (2003a: 43).
28 2 Towards a Theory of De-Europeanization, an Elite-Based Approach
Processes of emulation, they argue, take place even in the absence of European
directives or regulations, and in support of this claim empirical research focused
largely on the open method of coordination.
31
This mechanism was seen as a
promising tool for the transfer of knowledge and best practices, which stimulates
convergence towards EU goals by using a logic of benchmarking, networking,
socialization and learning facilitated by European institutions.
32
Learning-based Europeanization is the outcome of indirect and invisible mecha-
nisms constituting the driving force for profound and stable reform. Such soft and
deep Europeanization is triggered by socialization—which raises policy-makers’
awareness of their interdependence, and thus, their level of commitment; monitor-
ing—which makes EU institutions more aware of the progress achieved by member
states, and thus more capable of providing suitable solutions; and by arguing and
persuasion—which makes all European decision-makers aware of each other’s
preferences and common goals.
33
It is worth noting in this respect that the source
of initiative for domestic change is diffuse. A transition towards Europeanization, if
there is any transition at all, takes place in the absence of adaptational pressure; the
adoption of domestic reforms in this case is a consequence of increased competition
and cooperation between member states and of an increased exchange of information
and mutual learning.
34
These mechanisms of adaptation therefore have a profound
voluntary character, with states enjoying broad discretion in deciding on the timing
and the appropriate solutions to be adopted domestically. As a result, adoption of the
rules that are transferred through horizontal Europeanization is most likely to require
significantly more time, but develop a stable character. Where present, such
Europeanization processes most likely lead to continuous and consistent compli-
ance. Domestic reform tends to be more profoundly institutionalized, much slower,
yet less contested at the domestic level.
35
Viewed in this light, Europeanization is fairly linear in its trajectory. Such a
conceptualization leaves very little scope for a reversal of reforms. The underlying
assumption is that horizontal mechanisms can successfully trigger policy,
behavioural and ideational convergence in the pursuit of common European goals
in the absence of any pressure to conform.
36
Studies focusing on socialization and
learning thus account for voluntary and therefore solid processes of Europeanization;
they trace gradual and subtle developments which unfold over long periods of time,
but lead to lasting reform. The horizontal model of Europeanization is thus fairly
limited in explaining de-Europeanization. While being particularly appropriate for
31
For comprehensive critical reviews of the literature on the open method of coordination see
Kröger (2009b), De la Porte (2010) and Borrás and Radaelli (2010).
32
Radaelli (2003a: 43–4, 2003b), De la Porte and Pochet (2002), Borrás and Jacobsson (2004),
Jacobsson et al. (2004), Radaelli and Pasquier (2008: 37–8).
33
Radaelli (2008: 240).
34
Vink and Graziano (2008: 10).
35
Epstein and Sedelmeier (2008), Epstein (2008).
36
Borrás and Jacobsson (2004), Jacobsson et al. (2004).
2.1 Modelling De-Europeanization 29
identifying instances of deep domestic change, the horizontal approach is of little
help in explaining the reversal of reforms as witnessed in the Romanian context.
Numerous scholars agree that the process of open coordination failed to realize its
promise, with the effects it produced being mixed at best.
37
Moreover, this kind of
open coordination proved to be less applicable to new member states whose partic-
ipation in the process was much more top-down in character, resulting more from the
transposition of social directives than from involvement in the open method of
coordination.
38
This confirms the thesis put forward in the literature that domestic
change in the EU’s Central and Eastern and South-Eastern European member states
was foremost a result of a “hierarchical and vertical processes of command, control
and steering”
39
and less an effect of the horizontal socialization and lesson-drawing.
By addressing processes far lengthier than legislative convergence, such a hori-
zontal approach would be more suitable for a long-term analysis of the impact of
Europe. The EU’s new members are still young members of the Union, and their
post-accession experience is still too limited to gauge the full impact of socialization,
including “unexpected, unintended, or failed socialization”.
40
A horizontal concep-
tual design would be most appropriate for a complementary study focused on
enduring instead of ephemeral reforms. At the same time, horizontal
Europeanization as described above implies a policy transfer which occurs indepen-
dently from EU directives and regulations and the member state’s compliance in the
formal sense; socialization, learning, ideas and attitudes play a far greater role than
formal convergence. However, to ignore Romania’s formal compliance and the EU’s
adaptational pressure as factors triggering change would most probably distort the
insights produced by this thesis. One only needs to bear in mind the undeniable
progress made by Romania in its pre-accession phase, which was a clear conse-
quence of the EU’s conditionality and the country’s strong desire for membership.
No less optimistic in terms of the EU’s potential to generate domestic transfor-
mation, yet focusing on less subtle and significantly more formal mechanisms of
change are the studies of Europeanization which propose a vertical understanding of
impact (with either an ascending or descending direction of influence). Both bottom-
up as well as top-down approaches place their main focus on the EU level, which is
viewed either as a locus of policy-making at the top or as a stimulus for policy-taking
at the bottom. While top-down Europeanization emphasizes the importance of an
existing European standard, and substantial adaptational pressure on states to con-
verge with this standard, bottom-up models begin and end at the domestic level,
grounded on the assumption that member states themselves have a say in shaping
many of the EU policies and standards which subsequently impact them at the
domestic level. Bottom-up Europeanization thus accounts for domestic change by
starting from the member states and putting first the crystallization of domestic
37
Buchs (2007), Radaelli (2008), Hartlapp (2009), Kröger (2009a), Borrás and Radaelli (2010).
38
De La Rossa (2005: 633).
39
Schimmelfennig and Sedelmeier (2004: 674, 2020) and Mendelski (2012: 26).
40
Epstein and Sedelmeier (2008: 803).
30 2 Towards a Theory of De-Europeanization, an Elite-Based Approach
preferences, it proceeds to inquire into how rules shaped at the EU level are a
reflection of these preferences, and only then questioning their potential to produce
effects back at the domestic level. By stressing the role of member states and
domestic actors in uploading their preferences to the EU level along with the role
of the EU in generating domestic change through adaptational pressures, bottom-up
conceptual designs transcend the uni-directional model of conceptualizing the
domestic impact of Europe.
41
Their approach to Europeanization “captures the
whole life-cycle of public policy, with possible feedback effects between the
national level and the EU”,
42
by relying on both processes of policy upload and
policy download. Causality in this case runs both ways; nevertheless, the initiative
and the stimulus for engaging in policy upload remains at the domestic level, with
domestic actors able to firstly shape rules which they will then subsequently have to
adapt to domestically.
The relevance of this approach, and of the bottom-up perspective in general, for
the present argument lies in the fact that it acknowledges the weight of domestic
preferences in European-level policy-making. It opens the black box of interests
pursued at the domestic level by public administrators and economic and societal
actors, and it argues that political representatives compete at the EU level in pushing
for policies that align with the preferences of their constituencies.
43
Successful
Europeanization is in this light not a matter of incorporating European rules into
domestic structures, but rather the other way around: EU-level policy-making is
understood as an integral part of domestic political action. Studies of bottom-up
Europeanization assess the domestic usages of Europe instead of the domestic
adaptation to European pressures.
44
The present research, even though concerned
with the top-down dimensions of the policy process and isolating the “downward
flow of effects”
45
from the EU-level onto the domestic policy-making level, stays
focused on domestic interests. The active role of domestic players in their pursuit of
domestic preferences and their potential use of Europe is here judged to be important
for explaining problems that are specific to top-down Europeanization. Assessing the
top-down impact of Europe in this way, the present argument reinterprets policy
download in terms of how domestic actors make use of European policies in pursuit
of particular interests, and what meaning they attach to the reforms triggered by the
EU. Inspired by the bottom-up logic, the following analysis will show how EU
policy-making is instrumentally used by domestic actors, not at the EU level, but
rather at the domestic level, during the transposition of norms.
But there is more to the bottom-up understanding of Europeanization than the
idea of usage of Europe. Bottom-uppers also address processes of reorientation of
41
Dyson (2000), Börzel (2002), Radaelli (2003a), Pasquier (2005), Dyson (2008), and
Stolfi(2008).
42
Saurugger and Radaelli (2008: 213).
43
Börzel (2002: 196).
44
Radaelli and Franchino (2004), Woll and Jacquot (2010).
45
Bache (2008: 11–2).
2.1 Modelling De-Europeanization 31
national groups towards supranational fora (proaction) and the emergence of pro-
and anti-EU movements responding in a positive or negative manner to an increasing
level of integration (rejection/promotion).
46
Such studies emphasize the role played
by local actors in embracing and interpreting European rules and opportunities, the
importance of collective action and transnational networks and the implications of an
emerging European identity.
47
The common ground of bottom-up Europeanization
studies lies in recognizing the major role played by domestic contexts or by domestic
actors and their respective preferences, which can feed back into the process of
policy- or decision-making at the EU level. By considering the domestic political
dynamics in the first place, bottom-up research designs can avoid prejudging or
over-emphasizing the role of the EU in generating domestic change. Indeed, change
may “draw on domestic channels”
48
and this is an aspect which top-down
Europeanization models often fail to acknowledge.
By starting out from an analysis of an ex-ante domestic situation and an ex-ante
assessment of domestic preferences, bottom-up Europeanization research postulates
that the process of European policy-(re)formulation depends to a large extent on
existing domestic interests that are pursued in EU-level decision-making processes
which only subsequently affect domestic policies and structures. Even though the
model is cyclical, the descending stage of Europeanization—the transposition and
enforcement of norms—is marginal in the bottom-up understanding of
Europeanization. Perhaps contra to expectations, this bottom-up approach actually
places a very high emphasis on the EU level, where policy is defined, and on the
extent to which domestic preferences affect EU policy-making. Such a view leaves
very little scope for exploring instances of de-Europeanization, as domestic prefer-
ences and the action capacities of those representing such preferences at the EU level
remain, in general, largely stable over time. The possibility of reversal is even less
likely if one takes into account the fact that bottom-up models of Europeanization
rely heavily on the assumption of a plurality of interests pursued in supranational
fora, which would make a reversal of an already established status quo very difficult
to achieve.
Thus, in the present context, the bottom-up model is rather limited in its explan-
atory value. It is not only unable to properly account for processes of
de-Europeanization, but its application is limited by the requirement that states
must have a reasonable impact on policy-making at the European level. Most Central
Eastern and South-Eastern European member states, even though eager, are gener-
ally still weak in their capacity to upload preferences to the European level. Being
still at an early stage of membership, their domestic political dynamics are seldom
able to feed back into European-level policy-making. Without neglecting the rele-
vance of policy upload in the context of Europeanization, the present theoretical
framework draws mostly on the top-down approach in which change, if any, is
46
McCauley (2011: 1021–3).
47
Woll and Jacquot (2010: 113).
48
Radaelli and Pasquier (2008: 44).
32 2 Towards a Theory of De-Europeanization, an Elite-Based Approach
thought to be generated at the EU level and trickle downwards through adaptational
pressures. The focus is here deliberately placed on the download of legal norms, as
Romania is still particularly reserved in its upload of domestic preferences to the EU
level. Bearing in mind that policy download depends largely on policy upload and
interactions at the EU level, and recognizing the various opportunities that domestic
governmental or non-governmental actors have to influence EU policy develop-
ments, this approach nevertheless narrows down the meaning of Europeanization to
the legal conformity with EU policies, requirements and standards at the domestic
level. The ex-ante development of the respective policies at the EU level remains
beyond the scope of this restricted conceptualization of Europeanization.
There are three main reasons why a top-down analytical framework is the most
appropriate conceptual approach for the present argument. The first takes into
account the sources of the imperative for domestic change: while to some extent,
domestic reform might be pushed by bottom-up or horizontal forces, the major
trigger of reform in Romania, as in other member states in the region, remains the
EU’s adaptational pressure and its stimulating policy of conditionality. The second
point concerns the upload capacity of new members or accession states: there needs
to be a clear distinction between policy formulation at the EU level and its domestic
implementation. Placing higher importance on the former renders bottom-up
approaches unsuitable to research on states with limited or no capacities to influence
supranational policy-making. Longer membership is required for states to substan-
tially increase their upload potential and have a real impact on EU-level policy-
making. Closely related to this, the final point reflects on the time frame of the
produced or expected change: the adjustment to Europe of Central Eastern and
South-Eastern European states has been rather rapid and abrupt, leaving little
scope for strong horizontal effects; a wider time horizon is required for socialization
and learning processes to take effect and become visible at the domestic level of the
EU’s still newest member states.
Top-Down Europeanization: The Misfit-Driven Reform
Over the last two decades, top-down Europeanization literature has grown particu-
larly rich, with approaches varying significantly in terms of the variables defined, the
methodologies adopted, the policy areas under study, and the geographical areas
addressed. Emerging from a comparative politics perspective, top-down
Europeanization research largely regarded the EU and its policy-making as an
independent variable in explaining changes in domestic political activity, structures
and policies.
49
Numerous studies touch upon the EU’s impact on domestic institu-
tions, focusing either on the adaptation of executives to membership
50
or prospective
49
Vink and Graziano (2008) and Ladrech (2010).
50
Hanf and Soetendorp (1998), Harmsen (1999), Goetz (2000), Wessels et al. (2003),
Kassim (2013).
2.1 Modelling De-Europeanization 33
membership,
51
or the adaptation of parliaments
52
or courts.
53
Other scholars address
the manner in which the EU affects political actors—be they parties and party-
systems
54
or interest groups and social movements.
55
However, the major share of
top-down Europeanization literature is dedicated to policies, concentrating on policy
domains as diverse as environmental policy, transport policies, telecommunications
policy, labour policy or asylum policy.
56
These numerous studies addressing Europeanization and policy change give rise
to a cautious optimism with regard to the EU’s potential to generate reform in its
member states or candidates. There is indeed strong agreement among scholars on
the impact of the EU at the domestic level. However, approaches vary in their
assessments of the degree of impact, the factors enabling or inhibiting change, and
the states or clusters of states across Europe that are most prone to sustainable
reform. There are three questions that lie at the heart of top-down Europeanization
research: (1) What triggers change at the domestic level? (2) What are the domestic
factors that could hinder or enable such change? (3) What are the domestic responses
to Europeanization pressures? Against this background, the intense debates that
fuelled the development of Europeanization research moved beyond the study of
supranational triggers for domestic reform, and descended to the domestic level to
identify facilitators or inhibitors of change, the resulting degree of policy adjustment,
and the success or failure of implementation.
Theoretically, top-down Europeanization research draws on new institutionalism,
building on the discussion that institutions matter and asking how institutional
configurations at the EU level have an impact on policy outcomes at the domestic
level. The underlying logic is that European institutions and policies shape the
behaviour of domestic political actors, who consequently adopt and implement
reforms at the domestic level. In this light, Europeanization is mainly concerned
with the manner in which “one set of institutions—the European rules, regulations,
and collective understandings—interact with another set of institutions—the given
domestic structures in the member states”.
57
Grounded in a hierarchical understand-
ing of the EU, domestic conformity to supranational institutions is mainly framed in
terms of a three-step model, stating that the Union—through its norms, rules,
regulations, procedures and practices—gives rise to adjustment pressures, which,
51
Goetz (2001), Lippert et al. (2001), Zubek (2008).
52
Maurer and Wessels (2001), Auel and Benz (2006), Raunio (2005), Ágh (2007), Auel and Raunio
(2012b), Kassim (2013).
53
Conant (2001), Nyikos (2008), Ladrech (2010).
54
Marks and Steenbergen (2004), Pridham (2005), Mair (2008a) with further reference;
Ladrech (2010).
55
Eising (2008), Ladrech (2010).
56
Knill (2001), Börzel (2008), Héritier et al. (2001), Schneider and Werle (2008), Berglund (2009),
Falkner et al. (2005), Lavenex (2001, 2008). This selection of literature is far from being exhaustive,
the aim being less to provide a comprehensive overview of the considerable research in the field, but
rather to illustrate the wide variety of top-down approaches to Europeanization.
57
Olsen 1995, cited in Risse et al. (2001: 7).
34 2 Towards a Theory of De-Europeanization, an Elite-Based Approach
by means of domestic-level mediation, can produce domestic outcomes.
58
This three
steps model incorporates the three questions noted above, with different scholars
emphasizing different aspects of the model.
1. What is it that triggers Europeanization in the first place? The response most
widely discussed in the literature revolves around the notion of misfit: an iden-
tified level of misalignment between European and domestic structures. It is this
incongruence between the supranational and the national levels that generates
adaptational pressures: a higher level of misfit will most likely increase the
pressure to adapt. The implicit guiding logic of this argument is that change is
to be expected only wherever there is a necessity for it, i.e. wherever the domestic
policies or institutions do not fit with developments at the European level and
where the respective misalignment leads to adaptational pressures on domestic
structures.
59
This degree of misfit is considered necessary but not sufficient for
domestic change.
60
It is merely the trigger and not per se the source of adapta-
tional pressures. The misfit can only lead to compliance when there is significant
adaptational pressure exercised domestically by committed domestic political
actors or structures that favour change (pull) and when there is substantial
adaptational pressure from above via infringement or conditionality mechanisms
at the disposal of the European Commission (push).
61
Pressure for adaptation, emanating either from push or pull mechanisms,
differs across states and across policy areas; the impact of Europe on domestic
policies and structures is differential.
62
The asymmetrical impact of Europe has
long been a commonplace in the literature, suggesting that there is no automatic
response to the build-up of adaptational pressures among European states. Most
scholars agree that Europeanization has neither led to a convergence of adminis-
trative structures nor to a harmonized use of policy instruments across EU
member states.
63
2. What are, in this case, the factors that account for this variation? Europeanization
scholarship
64
highlights the importance of veto players in explaining differences
in transposition and implementation across member states, along with other
intervening factors that may inhibit or foster domestic change: domestic institu-
tions, political and organizational cultures, the differential empowerment of
actors at the domestic level, the readiness for learning, or the existing preferences
and beliefs of the domestic political actors.
58
Börzel and Risse (2000), Cowles et al. (2001), Risse et al. (2001), Börzel and Risse (2007),
Caporaso (2008), Ladrech (2010).
59
Risse et al. (2001), Börzel and Risse (2007: 490–2).
60
Haverland (2000), Héritier et al. (2001).
61
Börzel (2000).
62
Héritier et al. (2001).
63
Falkner et al. (2005), Ladrech (2010: 33–5).
64
Haverland (2000), Risse et al. (2001: 9–12), Mastenbroek and Kaeding (2006).
2.1 Modelling De-Europeanization 35
The most prominent approach in this respect remains the one proposed by
Börzel and Risse,
65
who fit the factors that mediate change at the domestic level
into an institutionalist framework that incorporates both rational and sociological
explanations. They take as their point of departure an assumed level of misfit that
generates adaptational pressures directly proportional to the level of
misalignment and add to it a further condition for change: the existence of
domestic facilitating factors, actors or institutions that respond domestically to
the misfit. They identify two manners of conceptualizing the domestic response to
adaptational pressure, which they combine in a comprehensive model of
top-down Europeanization, that accounts for the domestic response through
both a rationalist institutionalist logic of consequentialism and a sociological
institutionalist logic of appropriateness.
66
The logic of consequentialism assumes
that the misfit between the European and the domestic level leads to changes in
the political opportunity structure. The domestic political actors—rational, inten-
tional, goal-oriented, and with strategies formed in their respective institutional
contexts—might seize new opportunities or face new constraints in pursuing their
goals, and thus facilitate or impede change. Their capacity to act is highly
influenced by mediating factors such as the number of veto points, or the
domestic formal institutions. On the other hand, the sociological institutionalist
perspective draws on the logic of appropriateness, arguing that domestic change
is determined by a collectively shared understanding of what constitutes proper
behaviour. The domestic political actors, while exposed to new rules, norms,
practices and structures of meaning, are thereby influenced in how they define
their interests and identities. Here, mediating factors are also identified as deter-
minants of the degree to which the misfit generates change: norm- and idea-
promoting agents, or domestic political culture and other informal institutions
being highlighted as impactful. Börzel and Risse’s model of Europeanization
makes a distinctive contribution to the literature, as it provides a synthesis of
rational choice institutionalism and sociological institutionalism. They thereby
provide two distinct explanations for domestic change that are not mutually
exclusive, but rather complement each other; either one or the other pattern for
change prevails—more or less distinctly—at different times and in different
phases of domestic adaptation.
67
As already argued above, the present theoretical approach does not deny the
importance of socialization and learning processes to inducing deep, substantial
change. However, they are considered to be long-term processes, able to induce
convergence only in the long run, after several decades of membership experi-
ence. The EU’s newest member states in general, and Romania in particular, did
not reach just yet the phase in which adaptation and convergence result primarily
65
Börzel and Risse (2000), Börzel and Risse (2007).
66
March and Olsen (1998) cited in Börzel and Risse (2000: 6–10) and in Börzel and Risse (2007:
492–4).
67
Börzel and Risse (2000: 10).
36 2 Towards a Theory of De-Europeanization, an Elite-Based Approach
from socialization and learning processes. Indeed, studies covering a wide variety
of Central Eastern and South-Eastern European states
68
found that socialization-
and learning-related factors were largely irrelevant for Europeanization East and
did not account for a significant variation in norm adoption. The incentives
offered by the Union and a candidate’s cost-benefit calculation were factors
considered to be more adequate to explain rule transfer in Central Eastern and
South-Eastern Europe. The EU’s approach to eastern enlargement, they argue,
69
primarily evokes patterns of “old governance”associated with highly asymmet-
rical top-down processes, triggered from above by means of high external
conditional benefits which often exceed the domestic costs of reform. In line
with these approaches and drawing on countless other scholars who have
underscored the relevance of cost-benefit calculations for change processes in
Central and Eastern Europe, the present book will explain Romania’s
de-Europeanization using a rational choice framework, inspired by Börzel and
Risse’s logic of consequentialism.
3. What are the domestic responses to Europeanization pressures? At the member-
state level, distinct forms of adaptive behaviour can be identified that differ both
in the degree and direction of domestic change.
70
The effects of Europeanization
are expected to vary depending on domestic mediation, ranging from absorption
to transformation, with little scope for processes of de-Europeanization. Indeed,
while grounding their models on both rational choice and sociological institu-
tionalism scholars of Europeanization show a subtle inclination towards the
historical institutionalist idea of path dependency. In most top-down
Europeanization models, there is an implicit affinity with the thesis of the
“stickiness”of institutions and policy arrangements.
71
On the one hand, it is
often assumed that a high level of misfit between European and domestically
established practices and structures may lead to difficulties in the implementation
of EU norms,
72
as many domestic institutions “have been around much longer
than the EU.”
73
Still, a significant part of the literature agrees—though not always
explicitly—that once change has occurred, it becomes established. In a rationalist
vein, scholars then go on to argue that domestic change is likely to be lasting as
member states may either benefit from new rules or be reluctant to face the costs
of reversing the newly acquired status quo.
74
The majority of social constructivist
arguments lead to the same claim that political actors mutually influence each
other’s behaviour, relationships and expectations, relying on the principle of
68
Schimmelfennig and Sedelmeier (2004), Mendelski (2012), Schimmelfennig and
Sedelmeier (2020).
69
Schimmelfennig and Sedelmeier (2004: 674–5).
70
Börzel and Risse (2000: 10–2), Héritier (2001: 4–5), Radaelli (2003a: 37–40).
71
Bulmer and Burch (1998), Bulmer (2008: 50–1).
72
Knill (2001), Cowles et al. (2001), Sverdrup (2008: 205).
73
Risse et al. (2001: 18).
74
Sedelmeier (2012).
2.1 Modelling De-Europeanization 37
pacta sunt servanda,
75
with socializing effects then being just as likely to lead to
sustained domestic change.
Taking as its starting point an observed formal reversal of reforms, the present
study thus rejects the thesis of the persistence of domestic change. It also
dismisses the premise that compliance and non-compliance depend solely on
structural factors, highlighting instead the important role played by domestic
political will. The institutional focus of top-down Europeanization research has
already drawn criticisms from several authors who oppose the reduction of policy
actors to mere facilitating factors and who consider such approaches to be
excessively structural.
76
By the same token, we will support here the idea of an
instrumental use of European rules by domestic political actors, and search for an
explanation of de-Europeanization at the level of the political elite. Institutions
are here viewed more as instruments for political leaders to realize their goals,
with political structures depending heavily on decision-makers’interests, their
will and capacity to act. This is not to deny the importance of institutional
structures, but to add to its actors-centred approach an observation of how
structural factors may affect the conduct and preference formation of political
actors. In a nutshell, it will be argued that Europeanization and reforms in
Romania are driven by the rationalist logic of consequentialism; they are not
however so much the result of EU’s adaptational pressure coupled with facilitat-
ing domestic factors, but follow from the preferences and strategies pursued by
domestic political elites, who are able to overcome institutional and structural
barriers in order to realize their goals. Persistence of reform would in this case
reflect the stability in the preferences of the domestic actors, while conversely,
de-Europeanization would mark a shift in the interests pursued at the domestic
level by the members of the political elite. As we will see, a high level of misfit, a
strong pressure for adaptation and the presence of domestic facilitating factors
can account for sustainable domestic change, but only as long as the preferences
of domestic political actors remain constant.
Europeanization East: The Conditionality-Driven Reform
Studies assessing the implementation of EU rules and policies have made valuable
contributions to our understanding of the degree of reform stability and the level of
domestic institutionalization of EU norms across European member states. As
emphasized above, a recurring theme in the literature is the fact that
Europeanization generates different adaptational pressures and different responses
to them. A wide and still evolving literature addresses the implementation of EU
norms (how they are transposed, enforced and applied in member states); it indicates
the leaders and laggards in implementation and provides multi-country groupings
75
Sverdrup (2008: 204–5).
76
Radaelli (2003a), Featherstone and Radaelli (2003), Jacquot and Woll (2004), Radaelli (2004),
Woll and Jacquot (2010).
38 2 Towards a Theory of De-Europeanization, an Elite-Based Approach
based on shared Europeanization experiences and similar compliance records.
77
Oriented towards a territorial logic of Europeanization, studies of implementation
have reviewed the impact of the EU on member states and groups of member states,
attempting to stake out different regional clusters: northern,
78
southern Europe,
79
or
Central Eastern and South-Eastern Europe.
80
Broad studies group European states
according to their administrative capacity and their power to resist pressures to
comply exerted on them by enforcement authorities,
81
or according to their
so-called culture of compliance.
82
What characterizes the Central and Eastern European (CEE) cluster is the signif-
icant gap between the transposition and the institutionalization of norms. Adopted
legislation often fails to become effective in practice largely due to weak bureau-
cracies, court systems or civil society.
83
Already at the level of transposing legisla-
tion, the pattern that dominates in CEE is one of domestic political considerations, in
which compliance depends largely on the constellations of actors and interests at the
domestic level.
There is however a broad consensus, particularly among scholars of
pre-accession Europeanization, that in terms of compliance the regional commonal-
ity of CEE derives less from a shared “culture of compliance”and the constellation
of interests at the domestic level, and more from the fact that the Union’s newest
member states faced a particular form of adaptational pressure that was determined
by the EU’s conditionality mechanism.
84
It is broadly assumed in the early
Europeanization East literature
85
and more recently in the literature on the Western
Balkans
86
that domestic change, if any, is enlargement-led. Reform is triggered
top-down through a mechanism of “reinforcement by reward”, through which a
candidate is offered the opportunity for membership if it complies with the EU’s
conditions and standards. Treaty-based sanctions are replaced by strong instruments
of persuasion, and the Union denies assistance, association or membership and
withholds conditional rewards for those candidates failing to meet the established
criteria. Relying mostly on a rational choice perspective, Europeanization East
scholars almost unanimously employ a top-down framework for their analyses, in
77
Falkner et al. (2007), Goetz (2008), Sverdrup (2008) including further reference.
78
Jacobsson et al. (2004), Dosenrode and Halkier (2004), Egeberg (2005), Grøn et al. (2015).
79
Featherstone and Kazamias (2001), Pinto and Teixeira (2002), Royo and Manuel (2003).
80
Dimitrova (2004), Schimmelfennig and Sedelmeier (2005, 2020), Vachudova (2005), Ágh (2010,
2015), Vachudova (2016), Bogaards (2018), Lacatus and Sedelmeier (2020).
81
Börzel et al. (2010, 2012).
82
Falkner et al. (2005), Goetz (2008: 74).
83
Falkner and Treib (2008: 308–9).
84
Schimmelfennig and Sedelmeier (2005, 2020), Steunenberg and Dimitrova (2007), Sedelmeier
(2008, 2012), Papadimitriou and Gateva (2009), Gateva (2010).
85
Schimmelfennig and Sedelmeier (2004).
86
Džankićet al. (2018).
2.1 Modelling De-Europeanization 39
which domestic change is brought about by a significantly high level of misfit
between the Union and a candidate state, which sets in motion reforms. Being utility
maximizers, the candidate states bear the costs of adaptation in their pursuit to secure
EU membership, thereby diminishing the misfit.
There are two types of conditionality identified in the literature: the democratic
conditionality and the acquis conditionality.
87
The former is an expression of the
states’requirement to adopt the general rules of liberal democracy, while the latter
concerns the specific rules of the EU acquis communautaire explicitly formulated as
prerequisites for EU membership. The former was intended as a precondition which
would bind the respective states to a democratic course of future action, and was
linked to the reward of opening accession negotiations with the EU. The latter
implied a formal transposition of EU laws, which was linked to a much greater
reward: the promise of acquiring membership.
88
Upon entering accession negotia-
tions, domestic change in CEE became mainly driven by the acquis conditionality,
with democratic conditionality usually playing only a background role. The
European Commission continued, however, to monitor the democratic performance
of states throughout their accession, and candidates faced the possibility of a
breakdown or delay in negotiations.
89
Over time, the EU leverage translated into domestic change in Central and Easter
Europe, yet mostly in those areas where the Union had a well-developed acquis.
90
At
least since the establishment of the Copenhagen criteria and the mechanism for
democratic conditionality, the EU sought to build and consolidate democracies in
CEE, yet with a questionable success. The external incentives for reform played a
major role in initiating democratic change, yet other domestic factors must have had
a significant effect on the stability of such democratic reforms. The changes in
Hungary and Poland referred to in the introductory chapter stand out as a proof of
an inefficient democratic conditionality. Without any post-accession monitoring and
sanctioning tools, the EU lacked, and still lacks, adequate mechanisms to prevent
member states’potential assaults on the rule of law and the democratic values.
91
While the use of conditionality by the European Union during its Eastern
enlargement has increased greatly in comparison with previous enlargement rounds,
the literature singles out Romania and Bulgaria as the only candidate states in the
region on which the Union was able to exert active leverage during their pre- and
post-accession period.
92
For Bulgaria and Romania the accession conditions were
rendered more severe: in addition to the unilateral suspension clause, which allows
cooperation to be terminated if either party does not comply, was added an
87
Schimmelfennig and Sedelmeier (2004).
88
Schimmelfennig and Sedelmeier (2004: 668–73).
89
Schimmelfennig and Sedelmeier (2004: 669).
90
Jacoby (2004) and Epstein and Jacoby (2014).
91
Closa and Kochenov (2016).
92
Papadimitriou and Gateva (2009), Spendzharova and Vachudova (2012), Vachudova (2016),
Lacatus and Sedelmeier (2020).
40 2 Towards a Theory of De-Europeanization, an Elite-Based Approach
unprecedented postponement clause, which allowed accession to be delayed in case
the candidate proved to be unprepared. More relevant still, they were not only
expected to meet tighter integrity standards before gaining EU membership, but
their justice and anti-corruption reforms continued to be monitored long after their
accession. The still ongoing Cooperation and Verification Mechanism (CVM) that
the two new member states have been subject to since 2006 is aimed at ensuring
progress in reform areas closely related to good governance and the rule of law:
judicial reform, the control of corruption and, in the case of Bulgaria alone, orga-
nized crime.
As displayed in Fig. 2.2,
93
the EU’s policy of conditionality towards the states in
CEE preserved a high degree of flexibility, allowing the Union to better regulate the
range and timing for delivering its rewards to each candidate individually while
taking into account the merits and performance of each accession state.
94
Anticipat-
ing the bigger challenges posed by Bulgaria and Romania, the EU tightened its
pre-accession democratic requirements in order to prevent “the short term effective-
ness of rule transposition in the context of conditionality (to) be compromised by
medium-term ineffectiveness of implementation”.
95
Also bearing in mind the fact
that Bulgaria and Romania had to go through significant institutional, administrative
and political adjustments in a relatively short period of time and under strong
adaptational pressure from above, a post-accession slowdown or even halt of
reforms was to be expected and thus counterbalanced by an extended
conditionality.
96
Fig. 2.2 EU’s policy of conditionality for Central and Eastern Europe
93
Source: Papadimitriou and Gateva (2009: 158).
94
Papadimitriou and Gateva (2009: 155–60).
95
Schimmelfennig and Sedelmeier (2004: 676).
96
Vachudova (2009).
2.1 Modelling De-Europeanization 41
Can enhanced conditionality secure sustainable reforms? Scholars of
Europeanization East do question the effectiveness of conditionality and rule adop-
tion and implementation in the new member states once they acquired full member-
ship.
97
They firmly maintain that the EU’s conditionality has an expiration date.
Enlargement is viewed as a bargaining game with accession as the last and least
surprising round and with conditionality unequally efficient throughout the game,
98
the EU’s bargaining power drastically diminishing once the accession date is set and
even more so once the accession is complete. Consequently, it is in the phases before
accession that the Union can successfully use its leverage to lay down and enforce
conditions. Once accession is set and done, compliance and progress with further
reforms have to be based on other mechanisms than those used in the pre-accession
phase. Arguably, post-accession conditionality for Romania and Bulgaria was there-
fore established to counterbalance the diminished effectiveness of conditionality
once the reward of full membership was delivered. The regular biannual reports
issued by the European Commission and its monitoring under the Cooperation and
Verification Mechanism aim at upholding the threat of withdrawal of benefits and
subsidies for the two member states and ensure they act in compliance.
But were these tighter accession and post-accession criteria enough to secure
long-term compliance? Empirical studies of Europeanization East paint a mixed
picture of the institutionalization of change and the enforcement of the norms
adopted before accession. In certain policy areas, the EU appears to have played a
major role in triggering compliance, yet in other areas it has not.
99
All in all,
however, despite the EU’s diminished leverage to ensure compliance in the post-
enlargement phase, it still appears to have a rather strong influence in Central and
Eastern Europe after having delivered the highly desired membership reward.
100
Assessing post-accession infringement of European legislation among Central and
Eastern member states, research
101
reveals that the success of pre-accession condi-
tionality proved to be largely sustainable even after these states had acquired full
membership. Quantitative data on compliance gathered in the countries that joined
the Union in 2004 show that post-accession compliance in the EU8 proved to be
“surprisingly good”and in fact at the moment of inquiry outperformed the old
member states in terms of alignment with EU law.
102
It is persuasively argued that
domestic institutional obstacles or costs arising from an eventual reversal of change
might have a positive impact on post-accession compliance. A “lock-in”of pre-
accession-institutional change contributes to sustainable reforms after a state’s
97
Moravcsik and Vachudova (2003), Schimmelfennig and Sedelmeier (2004), Börzel (2006),
Dimitrova (2006), Ladrech (2010).
98
Steunenberg and Dimitrova (2007).
99
Epstein and Sedelmeier (2008), Pridham (2008a), Vachudova (2014).
100
Pridham (2006), Sedelmeier (2008), Levitz and Pop-Eleches (2010), Sedelmeier (2012).
101
Sedelmeier (2008, 2012), Buzogány (2021).
102
Sedelmeier (2008: 807), Buzogány (2021: 193–6).
42 2 Towards a Theory of De-Europeanization, an Elite-Based Approach
accession to the EU.
103
With a focus on the domestic costs of reform reversal and the
potential domestic veto players that might oppose an eventual setback, such studies
provide good reasons to expect post-accession Europeanization to be consistent with
pre-accession developments. Relying on both the idea of enhanced and widened EU
conditionality—extended in the case of Romania and Bulgaria to the post-accession
period—and on the idea of a path-dependent trajectory pursued by new members
after their joining the Union, much of the research assumes and provides reasons to
believe that produced change is sticky. New member states are expected and seen to
slow down or even halt reforms after their accession, yet the results already achieved
are reasonably believed to persist during the post-accession period. One recent study
on the EU’s ability to foster member states’compliance in the areas subject to post-
accession conditionality covered all CVM reports published by the Commission
between 2007 and 2018; the developments in Romania in particular are regarded as
fairly positive, with an optimistic outlook on the success of the EU’s“mechanism of
monitoring without enforcement”.
104
Yet, a more fine-grained analysis conducted at the level of legislative drafting in
Romania after January 2007 shows clearly that the mechanism of conditionality,
even though extended through the post-accession period, lacked strength. Romania’s
post-accession developments offer a puzzling picture: it successfully Europeanized
in fields where less adaptational pressure was posed from above, and at the same
time, it de-Europeanized its integrity and anti-corruption reform which was subject
to intense monitoring both before as well as after accession. The EU proved much
more successful in promoting positive economic effects and in enhancing Romania’s
institutional capacity,
105
without however actually improving either the anti-
corruption legislative framework, or the control of corruption on the ground. As
counter-intuitive as it may seem, a high level of corruption and a highly developed
social order are not at all mutually exclusive.
106
By making a clear distinction between the opportunity structure and the incen-
tives pursued at the EU level on the one hand, and at the domestic level on the other,
studies of post-accession Europeanization
107
rightly claim that the European Union’s
leverage translates into domestic change only if the EU incentives are echoed by the
interests pursued at the domestic level. As soon as the preferences of the domestic
actors diverge from those of the EU, states are likely to halt reforms or even reverse
them. Indeed, measures promoting justice and anti-corruption reforms, while serving
the interests of a society at large become inconvenient for corrupt ruling elites, since
the latter are tempted to compromise on the quality of adopted reforms and reverse
the positive legislative changes that have been undertaken. Romania—and likewise,
the Czech Republic, Slovakia, Bulgaria and Latvia—display high levels of
103
Sedelmeier (2012).
104
Lacatus and Sedelmeier (2020: 1252).
105
Mendelski (2012), Lacatus and Sedelmeier (2020).
106
Innes (2014: 89).
107
Spendzharova and Vachudova (2012), Mendelski (2012), Ganev (2013), Vachudova (2014).
2.1 Modelling De-Europeanization 43
“corporate state capture”throughout their post-accession period, with the domestic
political elites instrumentally using public power to achieve private benefits.
108
In a
valuable contribution to the body of Europeanization East literature, Innes stresses
this aspect:
The stable party competitions and Weberian states of post-war western Europe were founded
on strong elite commitments to democracy and socially embedded through sustained
productivity growth and universally rising living standards. But those conditions have
never existed in central Europe.
109
She gives a compelling account of how the evolution of political parties into
“brokerage firms”in states like the Czech Republic or Romania reveal a pragmatic
approach to politics, in which ruling elites use and abuse the existing democratic
framework in pursuit of personal gains.
110
Seen in this light, fighting corruption is
very unlikely to be done by the very political elite which profits from the
embeddedness of corrupt practices in state institutions. Implementing sound anti-
corruption reforms would cause the already corrupt political elites to suffer more
losses than gains.
111
Quantitative research
112
into the EU’s potential to influence corruption levels in
Central and Eastern European states provides strong support for the argument that
these countries’control of corruption increased prior to their membership and
significantly weakened in its aftermath. The candidates joining the Union in 2004
and 2007 generally experienced significant setbacks in comparison to their own anti-
corruption efforts undertaken before accession. Such a shift was experienced not
only by “the usual suspects, Romania and Bulgaria”,
113
but also by Hungary,
Lithuania, Poland, Slovakia and Slovenia. The observed U-turn can be explained
by a change in the EU’s political leverage after enlargement. In the post-accession
period, in contrast to pre-accession, the Union seems to have lost its ability to
motivate and mobilize domestic opposition parties to pressure their governments
to seriously fight corruption. The failure of Central and East-European opposition
parties to challenge the corruption-prone practices of governments is not at all
surprising in states in which “corrupt behaviour is the only game in town.”
114
In
contexts where corruption is endemic and where neither governments nor opposition
parties are genuinely committed to achieving rule of law, the EU’s conditionality
cannot generate substantial anti-corruption reforms. The present theoretical
approach builds on this line of argument, stressing the crucial role played by
domestic political elites in bringing the legal and social reality in line with EU
requirements.
108
Innes (2014), Vachudova (2016).
109
Innes (2014: 88).
110
Innes (2014: 97–102).
111
Mungiu-Pippidi (2015: 195–203).
112
Kartal (2014).
113
Kartal (2014: 945).
114
Papakostas (2013: 56).
44 2 Towards a Theory of De-Europeanization, an Elite-Based Approach
Following this logic, we can explain Romania’s reform reversal since January
2007 by focusing in particular on evidence of legal corruption, which occurs when
legislators use their entrusted power in order to extract personal benefits, despite
their declared commitments to integrity and good governance and despite the EU’s
continuous monitoring and benchmarking. This argument is grounded in the
assumption that the EU’s democratic and post-accession conditionality alone is
insufficient to curb corruption and ensure the rule of law, and that the interests of
the domestic political elite play a key role in the success of EU-driven reforms. As
already mentioned above, the European Commission set high standards and ambi-
tious requirements for Central and Eastern European states, and even more so for
Romania, by means of post-accession conditionality. Yet, as a result, instead of
implementing genuine integrity and justice reforms, Romania developed novel
methods of abuse. Despite being the subject of intense monitoring through the
Cooperation and Verification Mechanism, the member state not only failed to
specifically and adequately outlaw corrupt behaviour, but it adopted instead legisla-
tive measures that show a shift from overt to more discreet forms of abuse. We
cannot understate the importance of identifying (ideally at an early stage) the subtle
ways in which political elites reverse legislation and weaken the mechanisms for
curbing corruption.
By situating extensive empirical research within a revised framework for
assessing (non-)compliance, this study is able to address a number of gaps in the
literature on Europeanization. It contributes to existing top-down Europeanization
literature in general by adopting a less institutionalist perspective and investigating
the relevance of the elite’s interests for the effective transposition and application of
EU norms, and contributes to Europeanization East literature by providing a more
rigorous explanation of post-accession setbacks by placing the emphasis on domes-
tic, rather than European, catalysts for change. This is not to suggest that the Union’s
policy of conditionality is irrelevant for Europeanization and sustainable domestic
change, but rather that the adaptational pressure posed by the EU both before and
after a state’s accession is not the primary driving force shaping reforms. Successful
Europeanization is highly dependent on the personal preferences of domestic polit-
ical elites. In contrast to the literature that emphasizes the inherent stickiness of
domestic reforms, the current research will build instead on the idea of the resilience
and flexibility that is inherent in law-making, and thus bring into sharper focus the
legislator’s ability to amend legislation on the one hand, and the rational motivation
that informs policy change on the other. This approach allows us to assess
Europeanization with a focus on preferences to be pursued, rather than institutions
to be strengthened and capacities to be built. The domestic political elite is thought to
be capable of overcoming any institutional and structural barriers to realizing its
goals, especially in the context of (de)Europeanization; by acting in compliance
before achieving full EU membership, the elite demonstrated that institutional
capacities exist when there is adequate political will. In fact, this marks a phenom-
enon that still persists in most of the Central Eastern and South-Eastern European
2.1 Modelling De-Europeanization 45
states, in which political institutions can only be as strong as their actors allow them
to be.
115
Europeanizing reforms aim to serve a broad European public, their design being
detached from the narrow personal interests of individuals or particular groups. It
would, however, be naïve to expect that all reformers always commit to such
reforms. Domestic reformers, particularly in allegedly corrupt contexts, might
advance, or on the contrary even frustrate, change in pursuit of interests other than
those serving the society at large. As a result, they may reverse reform as soon as the
newly acquired status quo becomes inconvenient. The aim here is to embark on an
in-depth assessment of Romania’s legislative reforms shaped by EU conditionality
with a careful view to laying bare the intentions and interests of the legislators in
passing and amending the respective acts. The model put forward here offers a
pertinent explanation of Romania’s post-accession de-Europeanization, its question-
able political governance and its rather weak respect for the rule of law. An elite-
based approach is needed for understanding what drives and constrains reforms in
Central Eastern and South-Eastern Europe, and potentially in other EU member or
candidate states, with a focus on the behavioural patterns of the political elites and
the factors that trigger a self-interested conduct of these elites, their abuse of power
and their readiness to sacrifice societal well-being for narrow personal benefits.
2.2 An Elite-Based Approach
The entire European construction, the commitments made and the numerous steps
taken towards integration would not have been possible without the efforts under-
taken by political elites. The contractual and legislative nature of ongoing European
integration and Europeanization accords a key role to the members of the national
political elites, who are guiding and driving these processes.
116
Therefore, if one
takes for granted the importance of treaties for the European integration, one cannot
deny the pivotal role played by the political decision-makers in reaching those
agreements and signing those treaties. Similarly, if one takes for granted the impor-
tance of law-making in the process of Europeanization, one cannot deny the rele-
vance of national lawmakers in such a process of domestic legislative reform. It is
the political elite in a state which is pre-eminent in deciding on the nature, form and
content of any EU-driven law and, more importantly, on the extent to which the rule
of law is de facto realized at the domestic level. An overwhelming amount of
Europeanization literature, however, largely disregards these aspects, “attributing
to elites, perhaps with the exception of initiating the process, the subsidiary role of
merely following a predetermined course of history.”
117
115
Gallina (2008: 64).
116
Best et al. (2012b).
117
Best et al. (2012a: 2).
46 2 Towards a Theory of De-Europeanization, an Elite-Based Approach
The present research departs from such deterministic narratives by questioning
the stickiness of institutions and of adopted norms, and by disputing the fact that
Europeanizing change is mostly the result of a path-dependent process of adaptation
or inadaptation. It stresses instead the flexibility and reversibility of reforms and the
direct and immediate impact that legislators have upon the legislative output, and
thus on Europeanization itself. While acknowledging the importance of formally
established institutions, the present theoretical model postulates that the political
elites play a crucial role in shaping and changing institutional designs, and in
controlling and managing a state’s political architecture.
118
Drawing on elite theory,
this model moves beyond existing research and links Europeanization literature with
studies on democratic leadership.
The domestic political elite is crucial in bringing social and legal reality in line
with EU requirements on the one hand, and the desires of the society at large on the
other hand. The members of the political elite are the actors who, in pursuit of
societal goals and honouring their European commitments, set the agenda for
decision-making, and draft and adopt legislation which leads to successful
Europeanization. Their behaviour and actions therefore play a highly significant
role in both meeting European requirements and satisfying societal preferences. By
assessing the behaviour and the interests pursued by the political elite, the present
approach not only provides a more comprehensive analysis of compliance and
non-compliance with European norms, it also gives a valuable account of the quality
of political representation, by showing the extent to which political representatives
respond to the preferences and concerns of those they represent.
The present argument is based on an understanding of Europeanization as
primarily driven by the pursuit of societal interests and the satisfaction of societal
needs. De-Europeanization, conversely, is associated with a divergence from soci-
etal needs and preferences. This does not mean that every society in Europe is here
understood to be characterized by homogeneous preferences across its various
population groups. The concern here is not with the plurality or homogeneity of
societal interests, but rather with those instances in which political decision-making
does not accommodate any societal preferences, and is reduced to a mere pursuit of
personal goals by the members of the political elite. Assuming that private and
societal interests tend to conflict in corrupt contexts, this book consequently seeks to
locate the areas in which the preferences of the elected representatives and the
preferences of the electors diverge. It does not claim that the decisions adopted by
the elite necessarily contradict or ignore societal interests, but that when they do, it
distorts political representation and hinders reform. Theorists of representative
government, such as John Stuart Mill, have long voiced such concerns:
One of the greatest dangers ...of democracy, as of all other forms of government, lies in the
sinister interest of the holders of power: it is the danger of class legislation; of government
intended for (whether really effecting it or not) the immediate benefit of the dominant class,
to the lasting detriment of the whole. And one of the most important questions demanding
118
Higley and Lengyel (2000a).
2.2 An Elite-Based Approach 47
consideration, in determining the best constitution of a representative government, is how to
provide efficacious securities against this evil.
119
The elite’s behaviour, its attitudes and preferences take on significance here only
in terms of this relationship between rulers and ruled, between representatives and
the represented. Turning the focus to the domestic political elite in studying the
process of Europeanization does not imply that the preferences of the society at large
are of lesser explanatory relevance. On the contrary, nonelite preferences in fact
provide the metric against which to measure the appropriateness of elite actions, for
the interests of the society at large are the ones that orient—or should orient—the
decisions of the political elite. The model of de-Europeanization proposed here thus
assesses the impact of the political elite on the process of domestic reform, by
inquiring into the extent to which the members of the elite put their own personal
interests before the interests of their constituents.
Highly relevant in this respect is not only the degree to which the elite allows
personal—and not societal—preferences to shape domestic legislative decisions, but
also the degree to which the nonelites are vocal in defending their own interests. The
underlying logic in this respect is that in order for elites to adequately respond to
nonelites’desires and needs, they must know what these desires and needs are, and
more importantly, they must have incentives to respond to them.
120
If the elected
representatives are to consider the interests of the electors, a mobilization of societal
action needs to occur. Indeed, the success of reforms and of Europeanization is a
result of the preferences of domestic representatives, but also of the involvement and
behaviour of those represented. An active participation in policy processes and a
vigorous overseeing of the elite’s performance and conduct by civil society and the
broader public (e.g. by taking part in advisory or governing panels, by filing petitions
that invite policy-makers to consider specific measures, or by attending public
consultations and contributing with expert opinions) enhances the quality of repre-
sentation, and encourages decision-makers in legislative fora to pursue sound and
stable reforms. Without such an involvement of the nonelite, the elite would remain
“likely, when faced with a discrepancy between their own interests and those of their
followers, to favour the former.”
121
On these grounds, the inquiry into the interests
of political elites in promoting or inhibiting legislative reforms that embrace
Europeanization will be complemented by an assessment of societal engagement
and public scrutiny over legislative action. This will be a recurring theme throughout
the subsequent analysis.
At heart, this book explains reform reversal in European domestic contexts by
proposing an elite-based theoretical model observing (1) the structural factors that
influence the behaviour of the elite, (2) the preferences pursued by the members of
the ruling stratum in their legislative capacity, and (3) the linkages or divides
between elites and nonelites in what regards the content of adopted legislation. It
119
Mill (1861/2008: 299).
120
Putnam (1976: 140–64).
121
Putnam (1976: 162).
48 2 Towards a Theory of De-Europeanization, an Elite-Based Approach
thus examines the extent to which Europeanization, and de-Europeanization, respec-
tively, are elite-driven and elite-interest-based process. In this section we will first
refine our definition of an elite, conceptualizing it for the present purpose as a centre
of legislative power. Secondly, we will reflect on structural factors and the extent to
which they might impact the behaviour of elite members, their preference formation
and their use of power. In line with more conventional theories on political elites, we
will delve into the study of elite permeability, the circulation patterns and dynamics
of the political elite, the institutional context in which elites are situated and the
linkages between the elite members with a particular emphasis on their respective
level of solidarity and value consensus. Finally, we will examine the nature of the
relationship between representatives and the represented, between elites and non-
elites. This will involve questioning the extent to which leaders and the governed are
congruent in their values and interests, and examining the role played by nonelites
(civil society, among others) as a control factor that secures the responsiveness of
elites to societal needs and wishes. This discussion of political elites serves as an
ideal preface for the next section, which will propose a model of de-Europeanization.
2.2.1 The Political Elite: A Site of Legislative Power
Classical elite theorists—Mosca, Pareto and Michels
122
—recognize the existence in
every society of a narrow ruling minority that monopolizes power and fulfils all the
political functions: the political elite. They build their argument on the premise that
power is distributed asymmetrically in society and that, for practical reasons,
societies neither could nor should function otherwise. These early elite theorists
advanced the argument that an elite of some kind is unavoidable in any stable
society, as only a small minority has superior organizing capacities. Elites are crucial
for any democratic system, which is propelled by masses but driven by political
leaders.
123
Building on this premise of a functional imperative that every society
needs to be led by a political elite, the present study will broadly subsume under the
notion of political elite the group of politically effective actors in a society. The elites
are, in brief, the holders of direct power over political decision-making.
The focus on the elite as a group of directly powerful actors requires first and
foremost a clarification of the understanding of power employed here. Drawing on
Putnam,
124
the present approach will distinguish in the first place between power as
the ability to influence others and power as the ability to influence collective
decision-making. The two are not mutually exclusive; it may be expected from a
political elite to use its power over people in order to achieve power over decision-
making. At the same time, having power over decision-making often results in
122
Mosca (1939), Pareto (1966), Michels (1968).
123
Best and Higley (2010: 3).
124
Putnam (1976: 5–8).
2.2 An Elite-Based Approach 49
influencing the behaviour of those people affected by the respective decisions, that
is, in exercising power over people. However, in studying political elites, as Putnam
argued, what alone counts is the elite’s ability to influence political outcomes.
125
Indeed, power over people is only politically relevant when used to produce political
outcomes. Political elites have power over people as long as they “devise and deploy
political formulas tailored to independently existing nonelite interests and
sentiments.”
126
Accordingly, the notion of power employed in this book, even though of a
pluralist nature, does not lend itself to the kind of relational zero-sum interpretation
proposed by Dahl in his early studies. In broad terms, Dahl conceptualized power as
a relation between people in which one actor exploits a set of resources in order to
alter the behaviour of another;
127
any increase of one’s power can only come, in his
understanding, at the expense of someone else’s power. For the present study, it is
more appropriate to single out the non-relational and non-coercive dimension of
power, and thereby adopt a positive-sum pluralist view. Political power here indi-
cates an ability rather than a relationship between actors, excluding altogether the
idea that power is exercised over people; it is “power to”rather than “power
over”.
128
Sharp’sdefinition of power best captures the mechanisms under study
here, and is well tailored to the theoretical point which drives this study. Power, he
argues, “means the capacity of people to act in order to achieve objectives even in the
face of opposition”.
129
At the core of this definition is the belief that power is not necessarily held by
those few occupying pivotal positions, but rather that it rises from many parts of
society.
130
The power of the elite depends, for instance, upon the consent of the
society it rules and is not necessarily generated by the ruling few. Such a pluralistic
perspective has a particular merit, in that it allows for the possibility that the power of
the governing elite is either challenged or supported through the actions of various
social groups, mass mobilization and civil engagement. What distinguishes elite
from societal power, however, is the manner in which it is exercised, and the actual
decisional involvement among the respective holders of power. If we take for
granted the fact that plenty of individuals may have the power to affect collective
decisions, yet few decide upon public policy, we can identify three degrees of power
that shape political outcomes: direct influence, indirect influence and spurious
influence.
131
As Fig. 2.3
132
illustrates, an actor or a group of actors can exert direct
125
Putnam (1976: 6).
126
Higley and Burton (2006: 4).
127
Dahl (1957).
128
This conceptualization of power is inspired by the definitions proposed by Arendt (1970) and
Parsons (1963) and informed by Lukes’s (2005, 2015) theory of power.
129
Sharp (1980: 312).
130
Sharp (1973: 8).
131
Putnam (1976: 6–7).
132
Inspired by, yet slightly distinct form, Putnam (1976: 7).
50 2 Towards a Theory of De-Europeanization, an Elite-Based Approach
influence over political outcomes through participation in final decision-making,
indirect influence by swaying the decisions of other actors involved directly in
decision-making, or spurious influence by affecting policy-making directly while
at the same time determining the stand taken by other actors with no capacity to
influence the political outcomes directly themselves.
The political elite as conceptualized here is distinguished by the fact that it is
granted exclusive possession of direct power over political decision-making. Each
society is formed of various groups of power holders, yet most of this power is an
expression of indirect influence over political output; societal groups—forming the
nonelite—depend upon the elite to implement decisions leading to the achievement
of their goals. Building on this premise, the definition of political elite employed here
resonates well, albeit not entirely, with Burton, Gunther and Higley’s
133
understand-
ing of the term as a group of persons who are able, by virtue of their strategic
positions, to affect national political outcomes regularly (their points of view and
actions are important factors for any continuities and changes in regimes and
policies) and substantially (without their support or opposition a political outcome
would be noticeably different).
This rather broad definition applies to a number of functionally differentiated
groups, including political, administrative, economic, military, religious or social
elites, among which there are members of the legislature, members of the govern-
ment, party officials as well as senior public servants; owners and CEOs of important
business corporations or companies; leaders of large labour unions and pressure
groups; top military officers; key religious figures; as well as prominent lawyers,
economists or journalists.
134
Although used in recent studies evaluating democratic
performance in CEE,
135
such a far-reaching definition would fall short of accurately
reflecting how the behaviour of the political elite impacts on the legislative output
and in particular on the transposition of European norms. Moreover, employing such
Fig. 2.3 Three types of political influence
133
Burton et al. (1992: 8).
134
Best and Higley (2010: 6).
135
Rupnik and Zielonka (2013).
2.2 An Elite-Based Approach 51
an extensive definition would make it difficult to establish the boundaries of the elite
group, and thus render the analysis ineffective. A much narrower use of the term will
better serve the purpose of the present book.
As noted above, the notion of the political elite will here be essentially linked to
the idea of direct influence on political and legislative outcomes and confined to
those political actors who are directly involved in policy-making by initiating,
drafting and adopting legislation (i.e. the parliament, the government in its capacity
to initiate legislation and to legislate by decree, and the president as the promulgator
of law). In restricting the analysis to those legislative bodies at the very top of the
chain of representation, who exercise direct power over policy-making, and thus
play a pivotal role in the process of Europeanization we will be able to focus more
closely on the impact of their behaviour and interests in the process of adopting
EU-driven reforms.
Narrowing down the understanding of domestic political elites to the legislative
bodies is not to claim that legislatures govern and drive the entire process of
Europeanization. Given, however, the definition of Europeanization as employed
here, which is restricted to the transposition of norms generated at the EU level, it is
critical to assess the interests and behaviour of legislators, who formulate, amend,
adopt and promulgate European norms. They transpose European legislation, but
also limit, check and balance governmental powers, and more importantly, they play
a crucial role in linking governments with the represented, opening avenues for
public participation and formalizing nonelite interests into law.
136
Therefore, an
inquiry into the behaviour of the legislative bodies is relevant to understanding the
progress of Europeanizing reforms, but also the level of attainment of societal goals.
At the same time, employing such a highly restrictive notion of the political elite
helps to identify and measure the occurrence of legal corruption and its impact on
reform development, issues and nuances that may otherwise be overlooked or
downplayed in the study of Europeanization.
Obviously, such an approach leads to a clear differentiation between the domestic
elite and the nonelite. The political elite is made up of those actors whose role is to
translate nonelite interests into specific legislative acts. This definition is close to
Plamenatz’s
137
view of democracy: it is a government by consent of the governed,
where the elected are entrusted by the electors to represent their interests, enjoying a
free mandate and a high degree of autonomy in their actions. At the same time,
Plamenatz claims that voters “must understand the significance of what they are
136
Mosca (1939) cited by Kim and Patterson (1983: 220–1).
137
In line with Körösényi (2010) it is here considered that Plamenatz (1973) and his model
democratic control strikes a fine balance between Dahl and Schumpeter. Dahl understands demo-
cratic representation in terms of a delegation with a clear mandate from the voters—assumed to be
well informed and competent—this approach disregarding thereby the idea of elite autonomy. At
the opposite pole, Schumpeter (1942/1976) argues that voters rule only through their elected
representatives, the latter enjoying an unbounded mandate and complete decision-making auton-
omy once they are elected; voters are in this case political consumers who are merely in charge of
producing a government.
52 2 Towards a Theory of De-Europeanization, an Elite-Based Approach
doing”; they must grasp the relevance of their choice and be able to hold—ex ante or
ex post—their rulers to account.
138
An essential point underlying the present con-
ceptualization of the political elite is that elites and nonelites are equally but
differently powerful. This rather bold statement follows from the fact that while
political elites shape political outcomes, adopt collective decisions, define policies
and activities of the state, and enjoy a high degree of independence in order to act in
the name of nonelites; the nonelites still play a pivotal role in investing the elite with
power and legitimizing their authority. Direct power is institutionally designed to lie
in the hands of the political representatives, but the legitimacy and authority of the
political elite ultimately rests upon how embedded the respective legislature is in
society as a whole.
139
Accepting this claim is not to deny the importance of the rule
of law, of due process or of institutional checks and balances, but rather to maintain
that formal constitutional and institutional arrangements alone are insufficient to
guarantee the pursuit of societal interests and prevent abuses of direct power. A
constitution and a set of norms outlining the structure and the proper functioning of a
democracy do not suffice to limit the power of the ruling few whenever they have the
tendency to abuse this power. A counter-tendency is required; a need for societal
forces with the capacity to constrain and control rulers’abuse of influence and ensure
their pursuit of societal goals.
140
In a weak society unable to exert indirect power
over its political elite, the latter may extend its powers beyond its legitimate limits. It
is on these grounds that the present study inquires primarily into the preferences and
behaviour of the Romanian legislatures in the process of Europeanization, but
assesses at the same time the societal interests, the civic responses to
Europeanizing reforms and the level of engagement among those represented.
In sum, building on the premises of democratic elitism, the term political elite
refers here to the political actors who hold direct power over legislative decision-
making and thus, over Europeanizing reforms, and who are expected to act in
compliance with their legal obligations under EU law and in a responsive and
responsible manner towards the nonelites they represent. As has already been
noted, the notion of the political elite gains much of its substance when used to
examine the relationship between elites and nonelites. Consequently, in line with
mainstream Europeanization studies, the present book determines how capable the
domestic political elite is to comply with its European obligations, but at the same
time it explores the extent to which representatives’legislative choices reflect the
preferences and needs of those they represent. In contrast to neo-institutionalist
theorizing—which builds on the assumption that institutional design itself limits
elite choices and prevents abuses—the present argument places a much higher
emphasis on agency rather than structure, taking for granted the elite’s autonomy
and its freedom of action vis-à-vis European and domestic institutional constraints.
Institutional rationality recedes here to the background, the focus being placed on the
138
Plamenatz (1973) cited by Körösényi (2010: 48–51).
139
Mosca (1939: 121).
140
Sharp (1980: 47–9).
2.2 An Elite-Based Approach 53
elite’s behaviour, their level of commitment towards their European obligations on
the one hand, and their level of responsibility towards societal needs on the other
hand. Nonelite participation and public contestation are here regarded as effective
instruments to influence the behaviour of political elites. If they are absent, European
pressures for reform and EU conditionality cannot lead to successful and sustainable
Europeanization.
Finally, it is important to highlight the fact that the notion of the elite is here not
conceptually linked to the idea of a cohesive group, as it is by C. Wright Mills in his
model of the “power elite”.
141
While all members of the political elite, as political
representatives, are presumably equally powerful to influence law- and policy-
making, with an equal and effective opportunity to affect political decisions, the
actual exercise of power and the ability to impact on decisions and policies is still a
result of interaction among these members of the political elite, who compete in
order to represent and protect the interests of their respective constituents. Different
constellations of actors may adopt distinct positions and support different decisions
at different points in time, which will affect legislative output to varying degrees. As
employed here, the concept thus follows a pluralist logic: the elite consists not of a
unitary group, but rather of a multitude of groups with a power structure that varies
from issue to issue, such as Dahl has described.
There exist many different sets of leaders, each set has somewhat different objectives from
the others, each has access to its own political resources, each is relatively independent of the
others. There does not exist a single set of all powerful leaders who are wholly agreed on
their major goals. Ordinarily, the making of government policies requires a coalition of
different sets of leaders who have divergent goals.
142
The elite rarely represents a single general will, but fairly often a plurality of
varying and conflicting wills.
143
The members of any political elite are seldom
homogeneous in terms of their preferences and their control over decision-making,
just as the members of any society are seldom homogeneous in terms of their
interests and needs. Romania is no exception. Following this logic, the competitive-
ness rather than the cohesion of Romania’s political elite is here taken for granted.
However, the extent to which this political elite is internally united or disunited is a
detail worth considering, not least because the lack of an underlying consensus of the
ruling class (with regard to the democratic rules of the game and the values to be
observed while legislating) may contribute to political destabilization and reform
reversal. Understanding how the structure of the elite, its integration or the lack
thereof affects its members’patterns of behaviour, and thus its impact on reforms,
lies at the core of this argument and will be discussed in greater detail in the
following section and substantiated empirically in the following chapter.
141
Mills (1956).
142
Dahl (1967: 188–9).
143
Newton (1994: 18).
54 2 Towards a Theory of De-Europeanization, an Elite-Based Approach
2.2.2 Elite Fragmentation
The structure of the political elite, and in particular the extent to which this elite is
integrated, has important implications for the functioning of a democratic system, for
the efficiency of policy-making, and for the quantity and quality of legislative
output. As noted above, the present argument holds the pluralism of elite structures
as axiomatic, the elite consisting of various narrowly based groups whose influence
is confined to those issues that are relevant for their respective constituencies. A
certain degree of fragmentation of the elite is in this case crucial for preserving the
democratic balance. However, neither a too weak nor a too intense fragmentation of
the ruling class in terms of power, views and pursued preferences is desirable in a
democratic society. Best and Higley clearly formulate this concern in their pertinent
claim that “neither a deeply disunited nor a tightly united political elite is compatible
with representative democracy.”
144
A strongly united political elite may be hostile
and intolerant towards preferences or positions diverging from their pursued ideol-
ogy or goals; a very high level of cohesion and integration of the political elite is very
likely to reduce its accountability, limiting its flexibility and sensitivity towards
opposing viewpoints and interests. Conversely, a profoundly disunited political elite
may be unable to reach a consensus either on issue-specific questions or on the rules
of the political game in general. A very low integration of the elite may be equally
harmful for a functioning democracy; a highly fragmented political elite only allows
for a limited flow of information and impedes the creation of mutual trust among its
members, which delays political reforms and eventually leads to stagnation.
145
The
degree of integration or disintegration of the elite thus conditions the nature and
stability of reforms, and more broadly, of the democratic governance.
Drawing on the work of Putnam
146
the following analysis will emphasize those
structural characteristics of the elite that may significantly influence its level of
integration or disintegration: the dynamics of the ruling stratum (the recruitment
patterns and the permeability of the political elite), the institutional context (the
existing cross-institutional synergies or conflicts of interest) and the linkages
between elite members (their level of value consensus and their degree of group
solidarity).
147
Conventional theories on elites consider the manner in which the elite
renews itself over time—its circulation patterns—to have a profound influence on its
level of integration, and thus indirectly affect the conduct of its members. Addition-
ally, the institutional context—the division of roles and duties, the defined strategies
and the adopted organizational loyalties characteristic of each law-making body—
144
Best and Higley (2010: 7).
145
Edling et al. (2015: 50).
146
Putnam (1976: 107–23).
147
Two other factors identified by Putnam (1976) in his extensive study were with due consider-
ation excluded from the present analysis: the social homogeneity, and the personal interaction.
Social homogeneity and a high level of personal and family ties among the members of the political
elite are less common and less relevant in a study of elected representatives.
2.2 An Elite-Based Approach 55
might either discourage the integration of the actors within it, if institutional prefer-
ences diverge, or on the contrary, might lead to complementary actions in the case of
an overlap of institutional interests.
148
Yet the most central dimension of elite
integration is the extent to which the members of the ruling stratum agree on policy
procedures on the one hand, and on policy choices on the other.
149
The degree to
which political elites are coherent with respect to the rules of the game, their
agreement on political procedures and their commitment towards democratic prin-
ciples and the rule of law, their readiness for cooperation as well as their level of
mutual confidence are all crucial factors that contribute to elite integration.
The first factor assumed to be relevant for the degree of integration within the
ruling stratum is the circulation of the elites. As noted above, the element most
stressed by classical elite theory in determining the degree of elite integration or
disintegration is the manner in which elites seize and preserve power, their perme-
ability and renewal patterns. Both Mosca
150
and Pareto
151
emphasize the tension
inherent in every society between the elite group, formed by old members willing to
preserve power, and new nonelite forces contesting this established ruling order.
Such a conflict can only be avoided by a gradual elite change and a high degree of
openness of the governing elite towards recruiting and incorporating nonelite mem-
bers. Conversely, a lack of willingness on behalf of the old elite to recruit new
members forces the ruling stratum into a more dramatic change: revolutions and
radical replacements. Elite change patterns thus significantly affect the stability of
the political system, while they at the same time influence the level of unity and
consensus among political representatives.
152
Drawing on Mosca and Pareto, Higley and Lengyel
153
construct a model of elite
circulation, proceeding on the same assumption that elites are the ones responsible
for elite change.
154
Their model (Fig. 2.4
155
) is parameterized in terms of the scope
and mode of elite change, with the former addressing the horizontal range of affected
positions and the vertical depth from which the new recruits come, while the latter
refers to the speed and manner in which elite circulation occurs. With respect to the
scope of elite circulation, the extent to which it has a wide or narrow range of
affected positions co-varies with the vertical depth from which the newcomers enter
the elite: either from second-echelon positions (shallow circulation) or from lower
148
Putnam (1976: 122).
149
Putnam (1976: 115).
150
Mosca (1939).
151
Pareto (1966).
152
Gallina (2008: 25–6).
153
Higley and Lengyel (2000b: 2–7).
154
Even for a narrow definition of the elite as employed in this book—referring only to elected
representatives in legislative bodies—the elite are still the ones responsible for elite change by
presenting the electorate with the choice of electors; the recruitment processes and the permeability
of these elites affect the composition of the legislatures, notwithstanding voters’choices in
elections.
155
Figure 2.4 is taken from Higley and Lengyel (2000b).
56 2 Towards a Theory of De-Europeanization, an Elite-Based Approach
positions in the political hierarchy (deep circulation). Regarding the second dimen-
sion, the mode in which elite change occurs, the model distinguishes between sudden
and coerced elite change (as in violent overthrows, coups or revolutions) and a
gradual and peaceful incremental replacement of the elite.
156
Arguably, radical and coercive elite change is an exception rather than the norm.
Replacement circulation involves the deposition of the old elite by violent revolution
and the imposition of a completely new set of elites; this most likely leads to the
establishment of an ideocratic regime and to the silencing of all opposing forces as a
tactical repression. In terms of unity or disunity of the ruling class, this type of elite
circulation is associated with the emergence of a totalitarian or post-totalitarian
regime, led by a new, strongly unified elite with a single belief system, homogeneous
values among its members and with networks running through highly centralized
structures.
157
At the opposite pole with respect to elite integration is quasi-replace-
ment circulation, which, equally sudden and coerced, occurs within an already
divided ruling stratum and leads to the continuation of disunity and conflict. It is a
rapid and violent displacement of the governing group by an ascendant clique from
the uppermost political positions, which adds to the climate of distrust and suspicion
while amounting to “no basic change in the character of politics, which remain
poisonous and violent.”
158
Elite change, however, generally occurs in a slow, gradual manner, upon the
retirement of old elite members, upon their voluntary resignation or upon their
individual transfer. A classical elite circulation, gradual and peaceful in manner
and wide and deep in scope, promotes the crystallization and persistence of a
consensual elite drawn from different political and social roles, and that is thus not
bound by a single ideological commitment. This consensual elite engages freely in
Fig. 2.4 The circulation of political elite: patterns of change
156
Higley and Lengyel (2000b: 5).
157
Higley and Lengyel (2000b: 6).
158
Higley and Lengyel (2000b: 6).
2.2 An Elite-Based Approach 57
disagreements and at the same time agrees on clearly defined rules and procedures.
Such a process of elite renewal requires a high degree of permeability and openness
on behalf of the ruling group, and is widespread among fully consolidated democ-
racies. In sharp contrast, in non-consolidated democracies, reproduction circulation
of the elite is likely to endure, being gradual and peaceful in manner but horizontally
narrow and vertically shallow in scope. This pattern of elite change is associated by
Higley and Lengyel with a “musical chairs exchange of positions”,
159
in which
political leaders cling to power by whatever means necessary, thus contributing
greatly to the fragmentation of the elite group.
Tentative and partial elite pacts and armistices aimed at staving off open political warfare
may be fashioned, but no elite ethos of unity in diversity develops. Instead, conflicts remain
heated and a ‘party of power’is likely to emerge and throw its weight around. But whereas
strategies and tactics in a divided elite involve sharp polarizations and exclusions, with
opponents typically regarding each other as mortal enemies in unchecked struggles, those in
a fragmented elite involve more complex manoeuvres across multiple and cross-cutting
cleavages that skew the outcomes of, but do not prevent, democratic competitions.
160
In sum, Higley and Lengyel develop a meaningful and comprehensive typology
of political elites based on the extent of their integration or disintegration and their
circulation patterns, linking these aspects to different types of political regimes
(Fig. 2.5
161
). It is this model that will guide the empirical assessment of the
permeability and dynamics of Romania’s political elite; the less permeable the
Romanian ruling stratum, the more intense its fragmentation, and consequently,
the more shallow and unsustainable its reforms. In this case, the state is more likely
to resemble a non-consolidated democracy.
The permeability of political elites, the manner in which new members are
recruited and interact with one another are, however, not free from the influence of
the broader institutional context. In addition to the aforementioned elite circulation
Fig. 2.5 Relating circulation patterns to elite unity
159
Higley and Lengyel (2000b: 6).
160
Higley and Lengyel (2000b: 4).
161
Figure 2.5 is adapted from Higley and Lengyel (2000b).
58 2 Towards a Theory of De-Europeanization, an Elite-Based Approach
patterns, the interaction of institutions in a particular constitutional context is highly
relevant to the study of elite unity or disunity. Institutions themselves may encourage
elite integration by building on organizational interdependence and a coincidence of
pursued interests; leaders in institutions with overlapping interests will take com-
plementary actions, whatever their personal affinities or linkages. Similarly, institu-
tional contexts may inhibit elite integration through the pursuit of conflicting
interests, functional specialization and organizational loyalties, which might force
leaders to pursue different goals, adopt different perspectives or take divergent
actions.
162
Generally speaking, even the constitutional provisions that limit government
through the separation of powers in a system of democratic checks and balances
are thought to “set ambition against ambition in a manner expressly intended to
reduce elite integration.”
163
Even more so, in a European context of multi-level
governance, national parliaments could be regarded as primarily assuming the role of
scrutinizing agents and co-legislating bodies in their relation to their executive
counterparts engaged in decision-making in European fora. Indeed, the polycentric
structure of the EU requires national parliaments to be willing to engage more in
European matters and exercise a control function; from this point of view, plenary
debates may be seen as primarily a form of government scrutiny.
164
Viewed from a
rational-institutionalist perspective, the institutional context and the relationship
between national legislatures and their governments—acting both domestically
and at the European level—has a principal-agent nature in which the act of delega-
tion by national parliaments to their executives is at times obstructed by conflicts of
interests or by structural information asymmetries. The sectoralization of Council
decision-making at the European level may render more likely the possibility for
ministers to use the Council to pursue preferences divergent from those of their
legislatures and disregard parliament’s mandate or even the effects a proposal may
have on various societal groups or other policy fields.
165
At the same time, the
two-level game framework for interaction and decision-making within the EU
widens the information asymmetries between ministers at the European level and
domestic representatives.
166
Arguably, participation in the EU and the new role
assumed by executives within the European decisional framework influences the
behaviour of both governmental and parliamentary elites, which increases conflict
and friction between institutions.
National parliaments across the EU have at their disposal various control mech-
anisms—such as no-confidence votes or parliamentary questions—through which
they reduce the information advantage of their respective executives and oversee the
decisions taken in EU affairs. To this end, national parliaments gradually improved
162
Putnam (1976: 122–3).
163
Putnam (1976: 123).
164
Auel and Raunio (2012a).
165
Miklin (2012: 135).
166
Moravcsik (1994) and Putnam (1988) cited in Miklin (2012: 136).
2.2 An Elite-Based Approach 59
their rules of procedure and committee systems, demanding more regular reporting
from governments on their activities at the European level.
167
The executives at the
same time generally act domestically in their role as the primary agenda setters and
interact, within the format of parliamentary procedure, on the one hand with the
government majority—having an interest in supporting the incumbents—and on the
other hand with the parliamentary opposition, enjoying both an institutionally
prescribed right and a strong interest to scrutinize the executive’s actions.
168
All
things considered, it is plausible to argue that institutional factors may increase the
level of elite fragmentation, particularly in a European multi-level governance
structure.
The last factor affecting elite integration and coherence is the linkages among
elite members, their shared values and mutual confidence. Political institutions are
incentive-based structures, shaping the motivations of leaders, and therefore, their
policy choices.
169
Yet, institutions depend heavily on the meaning they are given.
The institutional framework can set limits and direct elite conduct, but it cannot
reliably guarantee democratic and responsible behaviour, especially when elites are
driven by self-interest, shaping political processes according to their own needs.
170
Elite commitment to due process to values and principles and to the rule of law is in
fact an equally important dimension of elite fragmentation, having a strong impact
on the stability of adopted norms and of the system itself. Stable pluralist democra-
cies are typically characterized by a high level of elite consensus with regard to codes
of conduct, displaying a high degree of predictability, commitment to a politics of
bargaining and compromise, and a strong willingness to abide by the rules of
democratic procedure.
171
Political consensus on democratic procedural matters does not, however, pre-
clude fundamental substantive disagreements. In line with the pluralist perspective
adopted in this analysis, elites are considered competitive rather than consensual,
and their behaviour is considered as rather adversarial in terms of their political and
ideological choices. Leaders take often divergent positions on public matters, their
preferences being generally closely tied to their party and ideological identification.
Both parliaments and governments are party-political institutions. Political parties
decide on the agenda, on the balance of power in the committees and the plenary and
on the rights of individual members or party groups.
172
From this point of view, the
degree of value consensus among members of different political parties forming the
elite is highly relevant for reforms and the legislative output. A sharply divided elite
167
Auel and Raunio (2012a: 19–20).
168
Wendler (2016: 41).
169
Geddes (1994: 13).
170
Gallina (2008: 67).
171
Putnam (1976: 116).
172
Auel and Raunio (2012a: 14).
60 2 Towards a Theory of De-Europeanization, an Elite-Based Approach
with a high number of veto players and a marked ideological incoherence will be
constrained in its ability to produce significant legislation.
173
The existence of a shared normative basis and a certain degree of value consensus
among the elites is closely connected to their sense of mutual trust and solidarity. As
Putnam has noted, “[t]he mark of a unified elite, therefore, is not the absence of
disagreement, but rather sufficient mutual trust, so that its members will, if neces-
sary, forego short-run personal or partisan advantage in order to ensure stable
rule.”
174
In contrast, an intense fragmentation of the political elite—resulting either
from narrow and shallow circulation patterns, from conflicting institutional or
organizational interests or from a lack of value consensus—makes instability of
reform more likely, enabling the pursuit of narrow particular interests and contrib-
uting to the failure of democracy even if democratic institutions are in place.
2.2.3 Overlapping Interests Linking Elites and Nonelites
Legislative bodies serve the purposes of a democracy in a particular manner: “They
are the only ones who combine a close attachment to the citizens of a polity with
explicit legal rights to participate in policy-making. They are the locus in which
the sovereignty of a people is institutionalized and the most prominent place where
the people formulate their preferences and ideas in a politically effective way.”
175
The members of the political elite have then, by definition, not only the ability to
influence policy-making significantly, regularly and directly, but they also play a key
role as representatives by reflecting in their political actions the needs and interests of
those they represent. Lawmakers will then largely mirror in their decisions the
preferences of their constituents, while at the same time ensuring that the implemen-
tation of the respective decisions matches the desires of the electorate as far as
possible. In this light, it is reasonable to argue that societal interests maintain and
secure the linkage between the political elite and the mass public.
The thesis that political representatives favour the interests of those they represent
is fairly widely shared in European studies, often taken for granted and seldom
carefully scrutinized. Yet it remains quite unclear whose interests the political elite
actually represents, what motivates political leaders, what their incentives are and
what links they establish with their electorates. Arguably, both parliaments and
governments are institutions whose members pursue party-political purposes while
supporting the circular relationship between representatives and the represented:
they offer citizens the chance to indirectly affect policy-making by selecting policy
proposals made by political parties that compete for parliamentary and governmental
173
Tsebelis (1999).
174
Putnam (1976: 122).
175
Neyer (2012b: 38).
2.2 An Elite-Based Approach 61
mandates.
176
Democratic representation relies heavily on political parties publicly
assuming different positions on various issues, opening up matters to debate and
thereby providing their voters with policy choices. Political parties serve as a linkage
mechanism in five respects: campaign linkage (they are in charge of the electoral
process and the recruitment of political personnel), participatory linkage (they
mobilize the electorate), ideological linkage (they provide voters with policy choices
and alternatives), representative linkage (they ensure congruence between voters’
policy preferences and the ideological composition of parliament and government),
and policy linkage (they translate their programmatic promises into policies while in
office).
177
Political parties are then, at least in theory, essential instruments for
representation, which serve as vehicles for the recruitment of political elites, but
also as a medium through which citizens can indirectly participate in the political
system.
It is true that nowadays, political competition is drifting more and more towards a
battle focussed on form rather than content, with re-election and policy influence
being by and large the main goals pursued by political representatives.
178
This
political opportunism most likely leads to a failure of political parties to meet societal
expectations, with political parties turning more and more into mere electoral
organizations, losing their socially integrative function.
179
Regardless of this trend,
the general claim remains valid that political parties pursue interests largely
overlapping with the preferences of their respective constituencies; they orient
their decision-making towards public interests and receive the approval of their
voters. Even when elected representatives are primarily concerned with electoral
or financial rewards, and with political power and career advancement, as long as
getting into and remaining part of the elite depends, at least to some extent, on the
support of the electorate, each member of the elite has strong incentives to pay regard
to the views of those voting. Electoral competition is expected to push competitors to
produce policies appropriate to the needs and desires of the voters.
The interests of the public are, at least in theory, the parameters that orient policy-
and law-making. Note, though, that these parameters are often wide, living elites
with significant leeway regarding their choices and actions. At the same time, more
often than not, the voters have little in-depth knowledge of the legislative perfor-
mance and the decisions taken by those representing them. Legislative activities of
the representatives are seldom taken into account by the represented in their electoral
choice, which gives elite members a high degree of flexibility in their policy-making.
Indeed, legislative entrepreneurship does not affect in any significant manner the
re-election of a representative.
180
This is not to claim that law-making is generally
detached from the interests of the voters, but rather to suggest that political elites
176
Auel and Benz (2005: 375).
177
Dalton et al. (2011).
178
Mair (2008b), Auel and Raunio (2012a: 13–4).
179
Przeworski (2006: 328–9).
180
Wawro (2000).
62 2 Towards a Theory of De-Europeanization, an Elite-Based Approach
have opportunities to pursue policies and reforms not necessarily in the best interest
of their constituencies, as they are generally unconstrained by the pressure of
elections. While in office, the members of the political elite can set legislative
priorities and make decisions based on considerations other than the interests of
their electorate; they can invest time and energy in legislation or legislative amend-
ments on matters they care about, disregarding the effects such acts might have on
their constituents.
181
In this context, an important consideration concerns what constitutes appropriate
elite behaviour across a public-private divide. Recent political practices tend to
obscure the boundary between public and private interests.
182
While law- and
policy-making are meant to serve the public good, being isolated from private
narrow interests, all our current law and policy-makers are private individuals with
their own preferences, ambitions and networks.
Politicians will be more successful if they can raise money from friends outside politics,
make friendships with other politicians, draw on knowledge gained outside politics to
evaluate the bills before them, and rely on their family members to facilitate their constit-
uency duties (if only to serve as gracious hosts and/or hostesses).
183
Political decision-making is thus not only grounded on representatives’evalua-
tions of how a certain outcome would affect their respective constituency; the
individual backgrounds, previous careers and personal experiences of elite members
inform political decisions and lead representatives to allocate more legislative time
and resources to certain issues on the agenda.
184
Scholarship demonstrated decades
ago that representatives belonging to a minority group—based on race, gender, age
or sexual orientation—are more likely to use their legislative involvement to pursue
the interests of that respective group;
185
at the same time, scholarly work sheds light
on how engagement in policy-making is influenced by the representatives’prior
occupations and backgrounds.
186
This is what Barry C. Burden persuasively calls
the personal roots of representation. He refers to instances in which the legislative
preferences of political representatives cannot be correlated to partisanship or to
constituent interests.
187
Given these patterns of behaviour, it can be argued that the
members of the political elite are primarily representatives of the groups they feel
affiliated with descriptively, occupationally or experientially, and only secondarily
of the people who voted for them.
188
181
McCollum Gooch (2004).
182
Allen and Birch (2012: 97–8).
183
Allen and Birch (2012: 98).
184
McCollum Gooch (2004), Burden (2007).
185
Hall (1996), Rosenthal (1998), McCollum Gooch (2004), Broockman (2013).
186
Fenno (1973), Bullock (1976), Krehbiel (1991), Deering and Smith (1997), McCollum Gooch
(2004), Burden (2007).
187
Burden (2007).
188
McCollum Gooch (2004: 8).
2.2 An Elite-Based Approach 63
Following this reasoning, the present argument is premised on the assumption
that political elites may pursue interests that at times do not coincide with the
preferences of their constituencies or of the society at large. If policy-making can
be open to the pursuit of personal interests detached from the constituency’s
preferences, it is reasonable to believe that it may just as well be detached from
the pursuit of any societal interest. Political action may be driven solely by the
narrow self-serving purposes of the elite, particularly in contexts plagued by high-
level corruption.
It may be useful at this point to incorporate into the analysis another element that
defines the difference between a low degree of elite representation and responsive-
ness in policy-making and no representation and no responsiveness at all: the notion
of self-interest. When members of the political elite are motivated in their legislative
decisions and policy formulations by societal interests—even though these might
differ from those of their respective constituencies—their representative role is still
fulfilled to some extent. The book at hand is concerned instead with those instances
when policy- and law-making lack genuine representation and have devolved into a
mere pursuit of individual interests and a self-serving instrumental use and abuse of
the democratic framework. In the following, the pursuit of personal interests will
therefore be described as inherently opposed to the pursuit of any societal interests.
The personal interests of the political elite are here understood solely as narrowly
defined individual incentives that are pursued regardless of the harm done to society
at large, to the reforms that promote Europeanization or to the democratic rules of
the game.
In an endeavour to identify the extent to which individual interests may impact on
policy-making, the present book does not dismiss the possibility that political elites
act on behalf of their constituencies or of society at large. The goals pursued by the
political elite may not diverge from the needs and desires of the electorate.
189
Yet, as
seldom as the case may be, whenever a state is ruled by self-interested actors aiming
at using policy-making to extract individual benefits that go far beyond holding
power or gaining electoral returns, its legislative output and its reforms are likely to
be heavily compromised. Especially in corrupt contexts, it can be expected that
political elites will fail to reconcile their individual interests with those of the
citizens. Frequently, members of these political elites subtly abuse the democratic
framework and the spirit of the law, while in fact they largely conform to the letter of
the law. Behind the appearance of democratic institutions, self-serving elites might
not genuinely adhere to the norms of solid democracy, political reliability and
representation, and may deviate from these norms in action. This type of behaviour
189
It is as well true that the electorate may not always be right about what is appropriate political
action and that a complete congruence between public preferences and political output may not
necessarily be desirable, the experience and specialized knowledge of the representatives justifying
to large extent the autonomy they enjoy in policy-formulation. However, the present argument is
solidly grounded on the assumption that elite’s primary commitment is towards bringing societal
interests to bear on policy-making, legislative authorities remaining at all time committed to societal
causes and concerns.
64 2 Towards a Theory of De-Europeanization, an Elite-Based Approach
approximates legal corruption, when political representatives act in the belief that
what is not specifically prohibited is acceptable.
190
They make legislative decisions
with a view only to their own interests while failing to take into account any societal
concerns. As Lengyel and Ilonszki rightly point out, such patterns of political
behaviour are a characteristic of “simulated democracies”,
191
in which elites merely
imitate the acceptance of democratic norms and the rule of law. While being severely
unrepresentative, in breach of the spirit and at times even of the letter of the law, the
behaviour of political elites in simulated democracies does not, however, destroy the
democratic framework; the democratic institutions in place continue to operate, with
the actions of the political elite making their work relatively ineffective and precar-
ious. Therefore, a fine-grained assessment of the relationship between legislative
practice and the boundaries between public and private interests is thus necessary in
order to account for instances of reform reversal in which no major institutional
changes were involved. Paying greater attention to the behavioural patterns of the
political elite and the goals pursued by political representatives while legislating
could help make analyses of Europeanization more accurate and explain
de-Europeanization processes.
2.2.4 Civil Society Bridging the Elite-Nonelite Gap
The present approach singles out the legislative bodies at the top of the representa-
tion chain as those actors capable of influencing political and legislative outcomes
directly and whose actions and interests have a decisive impact on reforms in general
and on Europeanization in particular. The political elite, so defined, fulfils a pivotal
role in the process of Europeanization, being ultimately responsible for transforming
both societal preferences and EU requirements into domestic law.
The cornerstone of the entire argument is that while legislative bodies are
representatives of and responsible to the public that elects them, political practice
shows that elite actions do not always meet nonelite desires. Legislative elites at
times fail to refer back to the interests of their constituents while proposing and
adopting reforms. Political elites may well be representatives only in a formal sense,
and in fact be detached from the preferences of those they represent, failing to be
faithful in their actions to the voters who elected them. Elite selection by means of
elections does not all by itself guarantee responsible and responsive political lead-
ership that pursues societal interests. Active participation in the process of ruling and
being ruled is also a key responsibility of the nonelite, which needs to be vocal in
expressing its preferences, needs to be aware of how these preferences translate into
policies and needs to understand the significance of its political choices.
190
Allen and Birch (2012: 99).
191
Lengyel and Ilonszki (2010).
2.2 An Elite-Based Approach 65
By and large, and without overgeneralizing, it is safe to say that in Romania, the
mass public’s levels of political engagement, attentiveness and preparedness to
respond to policy change were for a long time rather disappointing. The detachment
and disenchantment of the general public with political action may be explained by a
deficient downward flow of information from the political elites to their voters and
upwards from the electorate to their representatives; the represented know too little
about the decisions taken by their representatives in domestic or European fora,
while leaders remain unaware of the preferences of their electorate. What is even
more likely is that the disenchantment of the electorate with Romania’s political elite
has been caused by endemic high-level corruption and the lack of responsiveness of
the latter towards societal concerns; citizens may be inclined to engage politically
only as long as their engagement produces changes, yet when the prospect of success
is perceived as dire, they are very likely to abstain from political participation. In
either case, as the empirical analysis will subsequently show, things change as civil
society gains strength in filling this uncomfortable gap between the representatives
and their represented. In some fields much more than in others, civil society
gradually grows in its ability to fill the information gap and efficiently mobilize
the nonelite in order to protect its interests through active participation and political
and civic engagement.
As mentioned above, the understanding of democracy proposed here diverges
from Schumpeter’s elitist model,
192
in which political competition only allows the
electorate to make a choice among representatives, but not among policies. The
present approach departs from this view that the involvement of the electorate in a
democratic government is limited to accepting or withholding its acceptance of
political elites. Instead, it postulates that, in addition to producing political repre-
sentatives, the active engagement of the general public is also necessary between
elections in order for policies to be framed in accordance with a broad societal
interest. Citizens need be politically informed and remain in touch with their political
and legal reality, their participation being a means to influence the agenda and reach
specific policy goals, even in contexts where high-level corruption is endemic.
Elections do give the general public the opportunity to express its preferences
directly and to elect leaders who represent its interests. However, electing political
representatives is not a sufficient mechanism in order to ensure responsive and
responsible elite behaviour and maximize societal welfare.
193
A retrospectively
voting electorate may indeed hold elite members accountable, but only as long as
it can discern whether and to what extent elites represent its interests, and can
sanction or reward them with re-election accordingly. Yet, as voters often have
insufficient information to evaluate incumbent governments, elections fall short of
adequately inducing representation.
194
Similarly, prospective voting—in which
electors evaluate candidates’programs and promises for the future—leaves a great
192
Schumpeter (2003 (1943)).
193
Manin et al. (1999: 50).
194
Manin et al. (1999: 30).
66 2 Towards a Theory of De-Europeanization, an Elite-Based Approach
number of specific societal or group interests unrepresented; numerous issues remain
unaddressed and latent until they are brought into the spotlight and included in a
candidate’s political offering. There is, however, an alternative to the ballot box, or
as noted above, a complementary to it: an active partaking in political life through
civic engagement provides the possibility to pursue common interests, and to
influence and control policy-making at all times. Civil society—broadly understood
here as the space between individuals and political institutions where groups orga-
nize formally or informally to act in the public sphere—makes possible the aggre-
gation and communication of specific group interests which may potentially produce
policy change during the much longer periods between electoral contests; it also
fulfils a very important control function, exposing and denouncing representatives’
misuse of office without depending on a fixed electoral calendar.
195
Moreover,
unlike elections in which all actors and actions are evaluated at once, the exercise
of control through civil society and civic engagement is sectorial and selective, and
therefore more efficient, as it takes into view specific goals and focuses on particular
policies or particular interests and wants; “citizens do not need to use one instrument
to achieve many purposes simultaneously”.
196
The concept of civil society is used here to refer to a form of political participation
based on self-constitution and self-mobilization, and focuses primarily on the pursuit
of common societal interests as opposed to private, narrowly-defined ones, such as
economic interests. The nuances in the meaning given here to civil society can be
easily grasped with reference to what civil society is not: it is here distinguished from
both a political society of parties, political groups and political elites, and from an
economic society of firms, cooperatives or partnerships, corporations, privately
owned media or other for-profit organizations.
197
In very broad terms, civil and
political society differ from an economic society in that they constitute the domain of
common societal interests as opposed to a domain governed by the pursuit of profit,
which characterizes the latter. In this respect, the concept of civil society as used in
the following distinguishes clearly between civil and economic society by
suggesting that the actions of the former are not—at least not directly—oriented
towards the satisfaction of material self-interest.
198
Equally relevant, it distinguishes
also between civil and political society, isolating civic activism from a type of
mobilization aimed strictly for political ends. This careful consideration of the nature
and goals of the various organization and movements considered here as civil society
is inspired by the warning example of Hungary, where the emergence of state-
supported and state-directed forms of civic engagement amounted to the creation
of a “fake civil society”.
199
In assessing here the strength of civil society, the letter
will be regarded as a locus for social interaction between the economy and the state,
195
Peruzzotti and Smulovitz (2006b).
196
Peruzzotti and Smulovitz (2006b: 11).
197
Cohen and Arato (1994: ix).
198
Peruzzotti and Smulovitz (2006b).
199
Ágh (2015: 19), Bogaards (2018: 1491), Greskovits (2020).
2.2 An Elite-Based Approach 67
with a logic of action distinct from both. It is constructed through self-constitution
and self-mobilization, and it includes the sphere of association, public interest
organizations, social movements and other organized forms of public action and
communication. This book will intentionally place emphasis on civil society’s
essential function to serve public well-being.
200
More specifically, the focus is
placed on organizations, associations, and movements whose primary aim is the
construction of social bonds in order to communicate and protect public interest,
201
unsubordinated to any direct economic or political ambitions.
Civil society, as understood here, reflects societal concerns, distils and aggregates
public preferences, thus forming a locus for communicating grievances and devel-
oping proposals for change. It not only plays a key role in the construction of public
interest, but it is, at the same time, involved in protecting it. It holds public officials
accountable, acting as a body of oversight and political control and exposing and
redressing eventual elite abuses of public power.
202
The understanding of civil
society proposed here thus combines these two views which are, in fact, two faces
of the same coin: the neo-Tocquevillian idea of social capital, which presumes that
civil society works by creating an associative texture of society,
203
and the idea of
social accountability,
204
which is based on the model of oversight and refers to the
different mechanisms employed for holding political elites accountable. In this light,
the practices of civil society are on the one hand used as an indicator of what societal
interest are, while on the other hand, they hint at the extent to which political and
legislative decision-making responds to those interests and reacts to changes in
societal preferences.
Civil society is thus pivotal with respect to its capacity to foster citizens’
engagement in public and political life and to enable the articulation of societal
needs. It fulfils an important mediation function, reducing the information gap and
the tension between representatives and the represented; it not only informs the
represented and prepares them for retrospective judgement during elections, but it
also monitors the state of mind of the electorate for the representatives, which in fact
allows voters to gain influence over policy-making prior to elections.
205
Civil society
is not only an important facilitator of a broad policy dialogue, but it also serves as an
important linkage between nonelites and the political elite by creating the space for
citizens to organize and take action in order to protect and promote their interests.
200
These conceptual contours of civil society are inspired by the four different definitions proposed
by Kohler-Koch and Quittkat (2011).
201
It is relevant to point out again that the pursuit of public interest is here regarded not as the
realization of a single common good, but rather as a pursuit of interests separate from narrow
private ones.
202
Peruzzotti and Smulovitz (2006a), Grimes (2013).
203
Putnam (1993), Mungiu-Pippidi (2005).
204
Peruzzotti and Smulovitz (2006a).
205
Arato (2006: 317).
68 2 Towards a Theory of De-Europeanization, an Elite-Based Approach
A strong and dense civil society is the most important interface between repre-
sentatives and the represented and completes the triad comprising citizens (with their
raw interests), civil society (that aggregates and communicates those interests) and
the political elite (through which public interests are reflected in policy choices).
Civil society constitutes an alternative forum for rights to be advocated and protected
and for interests to be voiced, which completes and complements the accountability
of political representation.
206
Its actions thus have significant impact on reforms in
general and on Europeanization in particular.
In the context of Europeanization, civil society plays a critical role in identifying
and voicing societal concerns and expectations expressed in relation to EU integra-
tion or EU membership. It acts as a conduit between citizens and decision-makers at
both the national and the European level, assessing on the one hand whether
European demands receive appropriate policy responses at the domestic level, and
on the other hand, whether EU-driven reforms match societal needs and wants. The
EU offers a broader context for civil society actors to voice and articulate social and
political concerns. As early as 2007, Della Porta detected a trend towards the
externalization of protests at the EU level, in which domestic non-governmental
actors who feel weak at home use the supranational level in order to produce change
in national politics.
207
However, despite empirical evidence pointing towards an
emerging transnational civil society within the EU’s borders, there is still a clear
inclination towards using domestic sites in order to voice concerns, even when those
concerns regard the EU’s policy output.
208
This domesticated
209
reaction to
Europeanization does not necessarily imply diminished pressure or weaker impact,
but rather reflects a sense of inertia across civil society to search for protection or
relief at a national rather than supranational level.
210
The importance of civil society assumes a different emphasis in the context of
Eastern enlargement, the EU’s accession or post-accession conditionality and the
demand for a transposition of laws and norms. In the context of a challenging
accession process in which states face great difficulties in meeting the conditions
for EU membership, often lacking funding, expertise or administrative capacity,
involvement of civil society and non-state actors in public policy-making was
expected to be stronger, and such cooperation with civil society was thought to be
capable of significantly strengthening the capacity of state actors to cope with
EU-led reforms.
211
However, research finds only limited evidence of sustained
cooperation between political elites and civil society in Central and Eastern
Europe,
212
despite the high incentives of the former to seek the expertise and support
206
Arato (2006: 317).
207
Della Porta (2007: 196).
208
Kutay (2015: 810).
209
Imig and Tarrow (2001).
210
Ladrech (2010: 146–64).
211
Börzel and Buzogány (2010a), Börzel and Fagan (2017).
212
Börzel and Buzogány (2010a), Carmin (2010).
2.2 An Elite-Based Approach 69
of the latter; the non-governmental sector assumes an opposing rather than a
cooperative role.
213
The second case study below will reveal instances of successful
cooperation which led to a higher degree of stability and irreversibility of reforms.
Romania’s nature conservation reform, associated with an improved capacity of civil
society to participate in policy formulation and implementation, offers an example
for sustainable Europeanization.
The engagement of civil society—active at the domestic level as an alternative
form of political control—is all the more necessary as a crucial component in the
broader European effort to curb corruption and enhance the quality of government in
the Union’s member and accession states. Still, the EU’s accession and post-
accession conditionality for Central Eastern and South-Eastern Europe makes scarce
reference to civil society as an essential factor in the process of judicial reform and
the fight against corruption. While stating clearly its commitment to integrity and the
rule of law, the EU seemed to rely solely on the response of formal political
institutions in curbing corruption at the domestic level. The practice, and until
very recently, also the literature of enlargement-led Europeanization, disregarded
domestic civil society as an important centre for action. Yet allegedly corrupt
political elites are less likely to commit to pursuing sound anti-corruption reforms
in the absence of societal pressure, and EU conditionality is not enough to ensure
such a commitment. Therefore, in line with the most recent approaches to democratic
consolidation in Central and Eastern Europe,
214
the present book will draw attention
in its first case study to the yet-unfulfilled potential of non-state actors to restrict the
abuse of public office and the reversal of anti-corruption reforms.
Civil society certainly cannot act as a substitute for formal checks and balances
and cannot be regarded as a stand-alone trigger for meaningful Europeanization
reforms and good governance. It cannot be a guarantee for sustainable reform, as
policy-making at the European and domestic levels still depends, in fact, on political
will.
215
And yet, it is reasonable to presume that in order for European policy-
making to reflect societal needs and concerns, and thus for domestic reforms to be
genuine and just, the self-organization of citizens in pursuit of common interests
remains a very important condition.
216
2.3 Theorizing De-Europeanization
As discussed above, studies on Europeanization and the EU’s impact on member and
accession states are inspired by a disproportionate optimism with regard to the
success and irreversibility of EU-driven reforms. For more than two decades, a
213
Parau (2008), Börzel and Buzogány (2010a), Dimitrova and Buzogány (2014).
214
Dimitrova and Buzogány (2014), Mungiu-Pippidi (2015).
215
Beichelt et al. (2014).
216
Arato (2006: 322).
70 2 Towards a Theory of De-Europeanization, an Elite-Based Approach
consistent body of literature has pointed out the importance of adaptational pressure
from above which, if combined with supporting facilitating factors at the domestic
level, can produce significant and lasting change towards Europeanization. This
view held true particularly in Central Eastern and South-Eastern Europe, where
states’eagerness to acquire full EU membership was thought to induce compliance
and to push domestic actors into adjusting to their European commitments. Most
Europeanization East scholars view reforms adopted by acceding states as a direct
consequence of the EU’s policy of conditionality, while any post-accession slow-
down or halt of reforms is explained by conditionality’s diminished effectiveness.
While cautiously anticipating that once membership is granted, the EU’s capacity to
trigger domestic reforms would diminish and Europeanization would therefore stop
or advance at a much slower pace, most studies are in fact hesitant to bring to the
forefront the reversal of already produced change. Like the studies discussing the
Europeanization of old member states, Europeanization East approaches design their
models to accommodate the idea of sticky reforms and account for the reasons why
states are unable and unwilling to pay for dismantling already adopted domestic
changes.
217
They assume too easily that reform is incremental. Such a view under-
estimates the role of reform reversal, as Europeanization is seen rather in terms of a
linear reform trajectory pursued by states, most likely at a faster pace before their
accession and at a slower pace after joining the EU. The present approach, by
contrast, rejects the thesis of the persistence of reforms. It acknowledges the effec-
tiveness of EU conditionality in setting in motion domestic change in Romania, yet it
questions its effectiveness in bringing about stable reform. It claims that
Europeanization can be reversed, and aims to uncover the causes of such a reversal.
In response to this research desideratum, this chapter proposes a theoretical model
that accommodates the idea of reform instability and the potential for setback by
drawing attention to the flexibility of law and to elites’sovereign capacity to reshape
their legislative responses to EU demands. The emphasis is thus self-consciously
placed on those members of the ruling stratum who adopt legislation at the domestic
level, who are viewed as key players in the process of Europeanization and are able
to advance or frustrate change.
This model draws a fine line not only between instances of compliance and
non-compliance, but also between reform steps that are inconsistent and those that
are intentionally inconsistent with European requirements. In this manner, it high-
lights the direct and contradictory impact that self-serving legislators have on the
legislative output and on Europeanization itself. Such a position is at odds with most
studies of Europeanization, where scholars regard the preferences of the political
actors as given: domestic elites pursuing Europeanizing reforms are treated as
European-minded decision-makers seizing opportunities derived from their state’s
convergence with the EU. This almost unanimously accepted perspective is here
considered to be legitimate and fruitful, but not necessarily universally valid. When
seeking to explain why a reform and its reversal are orchestrated by the very same
217
Sedelmeier (2012).
2.3 Theorizing De-Europeanization 71
domestic political actors, it becomes relevant to explore the motivations behind
reform adoption or reform reversal, and the interests pursued by reformers; then, it
also matters whether political elites are European-minded or not, and if their political
and legislative choices are based on ideology, party loyalty, strategies to satisfy
voters, or simply on self-interest.
Taking a closer look at Romania’s reform record after January 2007 gives rise to
the question: What could explain the state’s post-accession selective backtracking?
This chapter sets out to answer this research question by proposing an explanatory
model of de-Europeanization that finds inspiration in the field of elite studies, and
combines an assessment of a state’s EU-driven reforms with an inquiry into the
patterns of behaviour and interests pursued by political elites responsible for
adopting the respective reforms. This will provide the conceptual framework for
the empirical investigation which will then follow in Chaps. 3,4and 5.
2.3.1 The Proposed Theoretical Model
Börzel and Risse’s
218
seminal model, and in particular their logic of consequential-
ism (Fig. 2.6
219
), emerged as one of the major conceptual and theoretical tools for
understanding the Europeanization of Central and Eastern European states.
This rational choice explanation of the domestic impact of Europe has been
echoed—even though not always explicitly—by numerous scholars focusing on
CEE, who consistently argue in favour of a unidirectional causal relationship
between (1) the EU’s adaptational pressure (triggered from the top down through
the Union’s policy of conditionality), (2) the facilitators or inhibitors of reform at the
domestic level, and (3) the resulting changes to domestic policies and institutions.
While early studies of Europeanization East placed emphasis on the external incen-
tives for reforms,
220
more recent approaches have moved to stressing the relevance
of domestic factors in promoting or inhibiting change.
221
But neither external
incentives nor the identified domestic factors can adequately explain why a state
may reverse its formally adopted EU-driven reforms.
A weaker leverage position for the EU means that it can exert less adaptational
pressure on its member states, which may be reluctant to implement new reforms.
This, however, cannot lead them to dismantle the cost-intensive reforms already
adopted. Existing reforms (as opposed to the reforms not yet adopted) are thought to
218
Börzel and Risse (2000).
219
Figure 2.6 is adapted from Börzel and Risse (2000) and their proposed logic of
consequentialism.
220
Schimmelfennig and Sedelmeier (2005, 2020), Steunenberg and Dimitrova (2007), Pridham
(2007a, 2008b), Papadimitriou and Gateva (2009), Vachudova (2009), Tomini (2014).
221
Steunenberg and Toshkov (2009), Gateva (2010), Spendzharova and Vachudova (2012),
Vachudova (2014), Börzel and Fagan (2017).
72 2 Towards a Theory of De-Europeanization, an Elite-Based Approach
be locked in by the fact that their dismantlement would incur additional costs states
may be unwilling to pay. Similarly, the identified domestic factors most often
considered in the literature
222
to account for non-compliance (high costs of reform
coupled with weak capacities for implementation, or the mobilization of veto players
at the domestic level against the application and enforcement of reforms) cannot
explain legal backsliding. They may inhibit the transposition of new laws or prevent
the transposed legislation from being adequately enforced, yet they are not an
adequate explanation for a reversal of formally adopted laws. The fact that EU law
was already transposed successfully at the domestic level shows that the number of
veto points was low enough and the domestic institutions were supportive enough in
order to permit legislative adaptation to EU requirements.
Building on this literature, the following pages propose a theoretical model which
explains the formal reversal of Europeanizing reforms by paying close regard to the
manner in which the expected change also aligns with the goals pursued at the
domestic level by the political elite (Fig. 2.7
223
).
Fig. 2.6 The classical rational choice approach to Europeanization
222
Börzel and Buzogány (2010a), Dimitrova (2010), Sedelmeier (2012), Spendzharova and
Vachudova (2012), Börzel and Fagan (2017).
223
Figure 2.7 is adapted from Börzel and Risse (2000) and their proposed logic of
consequentialism.
2.3 Theorizing De-Europeanization 73
This model contends that the legislator’s preferences and the extent to which they
correspond with the interests of society at large may have a significant impact on the
course of reform. Persistence of domestic change (Europeanization) in this case can
be attributed to the stability of the preferences of the domestic actors, while policy
and legislative setbacks (de-Europeanization) are the result of a shift in the interests
pursued at the domestic level by the members of the political elite. Under the
assumption that the domestic political elite always acts in the interests of its
electorate, the claim above would not differ substantially from other rational choice
accounts of domestic policy change. Thus, it is here anticipated that representatives
do not always act in the interests of the represented. The logic behind this prediction
is straightforward: in contexts with high-level corruption, political elites are likely to
seek the highest concentration of gains for themselves, even though this may incur
significant social costs. The cost-benefit calculations of the political elite do not
always take account of the benefits or costs at a societal level. It is on these grounds
that the above rather unspecific independent variable (elite interests) will be further
specified and contextualized (elite personal interests) in order to explain
de-Europeanization. This model proposes that instability of reform be attributed to
the pursuit of personal rather than societal interests by the domestic political elite.
Yet, assessing the preferences driving the adoption of certain legislative measures
and the rejection of others poses methodological problems. In the law-making
process, although representatives may pursue narrow individual interests that differ
completely from those of their electorate, the legislative output may nevertheless
meet constituents’expectations. In other words, a pursuit of personal preferences by
the members of the domestic political elite may just as well lead to promoting
Europeanization as to inhibiting it. This obfuscates the causal relationship between
elite preferences on the one hand, and Europeanization or de-Europeanization on the
other. In order to escape this difficulty, the independent variable (the personal
Fig. 2.7 An interest-based approach to Europeanization
74 2 Towards a Theory of De-Europeanization, an Elite-Based Approach
interests of the political elite) will be limited to those elite preferences that clearly
diverge from any societal concerns. This conceptual choice and the specific under-
standing of personal interests is motivated by methodological considerations. Iso-
lating the causal impact of the elite’s self-interested behaviour requires a definition of
interests that clearly distinguishes between a pursuit of policy goals that correspond
with societal preferences, and policy-making that responds only to the individual
concerns of decision-makers. The nature of the interests pursued by political elites is
therefore considered against the background of societal preferences and needs. The
elite’s pursuit of personal interests as understood above is here explored for its
impact on Europeanization and its potential for triggering reform reversal. Advanc-
ing such an interest-based model by focusing on the elite’s pursuit of personal as
opposed to societal interests is uniquely able to provide an account of Romania’s
post-accession de-Europeanization, while it at the same time correlates this devel-
opment with the quality of political representation in the member state (Fig. 2.8
224
).
The model opens the black box of how EU requirements and standards are
incorporated into domestic legislation. The focus is on the relationship between
personal preferences that motivate specific policy choices (the independent vari-
able), legislative output and reform stability, or more specifically, reform reversal
(the dependent variable). The relevant actors in this relationship are (1) the political
representatives who enjoy exclusive power to adopt and amend legislation and
(2) the represented, who by means of engaging in civil society, ensure the respon-
siveness of the elite to their needs and interests. As regards the political representa-
tives, their patterns of legislative behaviour are influenced less by European
compliance mechanisms and more by internal elite structural characteristics and
Fig. 2.8 The proposed model of de-Europeanization
224
Figure 2.8 was developed by the author based on Börzel and Risse (2000) logic of
consequentialism.
2.3 Theorizing De-Europeanization 75
dynamics. Elite configurations and circulation patterns cause their integration or
disintegration as a group and their linkage or estrangement from those they repre-
sent. Unlike previous studies in the field of Europeanization, this account does not
take for granted elite permeability, the robustness of party competition, the role of
ideology and values in policy-making or the legislators’respect for the letter and the
spirit of the law. Political elites may be impermeable, ideologically non-committed,
lacking in mutual trust and value consensus, and lacking in respect for both policy
procedures and already made policy choices. Such symptoms are indicators of a high
level of elite fragmentation, which itself is associated with a tendency on behalf of
the political leaders to engage in legal corruption. As regards the represented, only a
strong civil society that is able to aggregate, voice and defend public interests can
prevent such a short-term self-interested behaviour of the domestic political elite.
The lower the engagement and the fewer the constraints posed by civil society in a
particular field, the stronger the pursuit of personal preferences by an intensely
fragmented elite.
Consequently, postulating that the pursuit of personal (as opposed to societal or
group) interests is more likely to occur in a fragmented political elite and is only
possible when there are no constraints put in place by civil society, the present model
proposes the assessment of the values of two antecedent conditions: the level of
fragmentation within the ruling stratum and the strength of civil society. These
antecedent conditions are considered to significantly enhance the impact of the
independent variable mentioned above (Fig. 2.9).
This model supports the idea of an instrumental self-serving use of Europe and of
European policies, which is particularly likely to occur in states not yet immune to
high-level corruption. By focusing on the motivations behind representatives’leg-
islative choices in different fields of reform and their respective convergence or
divergence from the public interest, this approach discloses more elusive forms of
abuse and draws attention to the fine variations across policy domains. It refrains
from painting a broad picture of an overall backslide, but instead uses a fine-grained
analysis in order to derive lessons from one field and apply them to others, thereby
drawing attention to a new range of factors to be taken into account when shaping
expectations with regard to the success or failure of Europeanization.
2.3.2 Research Design
Despite all hopes that states would at least preserve the level of Europeanization they
have reached before joining the EU, some areas of reform have proven more stable
than others. Conditionality occasionally leads to thorough and lasting policy change,
while at other times it fails to bring about genuine reform. As noted above, this book
will focus on de-Europeanization, i.e. on instances where the Union’s pressure for
reform did produce domestic change, yet this was not sustainable enough to have
had a lasting impact.
76 2 Towards a Theory of De-Europeanization, an Elite-Based Approach
Romania is in this regard an illustrative case, as it went through a fairly irregular
process of Europeanization despite being subject to constant high adaptational
pressure from the EU. Romania has been one of the two countries considered less
stable, less prosperous and less dynamic than the East-Central European candidates,
therefore having its entry into the EU postponed from 2004 to 2007. This postpone-
ment was intended to provide the state with additional time to adjust and implement
reforms. During its candidacy, Romania was thus exposed for a longer time to the
EU’s adaptational pressure and its streamlined conditionality. Moreover, EU condi-
tionality was considerably broadened in scope during the 2007 enlargement, with an
unprecedented post-accession mechanism of cooperation and verification being put
in place to compensate for the diminished effectiveness of the Union to trigger
compliance once the reward of full membership was delivered.
225
This exceptional
extension of the EU’s conditionality beyond the post-accession period means that
Romania is to this day subjected to a monitoring regime that aims to ensure
compliance through the threat of denial or withdrawal of benefits. In this light,
Romania is an obvious choice for a study on (de)Europeanization, as it is one of the
EU states with the highest overall conditionality burden, which in turn raises
expectations with regard to the stability of its reforms.
Indeed, regular monitoring and benchmarking—specifically targeting the field of
justice and anti-corruption—allow the Commission to continue to evaluate
Romania’s level of performance and provide guidance in this sensitive area of
reform, but also to single out the conditions under which further rewards will be
delivered. It is not surprising in this context that Romania was denied Schengen Area
membership, which was originally scheduled for March 2011, arguably less on
grounds of non-compliance with the acquis frontalier, than on account of a declining
Fig. 2.9 The proposed model of de-Europeanization (including the antecedent conditions)
225
Papadimitriou and Gateva (2009).
2.3 Theorizing De-Europeanization 77
trend in democratic governance and respect for the rule of law.
226
The EU’s policy of
conditionality, characterized by a high degree of flexibility, allows the Union to
constantly adjust the range and timing for delivering rewards. Reconciliation of its
conditions and requests with the goals and limitations of each individual state
certainly adds to the strength of EU post-accession conditionality. Yet, as mentioned
above, even personalized conditionality may not be enough to guarantee enduring
domestic change.
Even though it did not undertake any major constitutional changes that would
have significantly affected its already fragile democratic checks and balances,
concerns were raised that Romania embarked on a de-Democratizing path similar
to the one taken by Poland and Hungary affecting its overall level of
Europeanization. The repeated attempts by the political elite to dilute the already
adopted integrity legislation and to abuse the limits of their power in pursuit of
personal interests may have, but in the end did not lead to a complete state and
constitutional capture. The explanation given in the following pages as to what keeps
Romania from sliding towards authoritarianism is more nuanced than that provided
in the literature to date. The intense fragmentation of its political elite prevents them
from acting in concert and forming a “quasi-monopolistic power centre”
227
that
could capture democracy, although at the same time it does make self-serving
corrupt behaviour more likely. Also, the feeble but well-directed efforts of Roma-
nian civil society proved to some extent successful in sanctioning severe abuses and
in preventing any complete dismantlement of democratic checks and balances.
These very efforts of civil society, coupled with a high level of public trust in
European institutions, have in fact been the principal means through which not
only democracy, but also certain Europeanizing reforms were kept in place, by
giving traction to the EU compliance inducing mechanisms. However, the lack of
an abrupt reversal of democracy does not mean the lack of an abrupt reversal of
Europeanization.
Prior to the state’s accession to the EU in January 2007, legislative bodies at the
domestic level showed a high degree of support for the conditions laid down by the
Union, undertaking major changes in numerous reform areas. They have, however,
attempted to reverse some of these changes since. This study, designed as a within-
case comparison, attempts to provide a plausible explanation for these post-
accession developments, accounting for what makes certain areas of reform in
Romania more prone to de-Europeanization than others. It is the state’s post-
accession compliance record that makes Romania a highly interesting setting for
observing legislative behaviour and formal de-Europeanization. Romania offers a
particularly puzzling example: it tends to Europeanize in fields where the EU poses
limited adaptational pressure, while it de-Europeanizes in areas where it is subject to
intense monitoring and benchmarking; it shows an abuse of the democratic frame-
work in settings assumed to be rule-governed and transparent, yet without a
226
European Commission (2013).
227
Ágh (2015: 8).
78 2 Towards a Theory of De-Europeanization, an Elite-Based Approach
complete democracy capture; it shows instances of reversal, but not of a complete
reversal. This indicates that there is no linear correlation between external incentives
and constraints on the one hand and domestic legislative performance on the other. It
also indicates that there are other factors that keep reforms stable and prevent
Romania from entering a deep democratic backslide, such as the strength of civil
society.
Case Selection
The following empirical research will firstly engage in an analysis of Romania’s
compliance record in the area of public integrity and the fight against corruption.
This focus on integrity and anti-corruption reform is justified on the one hand by the
increased priority placed by the EU itself on fighting corruption in Romania, and on
the other by an expected self-interested behaviour of the largely corrupt political
elite, which was likely to be reluctant to genuinely engage in curbing corruption.
Corrupt practices have a strong potential impact on the implementation of the acquis
communautaire, on the proper functioning of the single market, and on the quality of
institutions and core democratic values that the Union seeks to represent. As
mentioned above, the EU made significant efforts to trigger substantial domestic
change in this particular area by introducing a post-accession system of benchmarks
and sanctions for Romania, in order to regularly assess the state’s performance in this
field. In essence, what makes this area of particular interest is precisely the fact that
although it is under the Commission’s permanent supervision and monitoring,
reform developments nevertheless remain uneven, unpredictable and inconsistent.
At the same time, in no other area of reform is the contrast between elite and societal
interests more pronounced, with numerous corrupt representatives being least
inclined to act in the interests of the represented. Therefore, studying anti-corruption
reforms in a political context already known to be affected by high-level corruption
renders easier the discussion and identification of the personal interests of the
political elite. While this will be discussed in Sect. 4.1 in greater detail, suffice it
to say here that in a state where grand corruption remains high and notorious
offenders are part of legislature, the adoption of sound anti-corruption reform is
fairly unlikely, at least as long as political elites may face trial, mandatory prison
sentences or seizure of their assets and as long as self-interested considerations take
priority in forming political judgements. This area of reform was thus selected for
observation on the basis of the very high value of the independent variable (the
pursuit of personal interests by the political elite), which might explain the changes
in the observed dependent variable (de-Europeanization).
The account of justice reform is complemented by a comparison with Romania’s
environmental reform, which helps to render the impact of the independent variable
more plausible. For Romania, environmental reform marked an equally high trans-
position challenge, given the quantity and quality of its existing laws and the high
pressure from the EU on accession states to adapt and adopt an ambitious green
2.3 Theorizing De-Europeanization 79
acquis.
228
Environmental policy is indeed one of the most developed policy fields in
the European Union, which places accession states and EU members under consid-
erable adaptational pressure.
229
Countries aspiring to EU membership, Romania
included, were required to adopt no less than 450 pieces of environmental legislation
before their accession.
230
This brings the two case studies on par in terms of the
policy-load demanded. Yet, despite the massive policy transfer that Romania was
expected to undergo during its accession period, its environmental reform was not
subject to any post-accession monitoring mechanism. The adaptational pressure
exerted by the European requirements in this area of reform is from this point of
view high, yet lower than the adaptational pressure faced by Romania in its anti-
corruption reform. On these grounds, and also due to the fact that this policy field
requires significant financial and administrative resources, Romania’s reform would
be expected to stagnate, or at least to advance at a slower rate in the post-accession
period. Indeed, if taking these aspects into account, the state would be likely to
respond to the EU’s adaptational pressure by Europeanizing at a comparatively
slower pace or even by halting environmental reform after becoming a full member
of the EU, when its compliance record is presumably inspected less often. However,
decision-making in this field leaves considerably less scope for a pursuit of personal
interests by the domestic political elite. Environmental policy is in general not only
relevant for the citizens of Romania or of Europe, but for the entire planet. In
adopting legislation for protecting the environment and natural resources, the Roma-
nian political elite is surely less influenced by selfish considerations of personal gain.
This second case study would hence display lower values on the dependent variable,
which might predict either a linear or a stagnant reform (depending on the degree of
EU adaptational pressure), but no reform reversal.
These two case studies will render plausible rather than test and prove the
correlation between the pursuit of personal interests by the political elite and a
state’s reversal of reforms. They offer a point of departure from which to better
understand the process of Europeanization and to explain why the assumption held
so widely in the literature—that a high level of conditionality brings about successful
domestic reform—holds true only for certain reforms. However, in examining the
success and stability of Romania’s Europeanization in two specific policy-making
areas, both characterized by high and very high adaptational pressure posed by the
Union, the focus here is more on the extent to which the self-serving behaviour of the
political elite may interfere with the course of reform regardless of the EU’s
adaptational pressure. A comparison is then drawn between the two cases, with the
high variation in the explanatory variable (the personal interests of the domestic
political elite) being expected to account for the divergent results in the degree of
Europeanization in the two policy domains (Fig. 2.10).
228
Börzel and Buzogány (2010a).
229
Börzel (2008), Börzel and Buzogány (2010a), and Braun (2014).
230
Börzel and Fagan (2017: 885).
80 2 Towards a Theory of De-Europeanization, an Elite-Based Approach
The analysis of the concrete developments and subsequent amendments of two
legislative proposals in these domains will illuminate the relations between the
elite’s pursuit of personal interests and an eventual post-accession reversal of reform.
Looking into the different provisions of each law and its development over more
than a decade will help to overcome the difficulties of the small sample size:
231
such
afine-grained approach generates detailed observations at the levels of law produc-
tion and amendment across the different law-making bodies and across the selected
period of time. The two legislative proposals from which the analysis starts are Law
144/2007, establishing the National Integrity Agency (ANI Law), and Ordinance
57/2007 regarding the legal regime used to protect environmentally significant
habitats and species (Nature Conservation Law), both adopted in 2007 and subse-
quently complemented by further acts on the same subject matter. These two
legislative proposals, which constitute the main units of analysis,
232
were selected
because (1) their adoption is highly relevant for both the European Union and the
member state, and for the respective reform in general, and (2) they are very different
regarding the extent to which they allow a pursuit of narrow personal interests by the
political elite. Furthermore, the choice of the two laws is particularly suitable for a
top-down analysis, given their legislative origin, emanating from the EU.
Law 144/2007 establishing the National Integrity Agency (ANI Law) responds
precisely to one of the benchmarks laid out by the European Commission for
measuring Romania’s progress in its justice and anti-corruption reforms after
January 2007. One of the four benchmarks set by the Commission as part of its
post-accession conditionality concerns the establishment of an Integrity Agency, the
Fig. 2.10 Case selection
231
King et al. (1994).
232
Yin (2009: 29–33).
2.3 Theorizing De-Europeanization 81
purpose of which is to ensure the integrity of high public and elected officials. It has
“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”.
233
This benchmark is particularly relevant here, since it is
the only parameter against which the Commission measures Romania’s legislative
actions, rather than the state’s implementation and institutionalization of norms or its
efficiency and administrative capacity. It places Romania’s legislative performance
under a magnifying glass, and targets directly the conduct of the state’s political
elite. A smooth adoption of the ANI Law—granting a newly established Integrity
Agency a robust mandate to detect and sanction conflicts of interests and unaccount-
able income—would indeed prove the country’s commitment to pursuing the fight
against high-level corruption. It would significantly raise the stakes on grand cor-
ruption, and corrupt officials would face a much higher risk of being exposed.
At the opposite pole in terms of the potential pursuit of personal interests by the
domestic political elite is Ordinance 57/2007 (Nature Conservation Law) aimed at
the conservation of Romania’s wildlife. It derives from two EU directives: the 1992
Habitats Directive (92/43/EEC) and the 1979 Birds Directive (79/409/EEC). These
two directives are the cornerstone of the EU’s nature-conservation policy, being
highly important for the environmental agenda of the Union, ensuring “the long-term
protection, conservation and survival of Europe’s most valuable and threatened
species and habitats and the ecosystems they underpin.”
234
Compared to other
environmental sectors (such as waste management, air and water quality, or indus-
trial pollution), Romania was granted no derogations or transition periods in this
field. Concerned about the potential economic costs incurred by the implementation
of stringent environmental standards, domestic governments often made efforts to
obtain derogations prior to their state’s accession to the EU. Romania itself
succeeded in negotiating eleven environmental derogations,
235
but the Nature Con-
servation Law was not one of them, and Romania was expected to implement the
respective acquis by the time of accession. This placed high pre-accession pressure
on the member state to re-align its legislation so as to accurately reflect the environ-
mental requirements agreed upon at the EU level.
Romania’s nature conservation reform ran in parallel to the state’s anti-corruption
reform, with legislative amendments adopted by the same political elite, applying the
same procedural standards, but resulting in very different Europeanization out-
comes: an improved compliance. Both laws were amended through new legislation
over time, with numerous new measures introduced that significantly affected their
substance and core aims and their level of convergence with European norms or
standards. Seen in comparison, they reveal how the Romanian political elite can be at
times self-interested adopting legislative amendments to reverse uncomfortable
233
Commission of the European Communities (2006).
234
European Commission (2017c).
235
Braun (2014: 47).
82 2 Towards a Theory of De-Europeanization, an Elite-Based Approach
reforms, and other times responsive to societal concerns allowing Europeanization to
unfold.
Operationalization and Methodology
As discussed above, so far no model of Europeanization has provided a convincing
explanation of post-accession reform reversal. This can be addressed by demonstrat-
ing that the interests pursued by the domestic political elite, largely neglected in the
literature, can plausibly explain instances of de-Europeanization. Accordingly, the
proposition on which this argument is founded is that a setback of EU-driven
reforms is likely when political representatives striving for narrow individual gains
find such a U-turn beneficial.
The stability of legislation at the domestic level, it is argued here, depends on the
EU’s policy of conditionality, but more importantly on the interests pursued by the
elite in the process of law-making or law-amending; if political representatives
pursue narrow self-serving preferences, legislative reforms are likely to be reversed,
regardless of EU conditionality. Two antecedent conditions were singled out as
significant to the functioning of a self-serving political elite: the level of fragmen-
tation within the ruling stratum, and the strength of civil society. These two indica-
tors illustrate, on the one hand, the linkage among elite members, their integration or
disintegration as a group, which heavily impacts the conduct of its members; while
on the other hand, they illustrate the linkage between the elite and the nonelite and
the extent to which the represented can communicate and protect their interests and
maintain political control over representatives.
The research goal will be met by employing a backward-looking approach,
236
starting from the explanandum, in this case de-Europeanization, and subsequently
tracing back the factors that led to it, focusing in particular on the interests pursued
by the members of the political elite, but also on the level of elite fragmentation and
the strength of civil society. The point of departure is Romania’s puzzling
de-Europeanization in the field of anti-corruption; the research is designed not to
provide an empirical confirmation or refutation of a single-factor hypothesis, but
rather to seek a detailed explanation for this surprising post-accession development.
It seems highly plausible to use the pursuit of personal interests by the political elite
in the process of adopting ANI legislation as a causal factor that brings about the
reversal of Europeanization. The plausibility of this approach is further supported by
the selection of a second case study, Romania’s nature conservation legislation, that
is significantly less favourable to self-serving behaviour of the political elite. This
case also has a backward-looking orientation, starting from representatives’legisla-
tive choices in this new field of reform, coupling these choices with the elite’s pursuit
of personal or societal interests. In sum, using process tracing, an identified level of
(de)Europeanization will be correlated, on a case-by-case basis, with the extent to
236
Scharpf (1997: 25), Börzel and Buzogány (2010a).
2.3 Theorizing De-Europeanization 83
which the members of the elite pursue personal rather than societal interests, paying
close regard also to the antecedent conditions that enabled the elite to behave in such
a self-interested manner. In order to achieve construct validity
237
and predictive
reliability, the operational measures of the important variables will be detailed in the
following.
The Level of De-Europeanization
As detailed in Sect. 2.1.1, Europeanization is defined in strictly legislative terms
(as the transposition of European laws and requirements) and modelled as a revers-
ible process. De-Europeanization is then an ex post formal repeal of certain pro-
visions after they have been adopted and produced effects at the domestic level. The
standard of comparison for assessing reform reversal is in this case Europeanization
in so far as it has already been achieved.
As noted above, the empirical study captures Romania’s post-accession period,
during which the two selected legislative proposals (both first formulated in 2007
and running in parallel) were repeatedly amended and revised. Each step in the
formal process of law-making and law-changing is observed and assessed in relation
to all previous steps, but also in relation to the benchmarks and requirements set by
the European Union. The variance in the level of (de)Europeanization is thus
extracted on the one hand by tracing the developments of each of the two legislative
proposals and their linearity, and on the other hand, by the extent to which they
respond, on a constant and permanent basis, to the EU’s adaptational pressures.
The narrow conceptualization of the dependent variable proposed here allows for
it to be observed and measured directly, through document analysis. The
law-making process, being a sequence of proposals, amendments and voting stages
involving different institutions, is accessible to the public either in the form of live or
recorded media (video recordings of the debates in parliament or the committees) or
as published official documents. These will provide the basis of the empirical
assessment of de-Europeanization.
In order to account for Romania’s reform progress or reform reversal a number of
sources will be analysed in great detail: all the documents and media relating to the
initiating of legislative proceedings, formal statements of motifs, the positions issued
by parliamentary committees, the amendments adopted or rejected in plenary ses-
sions in the two chambers of parliament, any constitutionality checks, and any
changes proposed during the law’s promulgation. At the same time, this study will
pay close attention to the reports, letters of formal notice, reasoned opinions or any
other documents drawn up for infringement proceedings by the European Commis-
sion. These documents will clearly illustrate the expected European standards and
the domestic developments to be achieved, specifying which provisions of the laws
remain intact and which are added, modified or removed.
237
Yin (2009: 41–2).
84 2 Towards a Theory of De-Europeanization, an Elite-Based Approach
Since the formal process of law-making affects the content of legislation, this
analysis is equally concerned with not only the substantial but also the procedural
aspects of the law-making process. On the substantive side, it will scrutinize all the
provisions within the two pieces of legislation and all the amendments brought
thereto, keeping in view the level of coherence and stability in law-making, the
legislative intent and the convergence with or divergence from European require-
ments. On the procedural side, it will consider the legislative performance, the
efficacy and appropriateness in the law-making process and the extent to which
the legislative procedures serve the same aim as their form does, i.e. whether they are
in harmony with the spirit of the law. In short, de-Europeanization is reflected in the
adoption of formal legislative changes, but also in any procedural issues that may
unjustifiably delay or hinder the enforcement of the respective laws.
The Elite’s Pursuit of Personal Interests
As detailed above, the concept of personal interests was for the scope of the present
argument insulated from societal interests. A pursuit of personal interests by the
political elite approximates in this case legal corruption, a self-serving use and abuse
of the legislative framework for individual gain at the expense of the public interest.
This conceptualization in fact rules out those instances in which a pursuit of personal
interests by the political elite brings about legislative outcomes that are at the same
time responsive to public needs (as, for instance, vote-maximizing and office-
seeking goals). Only that behaviour that takes into account individual rather than
public concerns is here believed to significantly affect the process of
Europeanization.
However, this independent variable, the pursuit of personal interests by the
political elite, poses some difficulties for empirical research. Individual interests
orienting legislative decision-making cannot be directly observed. The present
analysis will therefore infer the preferences that orient political decisions from
(1) the chosen courses of action, (2) the justifications provided by the representatives
and (3) the extent to which the adopted measures are aligned with the needs and
wants of the represented. Let us take each of these points in turn.
1. The nature of the preferences pursued by the political elite will be determined
empirically first and foremost by relying on the representatives’choices among
alternative courses of action. The preferred legislative solution, reflected in the
voting record of each member of the elite, will be assessed in terms of its
implications and the benefits to be derived from it. To this end, each legislative
amendment proposed and voted upon in plenary sessions or in committees will be
analysed, with particular attention being given to what consequences they pro-
duce and for whom.
2. In contrast to most rational choice approaches, the present analytical framework
does not assume that political elites are inevitably self-interested actors. They
may pursue various goals, and be compelled to explain what motivates their
2.3 Theorizing De-Europeanization 85
legislative choices, to justify their decisions. These justifications serve as impor-
tant indicators of the interests pursued by political decision-makers, and are a way
of legitimizing one’s preferences by proving their compatibility with shared
societal goals.
238
Actors who in truth seek to maximize their own interests or those of their clients, and
who care not for the common good, nevertheless are forced to use the mode of
justification in political discourse.
239
3. The failure to adequately justify their choice of legislative action may point to the
elite’s disengagement from public interest, as well as to poor legislative repre-
sentation and responsiveness to societal concerns. On that account, the chosen
courses of action and the justifications provided for them by the members of the
elite will be evaluated in relation to societal preferences on the matter. Public
opinion polls, participation in political movements and demonstrations, or any
other collections of public sentiment will provide relevant evidence with respect
to the needs and wants of the represented, and the degree to which elites respond
through law-making to these needs and wants.
No in-depth interviews were conducted with members of the political elite, as
such interviews would fall short of accurately revealing the interests pursued by
elite members in their legislative action; interviews were believed to be—for this
study—rather unlikely to generate new insights into what motivates political
leaders and potentially lead to false conclusions. As a result, in order to account
for the pursuit of personal interests by the political elite, the present book relies
merely on clues gathered from legislative practice itself (choices for action,
justificatory practices and responsive law-making).
Specific attention is also paid to two antecedent conditions that are able to
foster or hinder the elite’s pursuit of personal interests: the fragmentation of the
elite, and the strength of civil society. A high value of these two antecedent
conditions is considered to significantly enhance the impact of the independent
variable described above.
The Fragmentation of the Political Elite
The extent to which political elites are integrated or disintegrated has important
implications for the quality of legislative output, and thus, for the quality of
representation. While a strongly integrated political elite may be hostile and intol-
erant towards opposing views and interests, thereby harming the functioning of a
democratic system, a highly disintegrated political elite may be equally detrimental
to democracy, allowing for a very limited flow of information among its members,
impeding the creation of mutual trust, and thus inhibiting reforms and leading to
238
Neyer (2012a: 90).
239
Neyer (2012a: 93).
86 2 Towards a Theory of De-Europeanization, an Elite-Based Approach
stagnation or even to reform reversal. The higher the level of elite fragmentation, the
more likely it is for the members of that elite to adopt a self-serving behaviour and
instrumentally use the democratic framework for private gain. Guided by the
scholarly literature on elites, this study will posit that an excessive fragmentation
within the ruling stratum occurs when the following conditions are reached: (1) a
narrow and shallow circulation of the elite and a lack of permeability, (2) an
institutional context marked by cross-institutional conflicts and (3) a lack of solidar-
ity and value consensus among elite members. Let us look at these conditions in
more detail.
1. Elite dynamics, their renewal patterns and the manner in which they seize and
preserve power significantly affect the level of unity and consensus among
political representatives. Whenever elite circulation is horizontally narrow and
vertically shallow in scope, political leaders tend to cling to power by any means
possible, perpetuating a climate of distrust and political tension. In order to
adequately grasp the patterns of elite renewal in Romania, they will be measured
over a period much longer than the time after the state’s accession to the EU. The
empirical analysis will focus on the highest levels of political leadership in
Romania, and inquire into how many of the prominent leaders of the 1990s are
still active in the highest political echelons. At the same time, the permeability of
the ruling stratum will also be measured with reference to the changes in the
personal composition of the elite and the degree to which subsequent election
results led to broader or narrower political renewal at the national level. While
numerous changes may occur in the positions held, the composition of the elite
may remain largely unmodified, with traditional elite members merely rotating
through positions of power. For this reason, the circulation of the elite will be
assessed both by examining the dynamics with regard to key leadership positions
and by reviewing the overall fluctuation rate, the rate of newcomers to the elite
group.
2. Regardless of its circulation patterns, intense fragmentation of the elite may be
explained by institutional divergence, conflicts of interests and a lack of syner-
getic efforts. Such a lack of overlapping interests and divergent organizational
loyalties are not at all new if explored against European multi-level governance.
Members of government may, and often do, use supranational decision-making to
pursue preferences that are sometimes at odds with those of their legislatures, this
compelling the national parliament to assume an oversight role and control its
government’s EU policies. Such a positioning, on both sides, may significantly
alter the relationship between elite members and increase the level of fragmenta-
tion within the ruling stratum. The impact of the institutional environment on elite
behaviour and cohesion will be addressed by an analysis of the legal and
constitutional roles of different state powers in Romania, particularly after
January 2007, when the state gained EU membership. The manner in which EU
accession altered the terrain and ways of policy-making will also be explored, as
will the level of convergence or divergence in governmental and parliamentary
preferences and the extent to which the two institutions act in a complementary,
2.3 Theorizing De-Europeanization 87
or rather competitive, manner. The text of the Constitution itself will serve here as
the basis for discussion. Data from secondary sources will be used to identify the
trends in the elite’s use of its constitutional powers. These data will be
supplemented by recent studies and reports or by official declarations sanctioning
an eventual lack of cooperation between the government and the Romanian
parliament.
3. The third factor determining the level of elite fragmentation is the achieved
degree of solidarity and value consensus. Representatives’commitment—or
lack of commitment—to the rule of law and due process has a strong impact on
their functioning as a group, on the stability of adopted norms and eventually, on
the democratic system itself. While assessing the level of solidarity and value
consensus, the present study will be less concerned with the ideological distance
between elite members, but rather with their respect for procedural matters,
political predictability and stability. It is not implied that achieving solidarity
and value consensus results in a lack of substantive disagreements, but rather that
it leads to a sustained willingness on behalf of the political leaders to abide by the
rules and act in a predictable and responsible manner, with preferences remaining
tied to their party and ideological identifications. A constant forming and break-
ing of coalitions, a grounding and dismantling of political parties, and a con-
stantly shifting party membership of individual representatives account for an
unpredictable and antagonistic elite behaviour, and are most probably not bal-
anced by any ideological commitments. An analysis of the alternation of Roma-
nian political parties in power, the lifespan of coalitions and the percentage of
representatives shifting their party membership will thus provide relevant evi-
dence on the level of solidarity and value consensus, and reveal a more or less
fragmented political elite.
It is important to note that no variation on a case-by-case basis is expected in
terms of elite fragmentation. Romania’s ruling stratum is likely to remain equally
fragmented throughout the entire period of analysis, regardless of the reforms
debated. Fragmentation requires fulfilment as an antecedent condition, without
which political elites would be more inclined to pursue group or societal interests,
but as a factor, it does not refer to substantial aspects of reform; therefore, it does
not co-vary in relation to the laws under consideration. On these grounds, the
fragmentation of Romania’s political elite will be discussed in a separate
chapter—Chap. 3—before proceeding with the analysis of the two selected
case studies.
The Strength of Civil Society
Relying on the assumption that elected representatives would tend to act differently
if they were constantly made aware of the preferences of their electorate, and would
refrain from self-serving decision-making if they were under close societal scrutiny,
the present study focuses on the strength of civil society as an essential condition
affecting the behaviour of the political elite and thus, the stability of reform. Civil
88 2 Towards a Theory of De-Europeanization, an Elite-Based Approach
society as understood here includes two aspects: one relates to its role as an interface
between representatives and the represented (distilling, aggregating and communi-
cating public interests); while the second relates to its role as a body of oversight and
political control (holding public officials to account, exposing and redressing abuses
of power and corruption). Under the notion of civil society are subsumed both the
idea of social capital and the idea of social accountability. Accordingly, the strength
of civil society will refer here to both the associative texture of society, its capacity to
communicate public grievances and develop proposals for change, and also to its
control function and its capacity to restrict the abuse of public offices by the
members of the elite. The indicators used to assess the strength of civil society
will relate to both these roles; thus, on the one hand it is measured in terms of the
number of organizations set up to formally articulate shared interests in the two
fields, the extent to which these organizations prioritize the discussed issues in their
work, the impact they have on policy-making and their level of collaboration with
the government or with legislative bodies; while on the other hand it is measured in
terms of their public reach and the number of participants they involve in social
movement activities, as well as their potential to influence legislative decision-
making through their public reactions to abusive elite behaviour. In order to map
civil society organizations and the environment in which they operate, and in order
to measure their strength, the empirical analysis will rely in the first instance on
global indexes such as USAID’sCivil Society Organizations Sustainability Index,
the CIVICUS Civil Society Index, Charities Aid Foundation’sWorld Giving Index,
the Hudson Institute’sPhilanthropic Freedom Index, and Freedom House’s annual
Freedom in the World and Nations in Transit Reports. This broad analysis will be
complemented with evidence gathered from published research that addresses
directly the development and practices of civil society in particular fields of activity.
Additionally, a detailed account of the activities in several major organizations and
movements in the two fields will provide a clear understanding of their potential to
aggregate public interests, and the challenges and limitations they face in success-
fully protecting these interests against legislative abuse.
2.4 Conclusion
This chapter proposed a model to explain de-Europeanization. Instead of trying to
identify factors that lead to successful reform, it focuses instead on reversal and
disruption; instead of trying to assess whether, and to which extent, joining the
European Union has an impact on policies at the domestic level, it points out the
factors that can cause legislative setbacks. The aim is to find a plausible explanation
for Romania’s selective backtracking and puzzling de-Europeanization in the area of
justice and anti-corruption.
The formal reversal of reforms is explained with reference to the elite’s pursuit of
personal interests. Having developed the theoretical model in its conceptual, meth-
odological and operational details, the challenge now is evident: how can the
2.4 Conclusion 89
legislative preferences of the political elite and the nature of these preferences be
unpacked? It seems as if this book sets out to measure the unmeasurable. Engaging
in an analysis of private interests of the domestic political elite gives rise to serious
methodological problems, as individual preferences are almost impossible to iden-
tify and measure. It is particularly difficult to assess whether the political elite is
really self-serving in its legislative decision-making when almost every policy or
legislative reform is framed in terms of public needs or public interests. However, the
author strongly believes that it is precisely this variable that merits close attention, as
it is most likely to provide an accurate account of Romania’s process of
de-Europeanization.
Only in a fragmented political elite would representatives be inclined to shape
legislative reforms in accordance with narrow personal—as opposed to group or
social—preferences. It is a high degree of elite fragmentation that conditions
de-Europeanization by making legal corruption more likely. On these grounds,
Chap. 3will examine the level of fragmentation within Romania’s ruling stratum
before we move on to engage in an extensive discussion of the two case studies. The
picture that emerges as a result seems at first glance to suggest that any opportunistic
political elite in a democratic system could change the course of legislative reform in
an effort to extract personal profit. However, this relationship holds firm only when
there are no constraints in place to prevent such an instrumental use of the demo-
cratic framework by political decision-makers. As the two case studies below will
make clear, the existence of a strong sectoral civil society with capacities to
communicate the needs and interests of the represented in a particular field, and
with the power to hold elites accountable, is an essential condition framing the
adoption of sound and stable reform.
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90 2 Towards a Theory of De-Europeanization, an Elite-Based Approach
Chapter 3
Fragmentation: A Trait of the Romanian
Political Elite
He who dreads hostility too much is unfit to rule.
(Lucius Annaeus Seneca)
On 21 June 2017, a censure motion passed in the Romanian parliament called on the
Prime Minister, Sorin Grindeanu, and his cabinet to resign.
1
The motion was
preceded by a highly critical evaluation of governmental performance and a report
issued by the Social Democratic Party accusing all members of government of
failure to uphold the duties linked to their positions as set forth by the party’s
electoral programme.
2
Consequently, after holding office for only 6 months, Sorin
Grindeanu and his entire cabinet were forced to resign when the parliament withdrew
its confidence from the government. This premature dismissal appeared to be less an
expression of discontent with the existing governmental team and its achievements
than a successful attempt to oust the Prime Minister; many of the members of the
former government were reinstated under a new prime minister, despite their
unfavourable evaluation. Votes of no confidence are frequently used in Romania.
Since 2007, no less than 20 censure motions were presented in parliament, the large
majority of which were defeated.
3
It is a matter of everyday Romanian politics for
the opposition parties to attempt to oust the government by means of censure
motions. Such attempts have so far had little success, since the current government
usually enjoys the support of the parliamentary majority. This removal from office of
Sorin Grindeanu, however, is an exception. What enabled this censure motion to be
successful was the unusual fact that this motion was not opposition-sponsored; in an
unprecedented manner, this no-confidence motion was tabled by the Social Demo-
cratic Party (PSD), which called on its own government to resign. Instead of
enjoying their legislative period, PSD allowed inner-party differences to erupt into
a general political crisis. There had been two further prime ministers after Sorin
1
Parliament of Romania (2017a).
2
Partidul Social Democrat (2017).
3
Only the censure motions initiated on 6 October 2009, 18 April 2012 and 21 June 2017 were
adopted, leading to a cabinet overthrow (Source: http://www.cdep.ro/pls/parlam/motiuni.home).
©The Author(s) 2022
L. Martin-Russu, Deforming the Reform, Contributions to Political Science,
https://doi.org/10.1007/978-3-031-11081-8_3
91
Grindeanu, before a new successful censure motion was passed within the same
legislative period against the PSD government. This new motion of no confidence,
from 10 October 2019, was no longer tabled by the Social Democratic Party against
its own government; it was introduced by the opposition, yet it couldn’t have
succeeded without the support of PSD representatives who still had the parliamen-
tary majority, but voted to dismiss Viorica Dăncilă, the prime minister they had
appointed 20 months before. To complete the absurd picture, at the moment of
writing one of the candidates proposed by PSD to be prime minister in the new
Parliamentary cycle 2020–2024 is none other than Sorin Grindeanu, who appears to
have regained the confidence of his party.
This snapshot of the Romanian national political landscape is illustrative of how
competition, power relationships, elite behaviour and elite interaction may affect
legislative stability. Political elites are in a unique position to influence the institu-
tional settings in which they operate, to set the climate for policy debate, to shape the
agenda and ultimately the legislative output. The advance of any reform hinges on
the state of a country’s political elite. Therefore, the structure and dynamics of the
ruling stratum, the patterns of interaction among its members and their capacity for
cooperation and consensus must be taken into account in order to determine a state’s
democratic performance and the strength of its reforms. The level of elite integration,
or disintegration, is a crucial factor that adversely affects the behaviour of the
political elite and thereby the stability of reforms.
As already stressed in Sect. 2.2, this study assumes a pluralist perspective,
according to which political differences are inevitable. The interactions between
the members of the political elite are essentially competitive in character: different
constellations of actors represent different and conflicting interests and, accordingly,
adopt distinct positions that affect legislative output in various ways and to various
degrees. A certain level of fragmentation, a plurality in terms of views, approaches
and pursued preferences is desirable for a healthy democratic debate. A moderately,
pluralistically fragmented elite is uniquely able to support democratic decision-
making; it shows mutual recognition of differences in ideas and political programs.
Tipping the balance in one direction or the other has however dire consequences for
a state’s democratic order: the complete absence of fragmentation amounts to a slide
towards coherent but authoritarian decision-making in which the strongly united
political elite is likely to turn hostile towards opposing viewpoints and interests;
poles apart, an over-fragmentation of the elite is grounded on internal conflicts,
inconsistencies, tensions and an unwillingness to cooperate.
4
Hence, what is here
believed to stimulate a pursuit of personal rather than societal or group interests, and
thus destabilize reforms, is an excessively high level of fragmentation. Over-
fragmentation is reflected in the absence of value consensus and interaction ties
among different political factions,
5
and reaches deeper than ideological differences
do. It occurs within particular ideologically homogeneous groups as much as it
4
Best and Higley (2010).
5
Higley and Moore (1981: 582).
92 3 Fragmentation: A Trait of the Romanian Political Elite
occurs between them. It points to a “serious split between different political elite
groups, characterized by mistrust and non-cooperation or worse, a ‘trench-
mentality’.”
6
Central and Eastern European states in particular have been found to have a
tendency toward intense fragmentation;
7
the relations between elite members in the
region having long been dominated by confrontation and individualism.
Political concessions in [CEE] are severely contested, and better made only if the victory of
one’s own party is secured and the political adversary defeated; otherwise the compromise-
inclined may be compromised by his own (party) allies. Elites that are ready to compromise
and cooperate discredit themselves because they are regarded as weak and incompetent in
enforcing their own stances.
8
However, recent developments in Central Eastern and South-Eastern Europe
point towards diverging trends in what regards the level of elite fragmentation:
while states like Hungary and Poland experienced a slide towards an increasingly
stable partisan landscape with a high degree of party-level consensus, in Romania
the lack of consensus among the elites increased gradually, both between and within
political parties. At one extreme, since 2010 Hungary saw a continuous enforcement
of intra-party ideological unity coupled with a domination of group over societal
preferences; this led to institutional changes that favoured the preferences of the
incumbents alone and were therefore prejudicial to the functioning of democracy.
This transformation was essentially a reorientation of the elites towards an illiberal
democracy and later towards an electoral authoritarianism.
9
At the other extreme,
Romania’s political elite grew increasingly fragmented. The apparent consensus
among the elites before January 2007 disguised a lack of mutual confidence and
consensus on all but the general statements supporting the state’s membership in the
EU. After accession, there has been a growing sense of distrust and a continuous
battle over spheres of influence among the members of the Romanian political elite.
They grew increasingly isolated from societal values and ideological preferences,
engaging in self-serving political competition within a democratic framework that is
preserved, but used for the pursuit of individual goals.
10
As the following pages will
show, the current appropriation of democracy for personal ends, even when they
diverge from the interests of the constituency or the party, is interlinked with the
intense elite fragmentation in Romania.
The present chapter expands on this argument that only a moderate level of
fragmentation can foster reform stability, while over-fragmentation in turn harms
the functioning of democracy, impedes legislative action and allows the pursuit of
personal gain to steer the course of reform. The difference between a pluralistically
6
Gallina (2008: 9).
7
Seleny (2007), Gallina (2008: 47–55), Ladrech (2009: 11), Ganev (2013: 34–6), Ionașcu (2013:
251), and Enyedi (2016: 211–2).
8
Gallina (2008: 53).
9
Ilonszki and Lengyel (2019: 190–1).
10
Soare (2014: 174).
3 Fragmentation: A Trait of the Romanian Political Elite 93
fragmented political elite and an excessively-fragmented one lies in the manner in
which the members of the elite remain bound by their electoral promises, respectful
towards due process and the democratic rules of the political game, and true to the
values and principles that have guided them in the past.
In order to provide a comprehensive overview of its tendencies towards over-
fragmentation, we will focus on three structural dimensions affecting the behaviour
of the political elite in Romania: (1) its composition, (2) the institutional context in
which the elite operates and (3) the existing value-based ties among its members.
Firstly, the following section will elaborate on the renewal patterns of the elite, its
permeability and continuity. It will reveal how a narrow and shallow circulation of
the elite has as a consequence a continuous rotation of key elite members from one
leadership position to another. At the same time, the coexistence of elite members
with long political careers alongside political newcomers intensifies the struggle
over positions of power and fuels a sentiment of mutual mistrust. Secondly, the
insights into the composition and recruitment patterns of Romania’s political elite
are complemented by an analysis of the elite’s institutional status and roles. A long
and still open debate over Romania’s political regime (whether the country has a
parliamentary or a presidential system of government) and the constant frictions
between the legislative and executive branch are here regarded as another source of
fragmentation, stemming this time from Romania’s institutional architecture. The
third line of argument discusses the relationship between political elites and political
parties, i.e., the expressed level of solidarity and value consensus among party
members. Romania’s maintenance of fragile coalitions and ideologically fluid polit-
ical parties leads to the same conclusion: the country has an excessively divided
political elite. This detailed study of the composition and dynamics of the elite,
drawing on a body of literature on elite structures, allows for a more nuanced
understanding of fragmentation and invites reflection on the intuitive assumption
that corrupt elites are united. The uniform behaviour of elites in their abusive
practices is in itself a sign of fragmentation, cooperation in this regard being driven
by short-term volatile interests.
The last part of this chapter discusses the level of fragmentation within the
Romanian political elite in relation to the state’s accession to the EU; it describes
the years preceding the accession, which were marked by a period of calm and
apparent consensus, and which contrast sharply with the domestic political land-
scape after January 2007. This analysis draws attention to the fact that the level of
elite fragmentation varies widely from legislative term to legislative term, and that an
inclination of the balance towards either extreme (under-fragmentation or over-
fragmentation) fits accurately to the deterioration of the democratic order. Observing
the patterns of elite interaction in the post-accession period gives a better image of
the environment in which Europeanizing reforms are adopted and amended. The
increasing level of elite fragmentation in Romania did not cause, but conditioned
de-Europeanization, just as the decreasing level of elite fragmentation in Hungary
did not cause, but conditioned the state’s slide towards electoral authoritarianism.
Romania’s example provides valuable insights into how changes in the level of elite
94 3 Fragmentation: A Trait of the Romanian Political Elite
fragmentation may upset the development of reforms and the democratic order in
other CEE states as well.
3.1 Recruitment Practices Maintaining an Impermeable
and Disunited Elite
The Romanian revolution of 1989 was a sudden and violent elite change which
created a power vacuum that both sympathisers of the former communist system as
well as oppositional forces intended to fill. Whether the one or the other managed to
form a new government, whether the revolution enabled the imposition of a
completely new set of elites, or whether it only allowed the second communist
echelon to maintain a near-exclusive hold on positions of power, is a question that
falls beyond the scope of this research.
11
The present analysis will confine itself to
exploring the regenerative pattern followed by the Romanian political elite after the
violent revolution of 1989: decades during which elite circulation continued to be
gradual and peaceful in manner, but—as the following pages will show—narrow
and shallow in scope.
Romania’s democratic transformation began with the establishment of the Coun-
cil of the National Salvation Front (FSN), a new structure of power which took over
government responsibility immediately after the regime change until the first dem-
ocratic elections were held in May 1990. This organization emerged on an ad hoc
basis and its 145 members included opportunistic communists as well as dissident
activists, critics of the regime, well-educated technocrats and liberal intellectuals,
engineers, workers, students and professors.
12
It was a broad alliance, with a wide
ideological spectrum, yet with a narrow and centralized leadership. While the
Council exercised important legislative functions, the actual power was vested in
the smaller Executive Bureau
13
at the top of the structure (see Fig. 3.1
14
). The
Executive Bureau was responsible for determining the composition of the Council,
it was authorized to act on behalf of the latter between full sessions, and more
importantly, it retained control over policy-making, since nine of its eleven members
headed the most important FSN Commissions.
15
11
For a comprehensive discussion on elite continuity in Central and Eastern Europe after the fall of
communist regimes see Kitschelt (1992), Gallina (2008), Pop-Eleches (1999, 2008) and Anghel
(2012). Without dismissing this claim, the present study consciously leaves unexplored—and thus
refrains from giving any opinion on—whether the Romanian revolution marked a substantial elite
change and a complete break from the authoritarian past.
12
Siani-Davies (2007: 192–3).
13
DECRET-LEGE nr. 2 din 27 decembrie 1989 (Decree No. 2 of December 27th 1989) [1989].
14
Source: Siani-Davies (2007: 192).
15
Siani-Davies (2007: 193–4).
3.1 Recruitment Practices Maintaining an Impermeable and Disunited Elite 95
This highly hierarchical structure of the National Salvation Front was to be
replicated in almost all the major political parties in post-communist Romania,
whose leaders continued to exercise significant influence over every aspect of
party and parliamentary decision-making. In fact, as will be detailed further below,
more than three decades after the democratic turn, Romanian political parties
continue to lack reforms with respect to their decision-making processes; they are
still characterized by remarkably centralized leadership selection and removal mech-
anisms and reduced members’involvement in party affairs. Arguably, the first years
after the revolution were decisive in establishing this trend: the absence of deep
social cleavages resulted in the emergence of political parties with no social roots but
with strong institutional anchors, likely to follow a top-down approach to party-
revitalization.
16
As a matter of course, Romania’s major political parties still display
an “uninterrupted oligarchic inertia”
17
which sustains a wide power disparity
between the various party strata, thereby weakening intra-party cohesion and orga-
nizational loyalty.
In its early days, the Council of the National Salvation Front took the idea of
consensus as its logical basis: it defined itself as an umbrella organization playing a
permanent role in Romanian politics as a representative for a wide range of interests
and a large section of society. It was not intended to be or to become a political party,
but to participate in the upcoming elections as an all-encompassing political orga-
nization that included various different political movements or factions. Its
expressed aim was to allow dissenting voices to exist, “but these were clearly
expected to subscribe to the basic tenets of the Front’s program and to operate
within a restricted limit.”
18
No later than January 1990, however, this political project of consensus was
abandoned. The Council became a mere temporary body, soon to be replaced by a
parliament legitimized through popular elections.
19
Accordingly, it voted on its
Fig. 3.1 The hierarchical structure of the National Salvation Front
16
Chiru and Gherghina (2012: 514).
17
Chiru and Gherghina (2012: 511).
18
Siani-Davies (2007: 210).
19
Siani-Davies (2007: 250).
96 3 Fragmentation: A Trait of the Romanian Political Elite
dissolution and announced that the National Salvation Front was coming forward as
a fully fledged political party. As a competitor during the elections in May 1990, the
FSN was challenged by various opposition groups and newly formed political
parties, most of which proved still too weak, without a significant membership
base and resources, to stand a chance. The National Salvation Front won easily. It
obtained an overwhelming majority in parliament—245 seats—while the National
Liberal Party (PNL) and the Democratic Alliance of Hungarians in Romania
(UDMR) came in second and third, both winning 29 seats respectively.
20
These
elections were one of the first steps towards democracy, and played a major role in
the state’s return to political pluralism and the emergence of a competitive political
environment in Romania. A retrospective analysis shows that these elections went
much beyond political pluralism in that they marked a complete departure from
consensus; they plotted the course for the democratic years to come, defined by
conflict and power struggle.
After its victory in the 1990 parliamentary elections, the FSN split into two
groups in 1992: the FDSN, which won the subsequent national elections and grew
to become Romania’s largest and most influential left-wing political party;
21
and the
FSN, which emerged as the more liberal faction after the split.
22
The FDSN changed
its name to PDSR and subsequently to PSD and reasserted its social-democratic
credentials; the FSN merged with another political group and renamed itself the
Democratic Party (PD), continuing to campaign on a centre-left platform despite its
centre-right bent.
23
In 1995, the PD formed an alliance with the small social-
democratic party PSDR, though this was only a temporary alliance; 4 years later,
the PSDR withdrew from it in order to merge with the PDSR
24
and secure its
political future as Romania’s Social Democratic Party (PSD), on the left side of
the political spectrum. Splinter groups from PSD broke away in 2010 (in order to
form the National Union for the Progress of Romania (UNPR) together with a break-
away group of the National Liberal Party), and again in 2017 (joining former
members of the Alliance of Liberals and Democrats (ALDE) to establish PRO
Romania).
On the centre-right stage, the PD fused in 2007 with a splinter group from the
National Liberal Party (PNL) to form the centre-right Democratic Liberal Party
(PDL). A splinter group from the PDL formed its own centre-right party, the
20
Source: Parliament of Romania, URL: http://www.cdep.ro/pls/parlam/structura2015.gp?leg¼1
990 (accessed 25 Jul 2017).
21
Pop-Eleches (2008: 468).
22
Pop-Eleches (1999: 118).
23
In fact the PD remained for more than a decade affiliated with the Socialist International, just until
2005 when it shifted its ideological orientation becoming a member of the European People’s Party
(Chiru & Gherghina, 2012: 516).
24
Despite the fact that the PDSR (the Romanian Party for Social Democracy) and the PSDR (the
Romanian Social Democratic Party) share the same designation and the same ideology, they were
registered as two separate political parties until they merged to form the Social Democratic Party
(PSD).
3.1 Recruitment Practices Maintaining an Impermeable and Disunited Elite 97
People’s Movement Party (PMP), in 2013, while the remaining members were
absorbed by the PNL in 2014. The above-mentioned National Union for the Progress
of Romania (UNPR) was itself absorbed into PMP in 2016.
The National Liberal Party (PNL) was itself torn by factionalism, witnessing
numerous splits and mergers throughout the post-communist period.
25
During the
early 1990s, two groups seceded from the party to form the young wing of the party
(PNL-AT) in 1990 and the Democratic Convention of the National Liberal Party
(PNL-CD) in 1992; the two factions merged later on and were subsequently
reabsorbed into the National Liberal Party. Later, in 2013, a splinter group from
the National Liberal Party founded the Liberal Reformist Party, which in 2015
merged with the Conservative Party, the PC (formerly the Romanian Humanist
Party, PUR) to become the Alliance of Liberals and Democrats (ALDE). In 2020
ALDE merged into PRO Romania, a political party that joined together members
from ALDE and PSD.
Such name changes, splits and fusions of major political parties (as displayed in
Fig. 3.2
26
) were certainly not rare occurrences; in fact, they were—and surprisingly
still are after decades of democratic development—a rather common phenomenon in
Romania, and reflect frequent intra-party tensions and contradictions and a general
lack of ideological and organizational identity.
Fig. 3.2 The emergence and development of political parties in post-communist Romania
25
Chiru and Gherghina (2012: 521).
26
Figure 3.2 was developed by the author using the official websites of the respective political
parties and Muller et al. (2012).
98 3 Fragmentation: A Trait of the Romanian Political Elite
Irrespective of this chronic fighting between factions inside political parties, the
Romanian political system was often rightfully associated in the literature with a
cartel-party system.
27
Indeed, it proves to be exceptionally stable, with largely the
same political parties represented in parliament in nearly all legislatures. Political
competition broadly resembles a closed game of incumbents, as very few of the
parties that were formed after 1990 were genuinely new.
28
In their overwhelming
majority, they are only formally speaking new parties: splinters emerged as succes-
sors of established organizations, with important political figures among their most
prominent members,
29
and often, they re-affiliate with established political groups
on the eve of elections. What may seem to be an increasingly diversified political
landscape, with a higher number of newly formed political parties is, in fact, a mere
change of denominations, while the basic structures, leadership styles and often the
leaders themselves remain unchanged. As a matter of fact, since 1996, the elections
brought almost no new parties into Romanian parliament (with the exception of the
PP-DD, which entered parliament in 2008 and was absorbed into UNPR in 2015;
and the USR, which won seats in 2016). At the same time, almost all established
political parties have succeeded in preserving their parliamentary positions (with the
exception of the PRM in 2008 and ALDE and PMP in 2020). Even when genuinely
new political movements have enjoyed a significant degree of popular support, they
rarely gained representation, and this was not least due to the strict requirements
guiding the establishment of a new political party.
30
The high legal thresholds
imposed until recently
31
played a crucial role in maintaining the status quo, enabling
incumbents to preserve their positions of power and preventing any
non-parliamentary parties from challenging them. The absence of consistent
bottom-up pressures from new political parties undeniably contributed to the cartel-
ization of the party system. This cartel party system distorts electoral competition
and narrows significantly the voters’choice, increasing even further the gap between
representatives and represented. However, it does not in itself create stability and
coherence among representatives. Instead, it creates a political environment in which
short-term strategizing is intended only to outwit political opponents and retain
power at all costs. In the absence of deep institutional or ideological ties, the
cartelization of the party system in Romania did not reduce fragmentation, quite
on the contrary, it allowed intra-party dissent to surface and settle as a norm of the
political game.
27
Katz and Mair (1995) and Sikk (2005: 397–8).
28
Sikk (2005).
29
Sikk (2005: 399).
30
Chiru and Gherghina (2012: 529).
31
Law 114/2015 on Political Parties, which came into force in May 2015 and which amended the
more exigent Law 14/2003, substantially relaxed the requirements for registering new political
parties, reducing the minimum number of founding members from 25,000 to 3. Nevertheless, other
legal, institutional and administrative constraints limit the access of new parties to the party system:
the lengthy registration procedures, the high number of signatures required in order to participate in
election, or the long reimbursement periods for campaign investments (Dumitru & Voicu, 2016).
3.1 Recruitment Practices Maintaining an Impermeable and Disunited Elite 99
During the last decades, the continual presence of the same political parties that
dominate Romanian politics was matched by an equally strong continuity at the level
of leadership coupled with a high level of dissent among these leaders. As stated
above, most of the newly emerging parties in Romania originated from long-
established and already influential political circles. Largely, they were splinter
groups formed by a number of high-profile political figures or party leaders who
remained at the helm of these new organizations for several years. More often than
not, these parties did not survive long, and were eventually re-absorbed into one of
the major political parties. This reveals the tactical nature of political factionalism in
Romania; the realignments, mergers or breakups of political parties by prominent
politicians have been strategic rather than substantial in intent.
The recurrent fusing and splitting of Romania’s major political parties since 1990
was fuelled by personal power ambitions and dissentions at the highest levels of
these organizations, which did not result in an accelerated change of elite due to
bottom-up pressures, but rather helped consolidate power positions for those that
were already key political actors. For instance, in 1992, when the FSN broke up into
two competing factions, it was presided by Petre Roman, who remained the head of
the party long after the split and after the organization’s name changed to the
Democratic Party (PD). Petre Roman was re-elected three times as president of the
PD and was followed by Traian Băsescu (a prominent FSN member and minister in
Petre Roman’s cabinet), who took over the presidency in 2001. Traian Băsescu
remained influential in the Democratic Party (which was renamed the Democratic
Liberal Party, PDL, in 2007), despite the fact that his membership was suspended
during his terms as president of Romania. During this time, the PDL was headed by
one of Băsescu’s protégés, Emil Boc. Only later, in 2015, did Traian Băsescu grow
dissatisfied with the leadership of the PDL and distance himself from the party,
forming a new organization, the PMP, which he led until June 2018. In a similar
vein, the splinter group which broke away from the FSN in 1992 (the FDSN)—and
which became the largest social-democratic party in Romania (the PSD) after
subsequent name changes and mergers—over decades remained faithful to its initial
president, Ion Iliescu. Iliescu himself had to resign as leader of the party during his
terms as president of Romania, and placed his protégé Adrian Năstase, a former
Minister of Foreign Affairs, in the position of executive president and then president
of the party. After his second term as president of Romania, Ion Iliescu did not return
to the leadership of the party, but he has been the honorary president of the PSD
since 2006 retaining an influence over intra-party decision-making. Călin Popescu-
Tăriceanu provides an equally good example. He was one of the important figures in
the youth faction which separated from the PNL in 1990. Later, in 2004, after the
splinter group merged again with the Liberal Party, Călin Popescu-Tăriceanu
became the president of the PNL, maintaining this position until 2009. Subse-
quently, in 2014, he left the PNL in order to launch the Liberal Reformist Party, in
which he was elected president. He remained at the head of the organization even
after it merged with the Conservative Party in 2015 to form the Alliance of Liberals
and Democrats in Romania (ALDE). The most recent example is PRO Romania, a
100 3 Fragmentation: A Trait of the Romanian Political Elite
party founded and led by Victor Ponta, a former member of the Social Democratic
Party (PSD) and its president from 2010 to 2015.
The examples could be multiplied; but these should suffice to indicate the
persistence of leadership in a context of intense regrouping of parties and party
members. The remarkable continuity at the level of party leadership is not intuitively
obvious, yet it could be justified by the fact that due to their popularity, electoral
capital and status, these political figures are very likely to be re-elected, irrespective
of the party for which they compete. It is, then, less surprising that they preserve their
leading role when switching to or founding new parties.
32
Sometimes voters might not even be clearly aware that they are supporting a different entity
to the one they supported in the previous election given the relatively candidate-centred
nature of electoral politics in Eastern Europe
33
Romania falls exactly into this category. The political landscape is highly per-
sonalized: the parties function mostly as vehicles for leaders with personal ambi-
tions, while member and voter involvement in decision-making remains marginal at
best.
34
Power is most often concentrated at the very top of the organizations. Almost
all political parties share a leader-driven approach to politics in which a few
prominent politicians make most of the inner-party and national decisions.
To prove this point, it is sufficient to look into the requirements guiding leader-
ship selection and the rules governing how and on what basis decisions are made in
this regard within political parties. An analysis of the official statutes and regula-
tions, as published by the major parties, indicates an institutionalized centralization
and a low level of competitiveness when it comes to party leadership selection (only
the newest parties, such as USR or Demos, provide in their statutes and practices for
more inclusive and deliberative leadership selection processes
35
). New leaders are
usually chosen at party conventions, and the formal selectorate (i.e. the party
members who select candidates for leadership positions) is composed of top mem-
bers of central organization plus territorial delegates, whose representation quotas
are decided on by the central leadership.
36
While the participation of territorial
delegates in elections would give party supporters from across the country a chance
to consider their leadership choice together, the vague character of party regulations
and the loose criteria used to establish the algorithms of representation allow the
central leadership to influence the course of developments during party conventions
by manipulating the number of territorial delegates.
37
The resulting leadership
selection process is then far from inclusive.
32
Gherghina (2014: 492).
33
Sikk (2005: 393).
34
Chiru and Gherghina (2012).
35
A very pertinent analysis of an extensive use of deliberation within Demos, one of Romania’s
newest political parties, is provided by Gherghina and Stoiciu (2020).
36
Chiru and Gherghina (2012: 516).
37
Chiru and Gherghina (2012: 516–9).
3.1 Recruitment Practices Maintaining an Impermeable and Disunited Elite 101
The Conservative Party (PC) is a notable example in this regard: it held no
elections for the party leader, the founding president Dan Voiculescu, continuing
to be the president during the party’sfirst decade of existence. In the year 2000 a first
change of the statute allowed for the president to be elected by the Party Council,
while in 2003 a second change of the statute brought the party in line with the
dominant model in which the president is elected by the party congress.
38
However,
the founding president Dan Voiculescu remained honorific president of the party and
an influential decision-maker concerning party leadership selection. He sponsored
the election of his follower, Daniel Constantin, as leader of the party, the latter
remaining unchallenged in this position until the party’s absorption into ALDE,
when he became co-president together with Călin Popescu-Tăriceanu.
Party organizations not only lack commitment towards decentralized and inclu-
sive selection methods and a systematic participation of party members, but they also
fail to create a competitive environment for the selection of their leaders. Having
drafted or changed their statute in order to allow for a more inclusive leadership
selection, in practice parties still deny their members the possibility of electing their
president by not offering any real choice.
39
This has been the norm rather than an
exception throughout the last decades, with most Romanian political parties
refraining most of the time from organizing real leadership contests. The evidence
from the last decades is highly illustrative of the way in which party leaders are
selected in Romania. For more than 30 years after the state’s democratic turn, intra-
party elections remained moderately competitive at best (Fig. 3.3
40
).
Fig. 3.3 The level of competitiveness in party leadership selection
38
Chiru and Gherghina (2015: 145).
39
Chiru and Gherghina (2015: 145).
40
Figure 3.3 is inspired by Chiru and Gherghina (2012: 525), but adapted to include most
recent data.
102 3 Fragmentation: A Trait of the Romanian Political Elite
Party leadership contests often had only one candidate, who was in many
instances also an incumbent. Adrian Năstase was unanimously reconfirmed as
president of the PSD in 2001 while being the single candidate for the post; in the
PDL, Petre Roman ran alone and was re-elected three times, in 1994, 1997 and in
2000; whereas in the PRM the leadership of Corneliu Vadim Tudor was uncontested
for a long time, which allowed him to run as the single candidate and win the
presidency in 1993, 1997, 2001, 2005 and 2010.
41
More recently, in 2015, Liviu
Dragnea replaced Victor Ponta after his resignation; he was elected president of the
PSD without a competing candidate for the position.
Even elections with more than one candidate can largely be regarded as
non-competitive if measured on the basis of the net difference in percentage of
votes received by the first two candidates (according to Chiru and Gherghina,
42
any
difference higher than 30% indicates low competitiveness in leadership selection). It
seems as though the races for party leadership posts were decided well ahead of the
elections themselves. Most of them had only one contender, or—often enough—the
incumbent presidents hand-picked their successors, thus maintaining the status quo.
Indeed, “in Romanian parties it is more common for a president who steps down to
ensure the election of a favourite (two cases in PSD and PNL, and one each in PC,
PDL, UDMR, and PRM) than for leaders to resign because they know that they will
be defeated in the next elections.”
43
Among the established parties in the current
Romanian political landscape, a different pattern of leadership selection is found in
USR. The party’s current president was elected in 2019 after a 5 days internal
scrutiny in which 9314 members voted: 6097 for the incumbent (65.75%), and
2907 (31.35%) for his main competitor, Cosette Chichirău. This result, even though
right at the limit of the competitive threshold, was subsequently validated in a party
convention itself marked by adversarial attitudes.
44
It is, however, too early to know
whether the practices of leadership selection are indeed more decentralized, inclu-
sive and open in USR than in their older counterparts.
This analysis at the level of political parties is highly relevant here, due to the
important role that parties play in the recruitment of new elite members. Leadership
selection in particular is an important and consequential function of Romanian
political parties. Leaders not only oversee a party’s recruitment of new candidates
to occupy positions at the helm of the party, but also influence their nomination for
positions in the legislature and ultimately control the party’s parliamentary agendas;
also, cabinets are largely formed of members of the coalition parties. For as long as
parties function as central vehicles of recruitment and representation, and for as long
as party leaders maintain a strong hold on their organizations and the choices they
41
Chiru and Gherghina (2012: 522–4).
42
Chiru and Gherghina (2012: 526).
43
Chiru and Gherghina (2012: 525).
44
Data retrieved from the official website of the party <https://www.usr.ro/2019/09/06/dan-barna-
fost-ales-presedintele-usr-pentru-un-nou-mandat/>, accessed 15 Dec 2020.
3.1 Recruitment Practices Maintaining an Impermeable and Disunited Elite 103
present to voters, it is the party leadership, and not the electorate, who chooses
representatives.
Until 2008, members of parliament were elected in Romania through a closed list
proportional representation (PR) system. This provided party leaders with a great
amount of control, and made legislators’political careers and re-election dependent
on their ties with the political party. Taking into account only the formal regulations
as published in their statutes, all parties except the UDMR exhibited moderately to
highly centralized recruitment of candidates for the legislative seats.
45
However, no
matter how decentralized decision-making appeared in the statutes, the parties’
formal rules for the selection of candidates played only a marginal role in the de
facto nomination. Regardless of the formal provisions, informal practices often
allowed central leaderships to dominate the candidate selection process by placing
non-resident politicians with national careers on the parties’district lists, leaving no
room for genuine representatives of the respective constituencies.
46
In 1992, 13.2%
of parliamentarians had no local background and thus little knowledge about local
realities; between 1996 and 2004, the rate remained high, at about 20%, followed by
a sharp decrease to 13.1% in 2008.
47
The closed list PR system was replaced briefly, in the 2008 and 2012 elections, by
a candidate-centred system that combined elections in single-member districts with a
proportional redistribution of seats (a direct allocation of seats for those gaining an
absolute majority of votes, combined with a proportional redistribution of seats at the
county and national levels for the rest of the candidates).
48
However, this change of
the electoral system failed to regenerate politics, trigger a major renewal of
Romania’s political elite or narrow the gap between representatives and the
represented. In fact, no major transformation took place. There was hardly any
change in the parties’statutes regarding the selection of candidates for parliament,
49
which underlined once more the widespread use of informal practices to select
candidates for parliamentary elections. The reform of the electoral system in 2008
was not complemented by any significant improvement with regard to the parties’
selection of candidates; as a consequence, these reforms have enhanced clientelistic
and populist practices rather than set a new basis for the relationship between elected
legislatures and the electorate.
50
In any case, the electoral law was modified again
before the 2016 elections. Law 208/2015 was adopted in parliament by a broad
majority and marked the return to the previous PR system with closed party lists and
a 5% threshold for parties to obtain representation, and accordingly, the return of the
preeminent role played by parties and party leadership in forming the lists for the
legislature.
45
Ciobanu (2007) and Chiru and Ciobanu (2009: 197–203).
46
Chiru and Ciobanu (2009: 203).
47
Ștefan and Grecu (2014: 206).
48
Chiru and Ciobanu (2009).
49
Chiru and Ciobanu (2009: 203).
50
Ciobanu (2007: 70).
104 3 Fragmentation: A Trait of the Romanian Political Elite
Looking broadly at the entire period after the democratic turn, it could be argued
that the promotion of party members in the parliamentary game primarily depends
on the member’s rank within the organization, with intra-party selection of candi-
dates relying mainly on clientelism and personal loyalties.
51
This deprives the
electorate of its choice, and heightens the disconnection between voters and elected
officials. It also generates a fracture between those continuing in positions of power
and those newly accepted into the political game. Such fractures within political
parties and between parties and their constituencies create a legitimacy gap that
increases the level of mistrust both among political representatives and also between
representatives and represented.
Surprisingly enough, the long-term trends of parliamentary recruitment in Roma-
nia display a consistently high turnover rate, with the percentage of first-mandate
elected representatives remaining high throughout the years: 75.58% in 1996,
33.88% in 2000, 49.63% in 2004, and 54.12% in 2008.
52
As Fig. 3.4
53
shows, the
last two elections reflect the same tendency, with newcomers securing over 50% in
both the 2012 and the 2016 legislatures.
Consequently, as these data show, the limited democratization of parliamentary
and party recruitment—with selection processes that continue to be centralized
rather than inclusive—is in Romania complemented by a limited professionalization
of the legislature. Since 1990, only 135 members of the Romanian Parliament have
built an extensive parliamentary career (being re-elected at least four times and
remaining in office for more than 15 years). Almost all of these career parliamen-
tarians held important leadership roles (either at the central or the regional level)
within their political parties, an aspect which indicates their political seniority and
Fig. 3.4 Overview of parliamentary careers in the Romanian parliament
51
Ionașcu (2013: 240), Bertelsmann Stiftung (2014), Bertelsmann Stiftung (2016).
52
Chiru and Ciobanu (2009: 222).
53
Figure 3.4 was developed by the author using data from the official websites of the Romanian
Parliament (www.cdep.ro and www.senat.ro respectively).
3.1 Recruitment Practices Maintaining an Impermeable and Disunited Elite 105
their ability to hold on to power. Most of them also occupied—prior to or after their
time in parliament—positions either as members of the central government, as
representatives at the local or regional levels, as higher civil servants, or as top
leaders in state agencies or other public institutions. This observation is entirely
consistent with Ștefan and Grecu’s claim that Romanian representatives are moti-
vated by an interest in a political career, yet not necessarily in a legislative one:
For a critical mass of MPs, running for parliament is nothing more than a tactical candidacy.
Local or national politicians decide to enter the competition for parliament, not because they
genuinely want to assume legislative roles, but because they want to remain in the pool of
eligible candidates for other public offices.
54
More than one-quarter of Romania’scareer parliamentarians occupied positions
in the central government, often serving as ministers in more than one cabinet.
As Fig. 3.5
55
shows, the eight legislative terms saw no less than 22 governments
come and go. The relatively high number of governments formed in each legislative
term provided a broad basis for the renewal of ministerial personnel. Oddly though,
this cabinet instability, however, did little to limit the time spent in office by
numerous members of government.
56
Over 40% of all ministers survived the
frequent cabinet reshuffles, being appointed in more than one cabinet. While it is
not at all surprising for politicians to have long parliamentary careers, it is much rarer
for members of cabinets to be career ministers, “to be called to serve again in a new
political configuration, under the auspices of another governing coalition.
57
”
Fig. 3.6
58
provides an overview of ministerial appointments and re-appointments
since 1990.
Often, such reappointments are accompanied by a change in portfolio: from
minister of justice to minister of the interior and subsequently to minister of defence;
from minister of culture to minister of foreign affairs; or from a portfolio in
environmental protection to one in tourism and subsequently in defence.
59
Like
career parliamentarians,career ministers largely held key positions in the party
hierarchy, being members of top executive bodies within the political parties, or
being appointed after having served in the government.
60
Before concluding this section, it is worth citing an example—certainly not an
isolated case—which captures all that has been said above. This case illustrates all
54
Ștefan and Grecu (2014: 210).
55
Figure 15 is inspired by Ștefan (2009: 9), whose analysis was updated with the most recent data.
The overview does not include the period between December 1989 and June 1990, when Romania
had no elected Parliament; it does not include state secretaries when measuring the size of the
cabinets; and extends over the entire period from 1990 until 2020.
56
Ștefan (2009: 13).
57
Ștefan (2009: 13).
58
Figure 3.6 is inspired by the analysis and argument in Ștefan (2009), the data being updated to
reference 1990–2020 figures.
59
Ștefan (2009: 15).
60
Ștefan (2009: 32–4).
106 3 Fragmentation: A Trait of the Romanian Political Elite
the essential points relating to the dynamics and circulation of Romania’s political
elite:
Sorin Frunzaverde had a very rich political career. He started as a county councillor
(1992–1996) and continued as president of the county council (1996–1997) before being
called for the first time to serve in cabinet: as a minister of environment (1997–1998), of
tourism (1998) and of defense (2000). He ran for parliament in 2000 and worked for almost
4 years as a deputy. His legislative mandate was however interrupted by the local elections of
2004, when he was elected president of the county council. In 2006, he was called again in
the government as minister of defense and he served until the April 2007 reshuffle. In
November 2007 he was the first on the PD list for the European Parliament, but his MEP
term ended when he was again elected president of the county council in June 2008.
Frunzaverde is for many years vice president of his party, and most importantly the initiator
Fig. 3.5 The Romanian cabinets between 1990 and 2020
3.1 Recruitment Practices Maintaining an Impermeable and Disunited Elite 107
of the drive towards a new ideological identity of the PD that led the party in 2005 to adopt
the ‘popular’ideology [and be accepted in the European People’s Party].
61
The dynamics and circulation of the Romanian political elite reveal a narrow and
shallow renewal of its political personnel, with a nucleus of irremovable leaders,
who retain full control over the way in which power is distributed among the other
members of the ruling stratum. This core is formed by elite members who serve in
important positions of power over long periods of time. It is no coincidence that
these members of the nucleus are at the same time career parliamentarians, mem-
bers of cabinet and leaders in their political parties. In their highly centralized way,
Romanian political parties are often controlled by such leaders seeking to remain at
the helm of the organization and primarily interested in maintaining their positions.
This model of elite change is what Higley and Lengyel
62
would describe as a musical
chairs game, in which elite members exchange positions in order to survive.
These patterns of political recruitment produce a deeply fragmented ruling
stratum whose members are motivated only by the desire to seize and hold on to
power, ignoring their representative role. As shown above, since 1990 Romania has
gone through a process of recirculating only parts of its elite. It allowed its topmost
leaders to occupy legislative and governmental positions for decades (shifting from
the legislative to the executive branch and back, and switching between the local and
the national levels) and to control the selection of new elite members (using
Fig. 3.6 Overview of cabinet dynamics and ministerial careers
61
Ștefan (2009: 33). In 2011 Sorin Frunzaverde was elected first vice-president of the National
Permanent Bureau of the Democratic Liberal Party (PDL), a position he held until March 2012
when he left the party joining the National Liberal Party (PNL). No later than April 2012 he was
elected vice-president of PNL, position reconfirmed in 2014.
62
Higley and Lengyel (2000b: 6).
108 3 Fragmentation: A Trait of the Romanian Political Elite
candidate selection processes as both a disciplinary and a screening device
63
).
Parties and their strong leaders dominate the political arena, claiming to be the
guardians of democracy while in fact, they are wardens of the status quo who,
detached from the lower echelons of their organizations, disregard the needs and
interests of their party and even more of their electorate. As competition among these
leaders remains high and unstable, political formulas remain fluid, and since elec-
toral surprises and protest voters cannot be eliminated, the general political climate
continues to be marked by mistrust, internal conflicts and inconsistencies. The
fragmentation of the ruling stratum, resulting from the narrow and shallow circula-
tion of the elite, is exacerbated in Romania by the institutional context (the unbal-
anced relationship between the executive and the legislative branch) and the lack of
ideological ties among elite members. This over-fragmented legislative environment
sets Romania apart from other states like Poland or Hungary, a relevant detail that
calls for caution when analysing reform reversal in Central Eastern and South-
Eastern Europe.
3.2 Institutional Predispositions Towards Dissent
The Romanian Constitution, inspired by the French model, establishes a softer,
parliamentarized, semi-presidential regime.
64
It sets the parliament at the centre of
the democratic state, with a head of government chosen by and accountable to the
parliament, and confirmed by the president. It also provides for the president to be
elected through popular vote, and act as “the representative of the state, the guardian
of its independence and integrity, watching over the observance of the Constitution
and the proper functioning of public authorities, and ensuring the balance between
legislative, executive and judicial powers, as well as between state and society”
(Article 80 of the Romanian Constitution). With such a bicephalous executive
branch, Romania stands midway between a parliamentary and a presidential system,
closer to the one or the other depending on the relationship between the president and
the Prime Minister: when the two heads of the executive come from the same
political camp, the republic is more likely to resemble a presidential system, while
conversely, when the two come from opposing camps, the system resembles a
parliamentary one.
65
The division of power between the elected president and the
parliament-selected Prime Minister carries a high potential for intra-executive ten-
sions, particularly in situations of cohabitation or in those areas in which their
competencies are not well-defined.
66
In 2012, for instance, the rather ambiguous
wording of article 80 of the Romanian Constitution led to a conflict between the two
63
Kam (2014: 408).
64
Carp (2013: 424).
65
Naumescu (2014: 51).
66
Perju (2015).
3.2 Institutional Predispositions Towards Dissent 109
heads of the executive over their right to represent Romania in the European
Council. This conflict culminated in the suspension from office of the President,
the holding of a referendum which eventually invalidated his suspension and a
judgement of the Constitutional Court which, almost unanimously, embraced the
semi-presidential nature of the regime and acknowledged (with a tight majority of
votes) the president’s authority to represent Romania in the European Council.
Such instances are not really an exception. Conflicts frequently emerged between
the two heads of the executive, even at times when both belonged to the same party.
There were tensions between Ion Iliescu and Petre Roman (1989–1991), Emil
Constantinescu and Victor Ciorbea (1996–1998), Emil Constantinescu and Radu
Vasile (1998–1999), Ion Iliescu and Adrian Năstase (2000–2004), Traian Băsescu
and Călin Popescu Tăriceanu (2005–2008), as well as the abovementioned conflict
between Traian Băsescu and Victor Ponta (2012–2014).
67
The rivalry between the
president and the head of government often resulted in political paralysis (when
presidents refused to appoint prime ministers or their candidates for certain posi-
tions); in legislative delays (when presidents withheld promulgation of certain laws
proposed by the government and adopted by Parliament); in an overload of the
Constitutional Court (when both sides used constitutional judges as arbitrators of
personal disputes); or in lengthy and costly political crises
68
(during the impeach-
ment of the president or when the prime minister was unilaterally dismissed
69
by the
president). Such tensions between the two heads of the executive in Romania still
continue today, leading to political instability and greater levels of fragmentation,
70
reducing significantly the state’s effectiveness in undertaking reforms and weaken-
ing its democratic performance.
More common than this kind of explicit rivalry, however, are more subtle
conflicts of duty that arise between the government and Parliament. Although
according to Article 61 of the Constitution, the Parliament is the “sole legislative
authority of the state”, the government regularly takes the lead in law production. Its
systematic institutional advantage in law-making stems primarily from its right to
launch legislative initiatives. The government shares its constitutional right of
legislative initiative with the Parliament and the public, and yet an overwhelming
majority of legislative proposals are drafted in governmental offices. No less than
87.95% of all legislation passed between 1989 and 2011 came from the executive;
71
67
Naumescu (2014: 59).
68
Naumescu (2014: 59–60).
69
It is important to note here that currently the president no longer holds the power to revoke the
Prime Minister.
70
Fragmentation in this context reveals a high degree of conflict and friction between institutions.
The institutional environment favors conflict over collaboration, it encourages functional special-
ization, it allows for a lack of congruence in role perceptions, and motivates organizational dissent,
thereby forcing leaders to pursue different goals, adopt different perspectives on issues or take
divergent actions.
71
Ionașcu (2013: 246).
110 3 Fragmentation: A Trait of the Romanian Political Elite
between 2007 and 2019,
72
during Romania’s post-accession period, the figure
slightly decreased to 73.2%, but this is still exceptionally high. The major role
played by the government in shaping the legislative agenda is not necessarily a
result of parliamentary idleness. Members of Parliament themselves initiated numer-
ous legislative proposals, most of which, however, either pend indefinitely or are
rejected (97% of the rejected proposals were drafted by Members of Parliament).
73
The high number of proposals rejected by the Assembly is dependent on the way in which
the MP’s activity is defined in the Standing orders of the two Chambers. The lack of a well-
trained parliamentary administration and the civil servants’direct subordination to the
Committee’s presidents and vice-presidents or to the party group leaders deprive the MPs
of the well needed political and legal expertise required when drafting new legislation.
74
The government thus enjoys an advantage in promoting legislative change, even
though it has little control over the final outcome. This forces the Parliament into
assuming a veto player role, in charge of refining, adjusting and correcting off the
rails governmental proposals.
75
The prospect and then the actual integration into the European Union had a
profound impact on the relationship between Parliament and the government in
office. It further magnified the institutional divergence between the two, contributing
to the fragility of the former, coupled with a gain in policy-making responsibility of
the latter. The transfer of decision-making powers from the national to the suprana-
tional level shifted the locus of policy-making to the executive branch, yet in an odd
manner. Members of government did not use supranational decision-making to
pursue preferences different from those of their legislature, but rather used
EU-driven reforms in order to establish themselves domestically as de facto legis-
lators. The adoption of the acquis communautaire was by and large claimed to be a
matter of immediate urgency, while the fulfilment of the pre- and post-accession
requirements was a necessary proof of governmental efficiency. This provided
enough grounds for the government to repeatedly legislate by decree.
Under Article 115 (4) of the Romanian Constitution, the government is accorded
the power to adopt emergency ordinances and thus to promote legislative change
with immediate (though temporary) effect. In this manner, the government’s will can
be directly enforced, in exceptional cases and under the condition that the respective
provisions are subsequently submitted for debate in Parliament. Romanian govern-
ments were not shy in making use of this right to autonomous law-making, passing
legislation by emergency ordinance (OUG) even when there was no emergency that
justified such a measure. The adoption of emergency ordinances was an exceptional
measure only until 1996 (16 emergency ordinances were issued between 1992 and
1996). Ever since, their number increased, reaching approximately 296 per year in
72
The year 2020 was intentionally excluded from the analysis here, as the COVID-19 pandemic
created an exceptional situation for both the legislative and the executive.
73
Ionașcu (2013: 247).
74
Ionașcu (2013: 247).
75
Ionașcu (2013: 248).
3.2 Institutional Predispositions Towards Dissent 111
1999.
76
The average remained high in the run-up to and the aftermath of EU
accession, with the various cabinets formulating approximately 185 ordinances
annually between 2005 and 2008, and approximately 100 per year between 2009
and 2020, with two notable exceptions in 2015 when only 66 emergency ordinances
were issued and 2020 when due to the COVID-19 pandemic the number increased to
211.
77
This trend is confirmed also by the examination of the legislative background for
reform in the two cases under inquiry below, which reveals a constant abuse of
emergency procedures. Compliance with EU requirements often serves as a basis for
justifying the urgency with which measures are adopted without the necessary
debate in Parliament:
Following the commitments made by Romania in the areas of judicial reform and the fight
against corruption as part of the Cooperation and Verification Mechanism (CVM) [...],
taking into account the second benchmark referring to the establishment of an Integrity
Agency [...], given the delays which prevented the Agency from being fully operational
[...], taking note of the necessity to implement in due term the measures provided for in the
Action Plan for meeting the CVM objectives [...], the Romanian Government adopts the
present emergency ordinance. (Emergency Ordinance OUG 138/2007
78
)
The following chapters will elaborate on this point by providing further insights
into how law-making by decree and other emergency procedures were misused and
prevented Parliament from holding informed and vigorous debates on the respective
matters. It is enough here to highlight the essential issue: through the institutional
arrangement that emerged after 1989, the Romanian government is given consider-
able room to legislate under a plea of necessity, which places the Parliament ex ante
in a position of inferiority
79
that is countered by a tendency of the latter to strengthen
its oversight role. The incidence of no-confidence motions reflects this tendency.
During the 2016–2020 legislature, nine motions have been introduced, of which one
initiated by the Social Democratic Party (PSD) against its own government and two
supported by PSD led to a cabinet overthrow. In 2012–2016, only four motions were
tabled, yet in the previous term, there were eleven; six proposals for no-confidence
voting were presented in front of the parliamentary plenum in the period 2004–2008,
two during the 2000–2004 legislature, four between 1996 and 2000, and five in the
1992–1996 term.
80
The use of this procedure illustrates quite clearly the readiness of
the Parliament to exercise “its veto power against the executive by expressing its lack
of confidence in the governmental team”.
81
There is an even more relevant measure
76
Ionașcu (2013: 249).
77
According to the data published by the Legislative Council at http://www.clr.ro, accessed
7 Nov 2017.
78
Government of Romania (2007).
79
Ionașcu (2013: 249).
80
According to the data published on the official website of the Romanian Parliament (http://www.
cdep.ro/pls/parlam/motiuni2015.lista), accessed 16 Dec 2020.
81
Ionașcu (2013: 252).
112 3 Fragmentation: A Trait of the Romanian Political Elite
at the Parliament’s disposition to control the government through strong formulas of
oversight: the incidence of parliamentary questions and interpellations. There were
no less than 11,597 questions and 6331 interpellations formulated during the
2008–2012 parliamentary term (approximately three times more than during the
2000–2004 mandate) and 16,657 formulated during the 2016–2020 parliamentary
term.
82
All things considered, the Constitution and the rules and procedures governing
the political process provide for a tension-laden institutional context: an overlap and
competition between the two heads of the executive branch, and an uneven balance
of power between legislative and executive bodies. The lack of cooperation within
and among the three branches of government, their competitive tactics and the
misuse of procedures reveal an institutional environment characterized by the failure
to engage in complementary action. This significantly increases the overall level of
elite fragmentation in Romania.
3.3 The Lack of Solidarity and Value Consensus
Perhaps the most important factor leading towards elite disintegration—probably
more important than the circulation patterns or the institutional context—is the lack
of mutual trust among elite members. Mutual trust derives from a sense of commu-
nity that is cultivated among elite members working together to promote policies and
legislation that benefits the Romanian and the European society, strengthens democ-
racy and ensures respect for the rule of law. No democratic institution or political
party can effectively pursue its goals without a set of fundamental normative
commitments, ends, values and principles shared by all members. Common expec-
tations about appropriate political behaviour are crucial for institutions and organi-
zations to acquire stability, for their members to acquire confidence in each other,
and eventually to win the trust of the electorate. Value consensus translates here into
a willingness of elite members to challenge one another on policies, views and
priorities, but at the same time be reluctant to resort to action that would threaten the
stability of their parties, institutions or the stability of the democratic system.
A helpful starting point for assessing the degree of value consensus and solidarity
among elite members is the observation of their ideological orientations and partisan
identifications. In a party system such as the one in Romania, with only a few
political competitors (largely the same ones in every electoral cycle), parties would
be expected to have clear programmatic preferences and to exploit ideological
cleavages in order to maximize their votes.
83
Romanian political parties have largely
82
The data were retrieved from the Institutul pentru Politici Publice București (2012: 24–8) and the
official website of the Romanian Parliament <http://www.cdep.ro/pls/parlam/interpelari.home>,
accessed 16 Dec 2020.
83
Gherghina and Jiglău (2011: 72).
3.3 The Lack of Solidarity and Value Consensus 113
disappointed this expectation during the last few decades. Their political identities
and ideologies were renegotiated and remoulded with each change of government or
legislature.
Probably the most radical change of direction was adopted in 2005 by the
Democratic Party (PD), which after more than a decade of affiliation with the
Socialist International shifted from social democracy to liberal-conservatism.
84
With this shift, the Democratic Party (later renamed the Democratic Liberal Party,
PDL) emerged as the main conservative group, taking over government in 2008
while forming a coalition with the PSD-PC alliance. In this manner, the PDL
established itself as an important force in Romanian politics, but only until 2014,
when it ceased to exist and merged with the National Liberal Party. Before the PDL’s
ideological shift in 2005, conservatism was weakly represented: one conservative
party, the PNTCD, was dissolved in 2000, while the other, the PC, was able to gain
seats only as part of an alliance with the Social Democratic Party (PSD).
85
While it is
true that parties such as PSD prove conservative in their action, in their statute they
claim to be modern and progressive,
86
which adds to the ideological confusion
characterizing the Romanian political landscape. The Conservative Party
(PC) itself had an ambiguous ideological agenda, reflected not only in its long-
standing alliance with the PSD, but also in its international affiliation; after unsuc-
cessfully trying to become a member of the European People’s Party, the PC
reoriented itself towards the European liberal democrats.
87
The evolution of the social democratic parties was in this respect very similar.
Prior to 2005, social democracy was largely represented by the PDSR (later renamed
the PSD) and the PD, both of which formed after the split of the National Salvation
Front (FSN) in 1991. The two constantly disputed their supremacy over the social
democratic left, a competition which was resolved when the PD shifted from social
democracy to liberal-conservatism, leaving the PSD as the only representative of
social-democratic constituencies.
88
As a party concerned (de jure but not always de
facto) with general principles of progressive social democracy, PSD was surpris-
ingly open towards governing in coalition with liberal conservatives.
Similarly, the party most closely aligned with liberal values, the PNL, itself went
through numerous splits and fusions, often forming alliances with parties that were
hardly its close ideological neighbours. It is true that ideological cleavages are not
always very pronounced. The three ideological families in Romania (social democ-
racy, liberalism and conservatism) form a triangle in which each family has a
particular feature in common with the other two: social democrats and liberals
share an enthusiasm for social freedom; liberals and conservatives have a common
84
Gherghina and Jiglău (2011: 72) and Chiru and Gherghina (2012: 516).
85
Gherghina and Jiglău (2011: 84).
86
Article 8(1) in the Statute of the Social Democratic Party, <https://www.psd.ro/structura-si-
organizatii/statut/>, accessed 16 Dec 2020.
87
Gherghina and Jiglău (2011: 78).
88
Gherghina and Jiglău (2011: 85).
114 3 Fragmentation: A Trait of the Romanian Political Elite
position with regard to the necessity of limiting state intervention in economic
affairs; while conservatives and social democrats consider the community, and not
the individual, to be the primordial structure of society.
89
However, more often than
not the legislative measures adopted by such cross-ideological coalitions are in sharp
contradiction to the fundamental principles and values of the respective parties,
principles and values on the basis of which they were in fact elected. As a result,
electoral support remains fairly fluid for all parties, making it “impossible to claim
that the ideological families have strong roots in the society”, or that they are
ideologically institutionalized.
90
Romanian political parties largely lack a program-
matic character and fail to create strong links with their voters, substituting ideology
for clientelism, political patronage or personal charisma.
91
Nearly all political parties
have the same or similar policy objectives, disputing each other’s ability to reach
those aims.
Throughout the entire period of 1990–2020, the major political parties in Roma-
nia behaved in an ideologically incoherent way. They formed unusual political
alliances (or alliances within alliances) not only on the eve of elections, but also
during parliamentary terms, which caused ideological borders to be crossed and
policy making to become unpredictable (Fig. 3.7
92
).
Fig. 3.7 Alternation of major Romanian political parties in power
89
For a very pertinent discussion of the ideological landscape in Romania see Gherghina and Jiglău
(2011: 77).
90
Gherghina and Jiglău (2011: 87).
91
Chiru (2016).
92
Figure 3.7 was developed by the author based on data available at https://parlament.openpolitics.
ro/partide/ accessed 16 Dec 2020.
3.3 The Lack of Solidarity and Value Consensus 115
Romania entered the European Union in January 2007, with the centre-right
Truth and Justice Alliance formed by the National Liberal Party (PNL) and the
Democratic Party (PD) in government, and with the left-wing Social Democratic
Party (PSD) in opposition. Soon after the accession, in April 2007, the PNL—PD
coalition collapsed, and the latter joined the opposition. The government was
subsequently formed by the remaining National Liberal Party (PNL) together with
a smaller ally, the Democratic Union of Hungarians in Romania (UDMR)—an
ethnic party uniting different ideological streams. A group that had splintered from
the National Liberal Party (PNL), which was in power at that time, merged with the
Democratic Party and joined the opposition, forming the Democratic Liberal Party
(PDL). The parliamentary elections in December 2008 were to offer a novel solu-
tion: a coalition government formed by the former opposing social democratic party
(the PSD), its smaller conservative ally (the PC), and the newly formed conservative
PDL. However, this coalition was to last only until 2009, when the Social Demo-
cratic Party (PSD) and the Conservative Party (PC) joined the opposition once again.
Later, in February 2011, the social democratic PSD, along with the other opposition
parties, forged an alliance with the National Liberal Party (PNL) and the Conserva-
tive Party (PC) called the Social-Liberal Union, which defeated the government on a
censure motion and came to power in May 2012. At this stage, the Conservative
Party (PC), a former ally of the Social Democratic Party (PSD), had in turn already
joined the Centre-Right Alliance with the National Liberal Party. This Centre-Right
Alliance was part of the Social-Liberal Union, which, among others, comprised the
Social Democratic Party (PSD), and from September 2012 onwards, the National
Union for the Progress of Romania (UNPR
93
). These latter two themselves formed
the Centre-Left Alliance. In December 2012, the parliamentary elections brought the
Social-Liberal Union (including both the Centre-Left and the Centre-Right Alliance)
to power. The Centre-Right Alliance broke apart in 2013. The National Liberal Party
(PNL) joined the opposition soon after, in March 2014, and formed a new alliance,
the Christian-Liberal Alliance, this time together with the Democratic Liberal Party
(PDL). This alliance was dissolved in November 2014 when the two parties merged,
with the PDL being absorbed by the PNL. The parties that remained in power in
March 2014 (the PSD, the UNPR and the PC) themselves then formed an alliance,
which lasted until June 2015, when the Conservative Party (PC) merged with a
splinter group from the National Liberal Party, the Liberal Reformist Party, to form
the current Alliance of Liberals and Democrats (ALDE).
Most recently, the government formed following the 2016 elections (a coalition
government formed by the PSD and the ALDE) was dismissed after a motion of no
confidence that was tabled by the PSD itself. The new cabinet of the same
PSD-ALDE coalition assumed office in June 2017 and was dismissed by the PSD
parliamentary majority 6 months later on the grounds of inefficiency. The third
93
UNPR is a party formed by members who formerly belonged to the Social Democratic Party
(PSD) and to the National Liberal Party (PNL); it is therefore ideologically heterogeneous
(Gherghina & Chiru, 2016).
116 3 Fragmentation: A Trait of the Romanian Political Elite
PSD-ALDE cabinet lasted about 21 months in office, until November 2019 when it
was dissolved through a no-confidence vote tabled by the opposition but sponsored
by members of the PSD. The newly formed government brought the PNL to power,
sending the PSD and ALDE in opposition. But only 3 months later, the PSD initiated
yet another no-confidence vote in Parliament which led to the dismissal of the newly
installed PNL cabinet. The last act in this absurd political theatre was the
reappointment, in March 2020, of the very same PNL cabinet by the very same
PSD parliamentary majority. This detailed and rather confusing account of how
coalitions and cabinets have been formed in Romania since 2004 shows the ease
with which Romanian political parties change their ideological preferences over
fairly short periods of time. This continuous oscillation of parties or splinter groups
between power and opposition is in fact a subtle indicator of the non-ideological
character of Romania’s political leadership. Such partisan realignments and sudden
reshuffling of party positioning is clearly tactical and not substantive in nature.
Furthermore, the manner in which political parties abandon a coalition by
forming an alliance with another political group mirrors the behaviour of individual
party members relative to the party to which they belong: numerous members of
Romanian Parliament repeatedly changed their partisan affiliation, either becoming
independent representatives or joining a different political party. This proves once
again the lack of cooperation and solidarity among party members, who are driven
by self-serving strategic calculations.
In general, the members of the Romanian political elite, although highly inter-
ested in accessing power and pursuing a political career, are far from excessively
competitive. Instead of preserving their party positions and competing with each
other for electoral gains, many Romanian representatives prefer to migrate from one
political party to another right before the elections, joining the political party most
likely to win the majority of seats in Parliament. The great number of elite members
who have migrated from one political party to another while holding office is
remarkable.
94
In total, more than 35% of the representatives in the former legislature
(2012–2016) have shifted political parties or have become independent during their
term in Romanian Parliament: of the 263 deputies 154 (37%) shifted their party
affiliation at least once during their mandate, while in the Senate, 69 out of 110 sen-
ators (39%) migrated at least once from one party to another between 2012 and
2016.
95
The record in this regard was held by three members of Parliament who
changed their affiliation no less than three times during the previous legislative term.
An illustrative example is that of Ion Șcheau, who entered the Chamber of Deputies
in 2012 as a member of the PP-DD; in May 2013, he left the party and became an
independent Member of Parliament; in October that year, he joined the PSD, and
94
It is important here to note that the incidence of party-switching is in general not related to the
experienced splits or mergers of political parties. The number of party-switchers adds to the number
of elite-members who changed their affiliation as a result of the emergence of a new political
organization or the disappearance of an old one.
95
Institutul pentru Politici Publice București (2016: 18–20).
3.3 The Lack of Solidarity and Value Consensus 117
then the PDL in November 2014, only to become a member of the PNL in February
2015. A similar path was chosen by Diana Tușa, a member of the PNL who was
elected in 2012 as a representative in the Chamber of Deputies: she became
independent in June 2013, and joined the PDL one year later, subsequently returned
to the PNL in February 2015, but resigned and became independent once more in
September 2016. Senator Ciprian Rogojan entered Romanian Parliament on the
PDL’s lists, became independent in February 2014, but joined the UNPR in
November that same year; however, he left the group and became independent
again in May 2016.
96
Party-switching was frequent in previous legislatures
as well: 20% of all Members of Parliament changed their affiliation during the
2008–2012 legislature, 10% in 2000–2004 and 17% in 1996–2000.
97
It remained
a common practice also during the current legislature, with more than 40% of the
representatives migrating to other parties or becoming independent between 2016
and 2020.
98
Such practices suggest an absence of strong organizational ties that could bind
party members together and create a political elite that is divided along ideological
lines. The rather abrupt manner of building and breaking coalitions and the irregular
fluctuation of the major political parties between power and opposition illustrate well
enough the nature and degree of elite fragmentation in Romania. In addition,
political representatives’migration from one party to another in the hope of winning
office does not only serve as another argument supporting the claim that the
Romanian political elite is highly fragmented, but more significantly, it highlights
a particular self-interest on the part of the members of the Romanian ruling stratum.
3.4 Elite Fragmentation and Romania’s EU Accession
Observing closely the last three decades to note the variations in the level of
integration or disintegration of the political elite in Romania, it becomes evident
that the frictions between the members of the ruling stratum were not constant
throughout the entire period. For some years, between 2000 and 2007, there was a
brief moment of calm and consensus, which in retrospect strikingly contrasts with
the intense fragmentation that has characterized the Romanian political elite ever
since.
This inconsistency in the level of elite fragmentation can be explained with
reference to Romania’s progress towards integration into the EU, its position as
outlier in the 2004 enlargement and its delayed accession in 2007. As mentioned in
96
Institutul pentru Politici Publice București (2016: 20).
97
Ionașcu (2013: 241).
98
The data supporting this claim were retrieved from <https://parlament.openpolitics.ro/export/>,
accessed 16 Dec 2020.
118 3 Fragmentation: A Trait of the Romanian Political Elite
Chap. 2,
99
the European Union had a flexible approach as regards its Eastern
enlargement: it balanced the requirements of a single policy framework open to all
candidate states, with a differentiated allocation of rewards (contractual or financial),
delivered pursuant to an assessment of the reform progress in each individual
state.
100
This flexible differentiated approach allowed the EU to evaluate constantly
Romania’s merits and performance and act in accordance.
As a consequence, Romania signed its Europe Agreement in 1993 together with
Bulgaria, Slovakia and the Czech Republic, 2 years later than Hungary and Poland,
but a couple of years before the Baltic states and Slovenia. All Europe Agreements
signed in 1993 or later (Romania’s included) provided for a unilateral suspension
clause allowing either party to suspend cooperation if the obligation prescribed in the
agreement were not fulfilled.
101
This clause was never activated for Romania
however, the state advancing slowly on its path towards accession. Though, in
another important integration step, pursuant to the Luxembourg European Council
of December 1997, the opening of accession negotiations was delayed for Romania,
just as it was for Bulgaria, Latvia, Lithuania and Slovakia. Negotiations were first
launched for all these states in the year 2000, following the European Council in
Helsinki in December 1999, when the prospect of accession became real due to EU’s
commitment to an all-inclusive integration of the states in Central and Eastern
Europe.
102
This integration dynamic, characterized by a two steps forward one step back
advance alongside other CEE accession states, kept Romania cautiously optimistic
about its chances of acquiring EU membership together with the other eight candi-
dates from Central and Eastern Europe. It strived to make progress and bring its
legislation into compliance with the democratic and accession acquis. Yet, in 2004,
not only was Romania’s and Bulgaria’s accession delayed, but their accession
treaties included a safeguard clause allowing for the accession to be further post-
poned if the states proved unprepared to meet the membership requirements.
103
Even
more, Romania was the only candidate for which the postponement clause could be
activated by a qualified majority voting in the Council.
104
Arguably, these accession conditions (tighter than the ones applicable to the other
states in the region) coupled with its delayed accession date and an intense moni-
toring of its progress placed Romania under an unprecedented pressure. This raised
the stakes of integration to an even higher level. The members of the Romanian
political elite consequently bound themselves even more to direct all their efforts to
acquiring EU membership in 2007 without any further postponement. Indeed, in this
period political decision-makers got along surprisingly well, despite the heavy
99
Chapter 2, Sect. 2.1.2, Europeanization East: The conditionality-driven reform.
100
Papadimitriou and Gateva (2009: 155–6).
101
Papadimitriou and Gateva (2009: 155–8).
102
Papadimitriou and Gateva (2009: 156–7).
103
Steunenberg and Dimitrova (2007: 9).
104
Papadimitriou and Gateva (2009: 159).
3.4 Elite Fragmentation and Romania’s EU Accession 119
legislative burden.
105
As the analysis above shows (see also Figs. 3.2,3.5 and 3.7),
throughout these years the major political parties experienced less splits and
mergers, fewer coalitions were forged and re-forged midway between parliamentary
elections, and fewer government changes and executive adjustments were made.
At the level of political parties, as the accession to the European Union drew
nearer, they adopted an EU-compatible agenda, a shift visible even in the rhetoric of
the Great Romanian Party (PRM), known for its traditional, authoritarian and
nationalist outlook.
106
The integration into the EU triggered a programmatic shift
of Romanian major political parties, which turned in the eve of accession to be either
neutral (PRM), in favour (PSD and PUR) or strongly in favour (PD, PNL, and
UDMR) of EU membership,
107
and which channelled all their political ambitions
into meeting the requirements and joining the Union. Political leaders legitimized
their policy choices with a discourse referring to Romania’s commitment and
belonging to Europe, a point of view largely mirrored by public opinion.
108
In 2000 PDSR won the elections on a pro-European campaign promising political
stability, which it delivered by governing in a fairly stable minority coalition until the
next regularly scheduled parliamentary elections. A new coalition cabinet was
formed in 2004 by the Justice and Truth Alliance of PNL and PD together with
UDMR and PC, which governed until 2007 under a pro-European anti-corruption
program.
109
This drive to curb corruption was very much aligned with the require-
ments and expectations of the EU, while the consistent manner in which political
elites seemed to pursue a pro-European and anti-corruption agenda raised hopes for a
successful continuation of reforms after Romania’s accession.
However, the post-accession period not only saw a reversal of the anti-corruption
reforms, but also a return of the political elite to its old fragmented pattern of
interaction, dominated by party leaders and their personal ambitions. After having
gained full membership in the EU Romania entered a period of consolidated political
instability, with sudden changes of governments and policy, and a low degree of
predictability and consistency in decision-making. As the analysis above shows,
after 2008 several measures have been adopted that hindered political competition.
The repeated changes to the electoral law have generated lasting negative effects on
the permeability of the ruling stratum, leading to a post-accession disintegration of
the political elite and its detachment from the needs and interests of the public. The
105
In the pre-accession period, between 2001 and 2006, the Romanian Parliament adopted yearly a
number of laws two or sometimes three times higher than in the post-accession period.
106
Vachudova (2008: 874).
107
Vachudova (2008: 873).
108
According to the Eurobarometer 64.2 of autumn 2005 for Romania, the country’s citizens
displayed the highest level of trust in EU institutions among all members and accession states.
The trust level remained equally high in the years just prior to Romania’s EU accession (see also the
Eurobarometer 66 of 2007b, page 108). The level of trust in EU institutions among Romanians
decreased slightly in the post-accession period, but remained at all times above the EU average, with
more than 45% (Chiciudean & Corbu, 2016).
109
Anghel (2017: 21–2).
120 3 Fragmentation: A Trait of the Romanian Political Elite
political parties with shallow societal roots and a vague ideological orientation have
failed, and are still failing, to adequately channel social interests and to provide a
strong linkage between representatives and the represented. Moreover, the highly
centralized control of party leaders over the limits of political power has inhibited,
and continues to inhibit, any bottom-up participation; it excludes from decision-
making both the electorate and the lower political echelons. In this respect, the
democratic game after the accession to the EU turned out to be no more than a game
of musical chairs
110
played by the topmost political leaders who appear to be
interested only in retaining their seats in office.
Also the pre-accession programmatic promise to curb high-level corruption was
rendered void by the unreliable and inconsistent manner in which political parties
and party members behaved after January 2007. As shown above, closer scrutiny of
inter- and intra-party dynamics lends considerable weight to the argument that the
Romanian party system lacks ideological coherence. The numerous party splits and
fusions and the forming and breaking of grand coalitions have rendered it almost
impossible to distinguish the two sides: who are the high-level corrupt officials, and
who are those that fight them on a justice-reform platform. In truth, a close obser-
vation at the level of individual party members shows almost no difference between
the two sides. An overwhelmingly great number of party members have abruptly
changed their affiliation on the eve of elections in order to obtain secure political
positions, regardless of the inevitable shift from an anti-corruption to a non-anti-
corruption agenda. This unreliable behaviour proves once more that elected elites in
Romania are neither bound to rely on the substance of their party program nor to take
into account the preferences and concerns of their electorate. They “understand
political representation as a form of personal strategic action (hence their political
defections).”
111
The institutional arrangements exacerbate these struggles for power. Members of
the Romanian elite continue to dispute their institutional roles, contesting how
decisional power is shared between the two heads of government, and how
law-making power is divided between the legislative and the executive. The blurred
constitutional division of authority among the three branches of government (legis-
lative, executive and judiciary) leads to imbalances which adversely affect exchange,
dialogue and consensus building among political leaders; they provide a wider scope
for the abuse and manipulation of democratic procedures, while at the same time
they narrow down the scope for parliamentary debate and political representation.
The image that emerges after Romania’s accession to the EU in 2007 is one of
increased elite fragmentation, affecting the extent to which elite members are able to
act on the basis of their personal preferences, as opposed to pursuing party or societal
interests. This disintegration of the Romanian political elite could itself be regarded
as a post-accession reversal, or on the contrary it could be seen as the end of a
simulated democratic consensus. Whether the period of calm that preceded
110
Higley and Lengyel (2000b: 6).
111
Ionașcu (2013: 245).
3.4 Elite Fragmentation and Romania’s EU Accession 121
Romania’s accession to the EU was a mere pretence is, however, less relevant here;
more important are the effects the elite integration produced before January 2007,
and the effects its disintegration has produced ever since.
As the above analysis demonstrated, the composition, the institutional embodi-
ment, and the lack of value consensus among the members of the ruling stratum,
allowed for a post-accession return to an over-fragmentation of the elite, which itself
conditioned the elite members’pursuit of individual over group or societal interests.
Once Romania joined the EU, the struggle became less about establishing solid
institutions and the rule of law, less about achieving consensus and societal well-
being, and became more an individualistic competition for office, influence and, as
the following pages will show, for personal gains that went much beyond electoral
returns.
However, in this same context of intense fragmentation certain Europeanizing
reforms advanced smoothly, while others went through an abrupt reversal. An
in-depth analysis of the adopted legislation that led to this differential result of
Europeanization across policy fields will reveal the degree and triggers of
de-Europeanization. The following chapters will engage therefore in an extensive
discussion of the manner in which self-interested political elites abuse their
law-making function and frustrate genuine Europeanizing reform in some domains,
while being perfectly capable of acting in the public interest and in compliance with
EU requirements in others. The two following case studies trace the legislative path
of two reforms, both of which are relevant in the context of Romania’s
Europeanization: the anti-corruption reform and the laws establishing the National
Integrity Agency; and the nature-conservation reform and the laws regulating the
protection of environmentally significant habitats and species. The two cases show a
high variation in the explanatory variable: the personal interests of the political elite,
which accounts for divergent results of Europeanization in the two policy areas and
renders proof of the fact that the success of Europeanizing reforms does not depend
primarily on the adaptational pressure emanating from the EU, but rather on the
interests pursued at the domestic level by the political elite.
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122 3 Fragmentation: A Trait of the Romanian Political Elite
Chapter 4
Romania’s Justice and Anti-Corruption
Reform: A Stubborn Divergence from
European Norms in Pursuit of Personal
Gains
He who does not prevent a crime when he can, encourages it.
(Lucius Annaeus Seneca)
The previous chapter highlighted fragmentation as a conditioning factor that exac-
erbates the tendency of the political elite to pursue narrow individual interests
instead of party, group or societal concerns. The level of fragmentation is thus
closely tied to both legislative practices and legislative outcomes, and serves as a
baseline for assessing the dynamic of Europeanization. In highly fragmented
law-making environments such as Romania’s, political decision-makers, having no
strong ideological or institutional ties, are more tempted to instrumentalize demo-
cratic mechanisms in pursuit of private benefits, thereby destabilizing the state’s
already adopted reforms. Grounded on this hypothesis and using Romania’s justice
and anti-corruption reform as a case study, in this chapter we will critically evaluate
the drivers of legislative change in this particular policy field. The analysis follows
(1) the legislative developments (in both procedural and substantial terms), (2) the
consequences implied for the overall level of Europeanization, (3) the nature of the
interests pursued by the representatives when proposing and adopting amendments
to the relevant laws, and (4) the role of civil society in communicating public
interests and holding representatives to account when their legislative preferences
diverge from those of the public.
Since January 2007, the European Commission has been using a number of
benchmarks to measure Romania’s progress in the area of justice and anti-
corruption, with public integrity being a key dimension of these reforms. One of
the four benchmarks set in the Cooperation and Verification Mechanism (CVM)
concerns the legal framework for integrity, i.e. the establishment of a National
Integrity Agency (ANI) with “responsibilities for verifying [public officials’] assets,
incompatibilities and potential conflicts of interest, and for issuing mandatory
decisions on the basis of which dissuasive sanctions can be taken”.
1
The Commis-
sion’s approach underlines the fact that the fight against corruption in Romania is
1
Commission of the European Communities (2006).
©The Author(s) 2022
L. Martin-Russu, Deforming the Reform, Contributions to Political Science,
https://doi.org/10.1007/978-3-031-11081-8_4
123
tightly linked to the state’s ability to ensure public integrity through formal require-
ments. Therefore, the CVM monitoring reports regularly evaluate the robustness of
the legislation on the basis of which the ANI operates, as well as the performance
and efficiency of the agency in detecting and sanctioning Romanian public officials’
conflicts of interest, or unjustified increases in assets. Given the progress achieved in
establishing the ANI’s legal framework in the first months after having joined the
EU,
2
Romania was expected to become increasingly compliant with the require-
ments set by this benchmark; the agency was counted upon to strengthen its
capabilities and become more and more efficient under the EU’s continued CVM
monitoring, enhancing public integrity and thus diminishing the scope for corrup-
tion. However, judging by the legislative changes affecting the ANI’s legal mandate
since 2008, Romania shows anything but steady and predictable progress. The
ANI’s legal status was repeatedly weakened, which rendered the proper implemen-
tation of the laws basically impossible and prevented the agency from performing
effectively. This chapter will explore this post-accession legislative setback, indi-
cating on the one hand the considerable extent to which lawmakers acted in their
own personal interests when re-designing policies, and on the other hand the limited
power of civil society to intervene. As we will see, political representatives use and
abuse the democratic framework in pursuit of narrow personal interests, deforming
the reforms designed to serve the public good. Understanding this reality is essential
to understanding de-Europeanization and to explaining why the widespread assump-
tion that EU accession and conditionality bring about successful domestic change
does not hold true for Romania’s anti-corruption reform.
4.1 The Development of Integrity Laws
and the Corresponding Level of de-Europeanization
Over the last 15 years, the European Commission has been closely monitoring
Romania’s progress in the area of public integrity as part of its post-accession
conditionality. Judging by the benchmark established by the Commission in 2006,
Romania’s development does show some progress, yet this progress is far from
consistent or irreversible. An in-depth analysis of the legislative framework for
integrity reveals that numerous amendments passed in the years following
Romania’s accession were intended to significantly dilute the existing legislation
by repealing or limiting those provisions that were inconvenient for public officials.
This section will cite the most illustrative and relevant examples, showing the
manner in which the Romanian political elite subverted the progress made through
the adoption of the law establishing the ANI in 2007.
Before considering examples of how it was diluted, it makes sense to identify and
discuss the procedural steps that led to the adoption and modification of Romania’s
2
Commission of the European Communities (2008).
124 4 Romania’s Justice and Anti-Corruption Reform: A Stubborn Divergence...
legislative framework for public integrity in the first place (see Fig. 4.1
3
). If analysed
in technical procedural terms, the integrity legislation has gone through a very long
and complicated development, with numerous refinements being made through both
amendments to existing laws and through newly adopted laws over a period of
15 years.
After being drafted in July 2006 and adopted in May 2007, the law establishing
the ANI was quickly amended and supplemented by two Government Emergency
Ordinances: OUG 49 and OUG 138 of 2007. Amending a law through a Govern-
ment Emergency Ordinance (OUG)—a very common practice in Romania even
when no emergency requires it—allows for the legislative changes to take immediate
but temporary effect; the changes that become effective with the adoption of an OUG
are only subsequently submitted for debate in Parliament, to be rejected or adopted
as separate laws. Accordingly, in 2008, one year after its initial adoption, the ANI
Law was supplemented by two additional laws approving the two OUGs already in
force: Law 94 and Law 105 of 2008.
Later, in April 2010, a decision issued by the Romanian Constitutional Court,
Decision 415, declared unconstitutional several provisions of the initial ANI Law
(144/2007) and requested that the parliament re-evaluate and amend them accord-
ingly. Within one month, a draft law was introduced to the parliament, adopted by
both chambers and submitted to the president for promulgation. In June 2010,
Fig. 4.1 The development of integrity laws—technical procedural aspects
3
Figure 4.1 was developed by the author based on data gleaned from the official websites of the
Romanian Parliament (www.cdep.ro and www.senat.ro). The entries highlighted in different shades
of blue represent adopted and promulgated legislative acts that run in parallel to the initial ANI Law,
Law 144/2007 (displayed in black). The binding decisions of the Romanian Constitutional Court
(DCC) are displayed in grey. Figure 4.1 also indicates (in the respective colours for each law) all the
intermediary drafts adopted and amendments proposed and discussed in the Chamber of Deputies
(CD) or in the Senate (S) before the final vote and the promulgation.
4.1 The Development of Integrity Laws and the Corresponding Level... 125
however, the President of Romania refused promulgation requesting the parliament
to re-examine the legislation and calling into question the compatibility of certain
provisions with the very purpose of the law. The draft’s second passing through
parliament was concluded in July 2010, when promulgation was delayed again due
to a request filed by the president for a preventive constitutionality check of the draft
proposal. The Decision 1018 of the Constitutional Court set the draft on its course
through parliament a third time. Eventually, all concerns and the proposed changes
were dealt with and included in a new law (176/2010) promulgated in September
2010. The refinement of this draft in accordance with the recommendations of the
Constitutional Court and the presidential request took in total five months, during
which the agency was practically unable to act. Moreover, the newly adopted law
amended, but did not consolidate or repeal preceding legislation; consequently, in
2010 the functioning of the ANI came to be regulated not by one, but by four
different laws.
The constitutionality of the legal framework for guaranteeing integrity was
challenged again in 2014, when the Constitutional Court urged the Parliament to
amend Art. 25 (2) of Law 176/2010. The article, establishing the sanctioning regime
for elected officials found guilty of incompatibility or conflict of interest, was
declared imprecise and unpredictable. On these grounds the Constitutional Court
proposed, in its Decision 418 of 2014, a reinterpretation of the text. As a conse-
quence, not one, but two legislative proposals were presented in Parliament. They
both addressed exactly the same situation, proposed similar modifications to Article
25 (2), both were introduced to the Parliament around the same period (in June and
October 2014), both at the initiative of MPs, and in both cases a decision by the
Senate was pending until February 2021 when the proposals were finally rejected by
the higher chamber.
As Fig. 4.2
4
shows, the two draft proposals followed almost the same legislative
path. Both were first submitted to the Senate, even though such pieces of legislation
must be previously submitted to the Chamber of Deputies, since the Senate has a
decision-making authority on issues of this kind. On 25 March 2015, both draft laws
reached the lower parliamentary chamber, where—without any consideration of the
implications of the proposed measures, without any debate and without even being
put on the voting agenda—they were tacitly adopted eight months later and sent back
to the higher chamber in their initial form. The two proposals had been pending
before the Senate for more than five years before being rejected in February 2021. It
is also worth mentioning that no less than ten opinions were issued by various
parliamentary committees on each of the two draft laws. At least three different
advisory committees published negative recommendations concerning the appropri-
ateness of the two proposed laws, while the government, through the Ministry of
Justice—when consulted—firmly opposed these amendments, voicing its concerns
about their constitutionality.
4
Figure 4.2 was developed by the author based on data gleaned from the official websites of the
Romanian Parliament (www.cdep.ro and www.senat.ro).
126 4 Romania’s Justice and Anti-Corruption Reform: A Stubborn Divergence...
A further draft-law presented in Parliament in 2017 added to the legislative
confusion on the subject of sanctioning elected officials embroiled in conflicts of
interest: a third proposal concerning the amendment of the same Art. 25 of Law
176/2010 was submitted to Parliament for deliberation while the other two proposals
were still pending before the Senate. This proposal differed in the subject of
legislation from the other two: it introduced an exception for the imposition of
sanctions under Art. 25. It also differed significantly in the pace with which it was
dealt with in Parliament. Unlike the other two proposals, which had a lengthy and
tiresome procedural journey that occupied lawmakers for more than five years, this
more recent proposal was rushed through both parliamentary chambers in less than a
month (between 21 November and 18 December 2017). However, the speedy
adoption of this law was delayed for six months at the promulgation stage, when
the draft-law went through two constitutionality checks and a presidential review. As
this proposed revision of Article 25 was likely to suspend the application of
sanctions in hundreds of cases dealt with by the ANI, the president filed a request
in March 2018 for its re-examination in Parliament, questioning the reasonableness
of the law in relation to the social interest it serves and to Romania’s commitments
under the CVM. The President interpreted the draft proposal as “an act of clemency
aimed only to cut short the sentences of several Members of Parliament found in
Fig. 4.2 The development of the Draft-laws Amending Art. 25(2) of Law 176/2010
4.1 The Development of Integrity Laws and the Corresponding Level... 127
conflict of interest”,
5
an opinion not shared however by the Parliament, who rejected
the re-examination request and proceeded to the final adoption of the draft that
became Law 125/2018 in June.
At about the same time, in December 2017, yet another proposal aimed at revising
Art. 25 of Law 176/2010 was presented to Parliament. It discussed the introduction,
under Art. 25 (5), of a prescription period applicable to claims of incompatibility or
conflict of interest. The proposal’s passage through Parliament was no smoother than
in the other cases: the government firmly opposed the proposal in its official opinion;
the lower parliamentary chamber rejected the proposal, being unable to gather the
minimum of favourable votes required for its acceptance; while the Constitutional
Court declared the proposal unconstitutional emphasizing the inadequate legislative
technique used. A revised version was reintroduced and adopted in the lower
chamber in December 2018, followed by an adoption in the Senate and the promul-
gation of Law 54/2019 in March 2019. It supplemented the law (125/2018) adopted
just few months before to amend Art. 25 of Law 176/2010, while the other two
amendment proposals on the same article were still pending in Parliament. Cur-
rently, the functioning of the ANI is regulated by no less than six different laws, two
of which only clarify the details of Art. 25 of one of them.
As the above analysis shows, the procedural path reformers took in establishing
the legislative framework for integrity in Romania reveals practices that undermine
the very purpose of the legislation. On procedural grounds alone, the numerous
changes to the legislation establishing the ANI not only repeatedly disrupted the
functioning of the agency, but also established an undesirable legislative parallelism
by maintaining in force several legal provisions concerning the same object of
legislation. This generated uncertainty about how the legislation was to be applied
and made it possible for the courts to apply these provisions however they saw fit.
As regards the substance of the ANI legislation, the changes adopted over time
followed a pattern of diluting already existing provisions. This calls into question the
intentions of the legislators who not only failed to outlaw corrupt behaviour, but
instead opened up new opportunities for abuse. The two 2014 proposals to amend
Article 25 (2) of Law 176/2010 offer a clear illustration of this tendency. Although
neither of these two proposals has been passed into law, they still provide evidence
of the reluctance of the Romanian political elite to enact stringent integrity
legislation.
Under Article 25 of Law 176/2010, an elected representative with a proven
incompatibility or conflict of interest will be debarred from occupying the same
office for a period of three years after termination of the mandate.
6
In its Decision
418 of 2014, the Romanian Constitutional Court urged the Parliament to clarify this
provision, suggesting it be rephrased to make it plain that elected officials were
debarred from occupying any office for a period of three years. The Constitutional
5
Source: The Re-evaluation Request, available at http://www.cdep.ro/proiecte/2017/400/80/2/
cerererx482.pdf, accessed 15 March 2018.
6
Parliament of Romania (2010: 16).
128 4 Romania’s Justice and Anti-Corruption Reform: A Stubborn Divergence...
Court found that only such a phrasing would be in accord with the spirit of a law
aimed at enhancing the integrity of public officials, and at effectively sanctioning
their failure or refusal to comply.
7
It was in response to this that Romanian law-
makers introduced to Parliament the two legislative proposals (Pl-x nr. 309/2015 and
Pl-x nr. 310/2015)
8
in a clear attempt to override the decision of the Constitutional
Court. By virtue of Article 25 (2), as amended by proposal 309/2015, elected
representatives found to be involved in a proven incompatibility or conflict of
interest are to be debarred from occupying the specificoffice held at the moment
when the transgression was established. The other proposal, 310/2015, resolves the
issue in a slightly different manner: it provides for mayors, deputy mayors and local
counsellors to be debarred from occupying any of these three positions, for regional
counsellors to be debarred from occupying a similar office, and for members of the
Senate or the Chamber of Deputies not to stand for election as parliamentarians for a
period of three years. Any of these amendments of Article 25 (2), had they been
adopted in the form proposed, would have removed altogether the restriction to
occupy an elected office for all representatives found incompatible or in conflict of
interest. At best, they would have increased the number of local or regional politi-
cians aiming for a seat in national Parliament and conversely, the number of
parliamentarians who entered the competition for local or regional elections. Unde-
niably, the two draft proposals clarified the effects and application of Article
25 (2) of Law 176/2010, yet not in the sense advised by the Constitutional Court,
and certainly not in compliance with the EU’s requirements under the Cooperation
and Verification Mechanism.
This attempt at de-Europeanization is not a singular incident. Various
de-Europeanizing provisions proposed after Romania’s accession to the EU were
not eventually rejected; they were adopted and produced significant effects, not least
of which was an increasing tolerance to violations of public integrity. As the
following analysis shows, most of the amendments passed into law after January
2007 to regulate the functioning of the National Integrity Agency significantly
reduced the power of the agency to issue mandatory decisions, the time frame within
which the ANI could conduct verifications of assets was diminished, and sanctions,
already far from being dissuasive, were lowered even further. When analysed in
terms of the standards set by the European Commission, the repeated attempts to
amend the ANI legal framework clearly reveals a post-accession setback in terms of
controlling corruption.
The initial legislative framework setting up the National Integrity Agency was
drafted by the Ministry of Justice in July 2006 and adopted, albeit in a modified
form, in May 2007, becoming Law 144/2007. This law provided in its Art. 4 (3)
9
for
7
Romanian Constitutional Court (2014).
8
Available on the website of the Chamber of Deputies (www.cdep.ro) under http://www.cdep.ro/
pls/proiecte/upl_pck2015.proiect?cam¼2&idp¼14829 and http://www.cdep.ro/pls/proiecte/upl_
pck2015.proiect?cam¼2&idp¼14827, accessed 15 November 2021.
9
Parliament of Romania (2007). Law 144/2007, Art. 4 (3).
4.1 The Development of Integrity Laws and the Corresponding Level... 129
integrity inspectors to notify the court on the basis of available evidence whenever
they filed a notable discrepancy (that cannot be reasonably justified) between the
actual and the declared wealth of a Romanian public official. According to the same
article, the court would in this case be requested to order the confiscation of these
unaccounted-for assets. In April 2010, the Romanian Constitutional Court declared
the article unconstitutional, quite reasonably arguing that the autonomous National
Integrity Agency exercised quasi-judicial powers and its integrity inspectors carried
out certain activities which were jurisdictional in nature. Consequently, following
this ruling, a new law amending Law 144/2007 was to be passed that would
substantially limit ANI’s ability to control and seek the confiscation of unjustified
assets and reduce its role to the analysis of assets and wealth statements and the
issuing and publishing of reports.
10
More interesting is the fact that the new law, 176/2010, also included a series of
unnecessary amendments regarding issues unrelated to the abovementioned Consti-
tutional Court decision, measures which significantly reduced the effectiveness of
the ANI’s legal framework. To take just one example, the new law established a
rather short prescription period for the completion of the ANI’s verifications, laying
down that the agency’s investigations be completed within three years after the end
of a public official’s mandate. By comparison, in the government’s initial 2006
proposal, the period in which the ANI was allowed to investigate public officials’
wealth was five years after the termination of their mandate. This provision, as
proposed by the government, was completely repealed in 2007, then reintroduced
later by Law 176/2010 with the period of prescription reduced to only one year.
Eventually, the prescription period was extended again to three years, an amendment
adopted
11
at the specific request of the President of Romania. Notwithstanding this
later extension of the prescription period to three years, a significant number of cases
eligible under the old law—containing no provision in this respect—had to be closed
as a result of the amendment introduced by Law 176/2010. As the European
Commission justly remarked, the amendment of Article 11 “has created a de facto
amnesty in certain cases for unjustified wealth and other integrity violations.”
12
The adoption of Law 176/2010 not only diminished the investigative powers of
the Agency, but also significantly reduced the sanctions applied for public officials
who failed to respect the obligations imposed on them by the integrity legislation.
Such a development is not justified in a context of widespread high-level corruption,
and even less justified in a context in which most sanctions were already under the
previous law too low for effective deterrence.
The submission of knowingly false wealth statements by Romanian public
officials was initially regarded in Law 144/2007 as a criminal offence to be punished
in accordance with criminal law.
13
Through the amendment introduced by the
10
Parliament of Romania (2010). Law 176/2010.
11
Parliament of Romania (2010). Law 176/2010, Art. 11 (1).
12
European Commission (2011c: 10).
13
Parliament of Romania (2007). Law 144/2007, Art. 50 (1) as adopted by the Senate of Romania.
130 4 Romania’s Justice and Anti-Corruption Reform: A Stubborn Divergence...
Parliament in 2010, the submission of knowingly false wealth statements turned
from being considered a criminal offence to being considered no offence at all: the
new provision allowed the dignitaries to revise their wealth statements at any time
before the agency takes action against them. As a matter of course, any modifications
made to wealth statements even after their submission would have been recognized
as lawful.
14
In effect, such an amendment would have rendered void the submission
of wealth statements and undermined its effectiveness as an instrument for improv-
ing transparency, and would have severely interfered with the activity of the agency
altogether. This provision, however, did not take effect due to the requested
re-evaluation filed by the President of Romania.
While the submission of knowingly false wealth statements was eventually
reintroduced as a violation sanctioned in accordance with the criminal code, the
overall sanctioning regime under the reformed integrity framework has been weak-
ened considerably, with reduced fines against officials who fail to make public their
wealth and interests, or who submit their statements at a later time. Under Law
144/2007, the failure to submit wealth and interest statements would attract sanctions
between 100 and 500 Lei (between approx. 20 and 100 Euro); these sanction limits,
already far from dissuasive, were lowered in 2010 by the Parliament to a minimum
of 50 Lei (approx.10 Euro) and a maximum of 10,000 Lei (approx. 2020 Euro) and
subsequently reduced to between 50 and 2000 Lei (approx. 10 to 404 Euro). Even
though the maximum sanctions were eventually increased to a 400 Euro fine, it is far
more relevant that minimum sanctions were lowered. In fact, it is the minimum
sanction that counts, as practice shows that it is the minimum sanctions that are
usually applied in such cases.
Moreover, by virtue of the more recently adopted Law 125/2018 an exception has
been introduced, rendering void all the sanctions imposed against Members of
Parliament found in conflict of interest during their mandates in the period between
2007 and 2013. The justification for introducing this exception was that the legal
framework regulating the Statute of Deputies and Senators did not provide until
2013 for sanctions applicable for Members of Parliament in cases of administrative
conflicts of interest. However, this justification falls short of explaining why the
Parliament, while regulating public integrity and the sanctioning regime applied to
its own members, failed to harmonize the Statute of Deputies and Senators with Law
144/2007, through which sanctions were introduced for all dignitaries (including
Members of Parliament) found in conflict of interest.
It is worth noting that the failure to apply disciplinary sanctions by a public
institution, should a case of incompatibility arise, is currently subject to a fine even
lower than that initially provided under Law 144/2007 (between approx. 20 and
100 Euro) and much lower than the fine suggested by the government in its 2010
legislative proposal (between approx. 202 and 2020 Euro). After Law 144/2007 was
declared unconstitutional in April 2010, the draft proposed by the government
14
Parliament of Romania, Senate of Romania (2010) Draft bill adopted by the Senate of Romania
on 12 May 2010, Art. 28 (2).
4.1 The Development of Integrity Laws and the Corresponding Level... 131
included a fine between 1000 and 10,000 Lei (between approx. 202 and 2020 Euro),
which was first completely eliminated, and then subsequently reintroduced with
fines ranging from 50 to 2000 Lei (from approx. 10 to 404 Euro). The level of
sanctioning in this particular case is a highly relevant indicator for the extent to
which a certain abusive practice is regarded as customary or less severe in nature.
Integrity-related sanctions in Romania, far from dissuasive under the current legis-
lation, indicate a high degree of tolerance with regard to such offences. Providing for
such low fines against the violation of integrity laws sends out a very feeble message
of normative disapproval of this type of abusive behaviour, damaging the credibility
of the entire legislative framework and its ambition to improve public integrity while
curbing corruption.
Also of particular interest in the present context is the clause proposing the
re-establishment of the so-called Wealth Investigation Commissions. Such Wealth
Investigation Commissions, created at the level of appeal courts, previously served
the purpose of investigating cases of unjustified wealth. In 2007, with the establish-
ment of the National Integrity Agency, this responsibility was subsequently trans-
ferred to the agency, as stipulated by Law 144/2007. After Law 144/2007 was
declared unconstitutional in 2010, the lower chamber of the Parliament decided to
re-establish the Commissions, regardless of the fact that this was neither a request
advanced by the Constitutional Court nor a recommendation included in the gov-
ernment’s initial draft proposal for Law 176/2010. Contrary to this decision of the
lower parliamentary chamber, the higher chamber rejected the amendment and
eliminated the article reinstituting the Commissions. Shortly afterwards, however,
following an explicit request of the President of Romania, the Wealth Investigation
Commissions were reintroduced in Law 176/2010, acting today as an extra layer of
jurisdiction between the ANI and the actual courts.
15
The CVM Monitoring Reports
for Romania pointed out in 2011 that these Wealth Investigation Commissions serve
as an unnecessary intermediary body between the ANI and the trial courts, since they
rule on cases transmitted by the ANI on the basis of the same evidential standards as
the courts themselves.
16
Still, the provision remained in force, and the Wealth
Investigation Commissions remained active at the level of the appeal courts, use-
lessly delaying the judicial decision-making process by duplicating the activities of
the trial courts.
Assessed against the CVM criteria, all the above examples demonstrate a clear
post-accession legislative setback. While these articles cover only a small area of the
integrity legislative framework, they form part of the hard core of provisions which
are of fundamental importance to the state’s Europeanization and post-accession
compliance in the field of integrity and anti-corruption reform. Note that “Bench-
mark two”of the Commission’s Mechanism for Cooperation and Verification
recommends that Romania should establish an integrity agency “with
15
Parliament of Romania, Senate of Romania (2010) Draft bill adopted by the Senate of Romania
on 12 May 2010, Art. 35–2.
16
European Commission (2011b: 6).
132 4 Romania’s Justice and Anti-Corruption Reform: A Stubborn Divergence...
responsibilities for verifying assets, incompatibilities and potential conflicts of inter-
est, and for issuing mandatory decisions on the basis of which dissuasive sanctions
can be taken”
17
(emphasis added). As the above accounts have shown, instead of
bringing Romania more in line with these criteria, repeated attempts were made after
January 2007 to severely interfere with the activity of the agency, diminishing its
responsibilities and weakening its tools for control. More often than not, the mea-
sures taken disregarded the recommendations expressed by the European Commis-
sion in its regular reports. Since January 2007, the European Commission has
published no less than 20 reports taking stock of the progress made, addressing
the remaining shortcomings and underlining the steps to be taken by Romania in
refining and improving its integrity legislation. Without exception, all of these
reports raised concerns with regard to the responsibility and accountability of
Romania’s political elite, and its capacity to ensure a transparent, predictable and
irreversible legislative process. Regardless, in what concerns Romania’s legal frame-
work for public integrity, legislative changes were adopted that prevented the ANI
from proceeding against members of the political elite (Art. 8, Art. 11 and Art. 17 of
Law 176/2010), delayed judicial decision-making (Art. 35 of Law 176/2010) and
diminished or suspended altogether the sanctions against officials who fail to comply
with the provisions of the law (Art. 25, Art. 28 and Art. 29 of Law 176/2010, as well
as Law 125/2018). Introducing amendments to these key articles necessarily led to
changes in numerous other provisions in force. The examples detailed above are,
however, enough to prove the instability and reversibility of Romania’s anti-
corruption legislation. What seem like simple changes in the wording of a small
number of provisions in a small number of laws actually goes to the heart of this area
of reform; the amendments described above are crucial for Romania’s framework for
public integrity, and overall for the state’s approach to combatting corruption. It is no
coincidence that these very articles of law are the most extensively debated, repeat-
edly amended and curtailed.
18
Casting an overall glance at Romania’s public integrity legislation, we find a long
sequence of attempts to suppress or dilute key provisions. Some of these attempts at
weakening the legislative framework were successful, making it through the
law-making process; others were either stalled, tempered or rejected by the inter-
vention of one or another decision-making body. A long-term analysis shows
however that it is only a matter of time until such failed attempts at reform reversal
make their way back into the Parliament and eventually into the legislation.
17
Commission of the European Communities (2006).
18
The numbering of the articles making up ANI Law was completely revised with every amend-
ment of the law. This chapter makes reference to the same articles of law: Art. 2 of 144/2007 (now
Art. 8 (1) of 176/2010); Art. 20 (2) of 144/2007 (now Art. 11 (1) of 176/2010); Art. 44 (1) of
144/2007 (now Art. 17 (1) of 176/2010); Art. 47 (2) of 144/2007 (now Art. 25 (2) of 176/2010); Art.
50 of 144/2007 (now Art. 28 of 176/2010); Art. 52 of 144/2007 (now Art. 29 (1) of 176/2010); Art.
53 (1) of 144/2007 (now Art. 29 (3) of 176/2010); and Art. 61 (4) of 144/2007 (now Art. 35 of
176/2010).
4.1 The Development of Integrity Laws and the Corresponding Level... 133
In sum, and weighing up all the key legislative developments that produced
detrimental effects for the state’s ability to control corruption, it can be concluded
that Romania reversed the positive steps taken towards Europeanization in the field
of public integrity. In Fig. 4.3
19
reform reversal is measured for each of the articles of
law against their previously achieved level of Europeanization. In the government’s
initial proposal of 2006, these provisions were mostly in line with EU requirements,
while the subsequent modifications of the law (through the adoption of Law
144/2007, Law 176/2010 and Law 125 of 2018) marked a “negative”development.
Articles were either deprived of their initial legal significance, or eliminated alto-
gether, which severely affected the agency’s ability to achieve its goals and rendered
Romania’s public integrity legislation largely ineffective. Instances of
de-Europeanization can be observed not only by comparing the final (promulgated
and binding) versions of the laws (as in Fig. 4.3), but also by studying the different
draft versions as amended and adopted by the two parliamentary chambers in the
process of creating and revising the legal texts. Law 176/2010 alone went through at
least seven formally adopted versions, with notable differences in the degree and
direction of change with every draft that was voted upon. Tracing
de-Europeanization in such detail, however revealing, falls beyond the scope of
this book.
Fig. 4.3 The de-Europeanization of integrity legislation
19
Figure 4.3 was developed by the author based on the developments of the most relevant pro-
visions of ANI legislation.
134 4 Romania’s Justice and Anti-Corruption Reform: A Stubborn Divergence...
On the whole—considering both substantial and procedural aspects—Romania’s
legal framework for public integrity qualifies as a case of doubtful legislative
performance, with its lack of compliance to, and deviation from, the standards set
forth for the member state by the EU through its post-accession conditionality. The
various provisions debated by the two parliamentary chambers, their apparent
Europeanization followed by its reversal (sometimes with total disregard for the
Commission’s recommendations), cast serious doubt on the willingness of
Romania’s political elite to carry out sound reforms in the area of public integrity
and overall in the field of justice and anti-corruption. The post-accession develop-
ments described here not only represent a corruption of law in its ideal essence, but
are also highly illustrative of the way in which members of the political elite abuse
public power in their pursuit of personal interests.
4.2 The Elite’s Pursuit of Personal Interests
The numerous changes brought to the integrity legislation to diminish the power of
the ANI were initiated by various political decision-makers: the Senate had almost
reached unanimity in adopting the clause allowing public officials to correct their
wealth statements at any time after their submission
20
; likewise, the lower chamber
of Parliament proposed and voted in favour of reducing the prescription period and
the sanctions available under ANI laws
21
; the President of Romania delayed the
promulgation of Law 176/2010, returning it to Parliament with the specific request to
re-establish the abovementioned Wealth Investigation Commissions, which are a
futile additional level of jurisdiction between the agency and the courts; while at the
same time, the government amended the legislation through several Government
Emergency Ordinances in an attempt to avoid the long cycle of law-adoption, while
in fact it only increased the burden on the legislative process. This approach to
law-making leads to the conclusion that the members of the Romanian political elite,
irrespective of the forum of decision-making in which they are active, lack a
commitment to genuine reform. They not only fail to observe the due procedures,
but also transcend the limits of their legislative power by behaving opportunistically;
they often introduce measures that disregard both European requests and societal
needs. In this section, we will pause to examine the reasons behind the elite’s failure
to foster a solid integrity legislation. The purpose here is to identify the interests that
the members of the political elite pursued in supporting one legislative amendment
or another by analysing in detail the mechanism of law-making, both the procedures
20
The proposed amendment received 72 votes in favour, 9 votes against and 8 abstentions in
Senate’s plenary session of 12.05.2010.
21
For the vote in the Chamber of Deputies, the video-recording of the plenary session provides no
detailed information with regard to the votes cast for each individual provision. However, it is worth
noting that the draft-law, with all its amendments, was adopted on 28.04.2010 in the plenary session
of the Chamber of Deputies with 183 votes in favour, no votes against and 27 abstentions.
4.2 The Elite’s Pursuit of Personal Interests 135
employed as well as the debates and the voting patterns surrounding the adoption of
Romania’s legislative framework for integrity.
After the state’s accession to the EU, the early enthusiasm of the Romanian
political elite to establish a solid legal framework for integrity developed into a lack
of interest in getting meaningful reform passed. In 2007, 95% of Romanians
considered corruption in their country to be a major problem,
22
a percentage
which has remained high until today (93% in 2009 and 2014, 80% in 2017 and
83% in 2020)
23
; in 2009, no less than 72% of the population regarded court
sentences in the context of corruption cases to be too light,
24
while just as many
agreed that high-level corruption cases are not pursued sufficiently (with percentages
ranging from 73% in 2014 to 77% in 2017, and 71% in 2020).
25
In 2019 a
consultative referendum as to whether to prohibit amnesty and pardons for corrup-
tion offences passed by a wide margin (more than 80% of the votes), a reflection of
society’s low tolerance for corrupt behaviour. In 2020, across all EU member states
in Romania was observed the highest percentage (64%) of people declaring them-
selves to be personally affected by corruption in their daily life.
26
In response to
these constant concerns, Romanian political representatives have been displaying a
general reluctance to undertake sound and effective anti-corruption reforms
since 2007.
The adoption of the two emergency ordinances amending Law 144/2007
27
can
serve as a good example in this respect. The way in which the government applied
modifications to the existing ANI Law so soon after its promulgation is illustrative of
the constant practice of the members of the cabinet to legislate by means of
Government Emergency Ordinances, even though there is often no emergency that
requires it. As discussed above, the government of Romania enacts laws in this
manner too often, which avoids the long and burdensome legislative proceedings in
Parliament, but at the same time significantly destabilizes the law-making process.
Indeed, an undesirable legislative ambiguity resulted from the adoption of the two
Government Emergency Ordinances passed in 2007 that were aimed at amending
the recently adopted law (144/2007). These government ordinances required the
confirmation of Parliament, which granted its approval by adopting new laws
(94/2008 and 105/2008), and thus allowed several legislative acts in force to have
the same object of legislation. This practice provides a clear example of the misuse
of democratic institutions for proceedings that should be extraordinary, and reveals a
lack of domestic political will to legislate in a clear and straightforward manner that
allows enough time for debates and public consultation.
22
European Commission (2008: 4).
23
European Commission (2009: 9, 2014b: 20, 2017d: 17); (2020a: 21).
24
European Commission (2009: 44).
25
European Commission (2014b: 65, 2017d: 61); (2020a: 75).
26
European Commission (2020a: 33).
27
The Government Emergency Ordinance 49 of 30 May 2007 and the Government Emergency
Ordinance 138 of 6 December 2007.
136 4 Romania’s Justice and Anti-Corruption Reform: A Stubborn Divergence...
It was not only in the case of these Government Emergency Ordinances that a
fast-track procedure was used to adopt and amend the integrity legislation. Almost
all integrity laws mentioned above were adopted without careful consideration via a
parliamentary expeditious procedure. The initiator of a bill may request a fast-track
procedure when advancing the draft proposal to Parliament, which imposes much
tighter deadlines for the submission of written amendments by the members of
Parliament. Moreover, at the stage of general debate in plenum, each parliamentary
group is, by virtue of this procedure, entitled to only one intervention, with the length
of each representative’s speech severely limited.
As we saw in the previous section, the adoption of ANI Law and its subsequent
modifications was a long and cumbersome process, and yet almost all the amend-
ments to this law were adopted under an expeditious procedure, at the specific
request of those who initiated the legislative amendments: in the case of Law
176/2010 at the request of the government, and in the case of Law 125/2018 at the
request of a single MP. As a consequence, modifying laws through expeditious
procedures often led to situations in which the members of one or the other
parliamentary chamber did not have sufficient time for debate or to submit amend-
ments. During plenary sessions dedicated to ANI Law 176/2010, concerns were
raised regarding the lack of accuracy and relevance of a legislative act passed under
such severe time pressure.
28
Nevertheless, despite such concerns, the plenary ses-
sions were held as scheduled, and as a result decisions were taken in a hasty and
ill-considered manner. Indeed, the debates took place and the votes were cast
irrespective of whether all the members of the parliamentary chamber had even
had sufficient time to read the draft proposal and submit amendments.
To demonstrate this point, it is sufficient to mention that the government’s
proposal of a bill amending Law 144/2007 in accordance with the requirements of
the Constitutional Court had been submitted to the lower chamber of Parliament
even before the decision of the Constitutional Court was published in the Official
Journal. Nevertheless, the legislative proposal prepared by the Ministry of Justice
reached the Chamber of Deputies on 27 April 2010, while the deadline for submit-
ting amendments to this draft by members of Parliament was no later than the
following morning, on 28 April 2010. In a similar fashion, a newly amended draft
28
Intervention of a PSD MP in the Chamber of Deputies in: Parliament of Romania, Chamber of
Deputies, The Committee for Legal Matters, Discipline, and Immunities (2010a), Video Recording
of the Meeting held on April 28th 2010., minute 00:02:40; Intervention of a PSD MP in the
Chamber of Deputies in: Parliament of Romania, Chamber of Deputies (2010a), ‘Plenary Session
of the Chamber of Deputies. Minutes of the Meeting held on April 28th 2010’http://www.cdep.ro/
pls/steno/steno.stenograma?ids¼6821&idm¼16, accessed 2 Mar 2018.
Intervention of a PSD MP in the Senate in: Parliament of Romania, Senate of Romania (2010),
‘Plenary Session of the Senate. Minutes of the Meeting held on May 12th 2010’https://www.senat.
ro/PAGINI/Stenograme/Stenograme2010/10.05.12.PDF, accessed 2 Mar 2018.: 85–91; Interven-
tion of an UDMR MP in the Chamber of Deputies in: Parliament of Romania, Chamber of Deputies
(2010b), ‘Plenary Session of the Chamber of Deputies. Minutes of the Meeting held on June 22nd
2010’http://www.cdep.ro/pls/steno/steno.stenograma?ids¼6860&idl¼1, accessed 2 Mar 2018.
4.2 The Elite’s Pursuit of Personal Interests 137
of the same law was discussed by the Committee for Legal Matters, Discipline, and
Immunities in the Chamber of Deputies on 21 June 2010 and spontaneously added to
the agenda of the plenum on 22 June 2010. As a result, the members of the Chamber
of Deputies voted on the proposals to alter the law without being able to refer to the
report, which included amendments approved by the Committee for Legal Matters,
Discipline, and Immunities. The same hasty procedure was followed in 2017 to
amend Article 25 of Law 176/2010; votes have been cast without a serious study of
the amendments proposed and without any plenary debate.
29
The conduct of the Romanian political elite demonstrates quite clearly its lack of
commitment to passing efficient and unobjectionable anti-corruption legislation.
While it may be quite obvious why an allegedly corrupt political elite would adopt
measures softening the anti-corruption legal framework, their interest in passing the
bills in a surprisingly hasty manner is slightly less obvious. The content analysis of
parliamentary debates, however, provides further insights into the reasons behind the
extended use of the expeditious procedure in the case of these integrity laws.
A constant subject of concern in the plenary sessions in Parliament was the
ongoing EU Cooperation and Verification Mechanism and the European Commis-
sion’s negative reports on Romania’s progress in terms of curbing corruption.
Therefore, in response to the Commission’s recommendations pertaining to the
organization and functioning of the National Integrity Agency, the Romanian
political representatives much too often and much too hastily refined the agency’s
legal framework with the clearly expressed aim of eventually bringing the Mecha-
nism of Cooperation and Verification to an end. Obviously, most of the members of
the Romanian political elite place much higher value on promptly ending the
Commission’s supervision than on implementing a thoroughly reviewed and
sound legislation. Such an approach to reform can be understood as an attempt on
the behalf of the elite to pretend to be meeting European targets for the sake of their
voters, while in fact going in the opposite direction. Indeed, the constant high level
of trust in European institutions among Romanian citizens supports the claim that the
political elite’s attempt to alleviate monitoring pressures is aimed more likely at
maximizing their electoral returns than at genuinely meeting EU standards.
According to Eurobarometer data,
30
the level of trust in the European Union
among Romanian citizens remained consistently high if compared to the EU aver-
age. In 2007, 67% of Romanians claimed to trust the EU in comparison to a 45%
European average; in 2011, the balance was 62% compared to a 41% on average in
EU 27; in 2014, 58% of Romanians affirmed trusting the Union, while the average in
Europe was very low, at 31%. More recent data of 2021 show that the majority of
Romanians (56%) trust the European Union, with an EU average at 49%, while at the
same time, by comparison, only 31% trust the Romanian Government and 29% trust
the national Parliament. In light of these numbers, it does not seem at all
29
Parliament of Romania, Chamber of Deputies (2017b).
30
Source: European Commission (2007b: 110, 2011a: 44, 2014c: 93–4, 2021b: 10, 2021c: 2).
138 4 Romania’s Justice and Anti-Corruption Reform: A Stubborn Divergence...
unreasonable to postulate that the widespread use of the expeditious procedure and
the careless amending of the already quite fragile legislative framework for integrity
was aimed to end the European monitoring as soon as possible and thereby to silence
the criticism of those who trust the EU political bodies more than the national ones.
The manner in which elites pursue only the political benefits of legislation has dire
consequences for the policy effects; the integrity reform conducted with no real
intention of following through was doomed to remain, as these examples show,
formal rather than substantive at best.
The goals of the allegedly corrupt political elite, however, extend beyond winning
elections; the frustration of the legislative purpose and the ambiguity generated with
all the amendments to the integrity laws are far from accidental. Not only did most of
the Romanian representatives allow the use of a sloppy legislative technique, which
significantly affected the quality of legislation and thus made any meaningful reform
impossible, but also—as the following pages will show—they opted for a self-
centred rather than a social-centred approach to law-making.
According to an analysis conducted by Bertelsmann Stiftung,
31
between February
2013 and January 2015, an increasing number of top politicians from all parties—
ministers, former ministers, members of Parliament or powerful local politicians—
were prosecuted and convicted for corruption. “This was done mostly in spite of—
rather than because of—the actions of the centre-left government, which most of the
time has tried to subtly undermine this trend by replacing the effective heads of
investigative agencies or weakening their institutions.”
32
According to a more recent
study, the beginning of 2017 marked a break from these more subtle ways of
hindering the fight against corruption, when “the ruling center-left coalition dropped
any pretence of having any other priority than pushing back against the rule of law
and anti-corruption institutions”.
33
Legislation has been overtly used in order to
weaken the instruments to control corruption and even in order to decriminalize the
abuse of public office.
34
If taking into account Romania’s low control of corruption
and low democracy scores,
35
the numerous allegations of grand corruption and the
significant number of cases sent to court,
36
then the strong reluctance to foster
integrity and transparency in public decision-making is hardly surprising. Thus,
the interests in blocking anti-corruption reforms are quite self-evident, while the
personal character of these interests is even more so. In fact, the Romanian political
31
Bertelsmann Stiftung (2016).
32
Bertelsmann Stiftung (2016: 24).
33
Bertelsmann Stiftung (2020: 3).
34
For more details see Bertelsmann Stiftung (2020: 10–2).
35
The Group of States against Corruption (2016: 8, 2021: 3–4); Freedom House (2021); Transpar-
ency International (2021).
36
Between 2007 and 2020, approximately 157 high public officials (among them 27 members of
cabinet, 80 Members of Parliament, 3 Members of the European Parliament, 23 state secretaries and
24 central government officials), 57 regional and local counsellors and 386 mayors were sent to
court for corruption, according to the reports published by Romania’s anti-corruption prosecution
service. Data retrieved online from http://www.pna.ro/results.xhtml, accessed 26 November 2021.
4.2 The Elite’s Pursuit of Personal Interests 139
elite aspires to amend the legislation in order to legalize acts of corruption if they are
undertaken by high-ranking public officials. One of the most extreme examples of
this took place on 10 December 2013, when “the Chamber of Deputies adopted two
amendments to the Criminal Code (...) through which all appointed or elected
officials are no longer criminally liable for corruption”.
37
More recently, in January
2017 a Government Emergency Ordinance was adopted to decriminalize corruption
offences in which the damage caused was less than 45,000 Euro.
38
The changes brought to the legal framework for integrity followed the same
pattern: they were enacted primarily for the benefit of those who initiated them. The
proposal to introduce a shorter prescription period, thus limiting the period in which
the National Integrity Agency is allowed to take action against a former dignitary,
undeniably benefits those public officials who face or may face charges under the
integrity laws. Similarly, the clause allowing for the correction of wealth statements
at any time after their submission would have allowed public officials to overlook
certain information while publishing their wealth statements, thus rendering void the
entire activity of the agency. Such an amendment would certainly serve the interests
of those who are committed to an at best opaque kind of political transparency. In the
same way, the diminished sanctions against public officials failing to submit their
wealth statements inevitably put less pressure on them to comply with the require-
ments of the law.
In simpler terms, if only taking into account the high level of grand corruption and
the lack of integrity among members of the elite in Romania, it seems quite self-
evident who would benefit from a softening of integrity legislation. According to the
most recent activity report published by the ANI, as of December 2020, 46 national
representatives and 945 local representatives were found guilty of incompatibility,
57 national representatives and 369 local representatives were found guilty of an
administrative conflict of interest and 21 members of Parliament and 14 local
representatives received prison sentences based on ANI reports. In the same period,
between September 2010 when Law 176/2010 was adopted and December 2020,
7722 sanctions were applied by the agency, the majority of which (more than 92%)
were for failure to submit wealth declarations in due term.
39
An assessment of the arguments advanced in Parliament to justify the amend-
ments proposed to the integrity legislation provides even further proof of the
instrumental use of the democratic framework by the Romanian political elite.
While arguing in favour of a certain legislative provision during parliamentary
debates, various members of the Romanian Parliament have made clear reference
to personal interests. For instance, in May 2010, a senator of the Social Democratic
Party (PSD) declared during a plenary session of the Senate to cast a vote in favour
for the adoption of Law 176/2010 despite the effects that the implementation of the
bill would have on the ANI’s effectiveness; the stated reason for this choice was to
37
Transparency International Romania (2013).
38
Bertelsmann Stiftung (2020: 11).
39
Agenția Naționalăde Integritate (2020: 4–9).
140 4 Romania’s Justice and Anti-Corruption Reform: A Stubborn Divergence...
allow the ANI to immediately resume its activity in order to facilitate the agency’s
investigations in a case regarding the Senator so it would finally reach court and
eventually be settled.
40
The following month, in June 2010 a liberal-democratic
(PDL) member of the Chamber of Deputies proposed an amendment to delete certain
data from wealth statements, justifying this amendment with the argument that the
publication of some of the data led to personal inconveniences.
41
Similarly, a
member of the Conservative Party (PC), while arguing in favour of granting public
officials the possibility to correct their wealth statements at any time before the
agency takes action against them, referred to a situation in which he himself forgot to
remove from his wealth statement a property he had sold long before.
42
Another
argument brought forth by a member of the Liberal Democratic Party (PDL) in
favour of diminishing sanctions against public officials who fail to publish their
wealth and interests statements was that higher sanctions would discourage local
counsellors in his region from further assuming responsibility as they would be
unable to pay such fine, and this would certainly cause difficulties for him, as
president of the party’s regional chapter, in finding suitable candidates for the
local council.
43
While these are by no means singular cases of Members of Parliament who are
driven by opportunism in their approach to legislative reform, such anecdotal
evidence alone cannot prove the validity of this book’s main claim. More relevant
in this respect is the legislators’voting pattern, which shows a high degree of
tolerance for such rhetoric. Even though most Romanian political representatives
would agree, if asked, that personal inconvenience is not a valid reason to support or
reject derogations or legislative amendments, nevertheless, when some members of
the parliament hindered reform in pursuit of personal interests the majority of
members in the same parliament tacitly consented. Indeed, despite the debates
surrounding some of the de-Europeanizing measures proposed, during the voting
of the bills in plenum, most of the members of the one or the other chamber of
parliament were to a large extent inclined to agree with the majority. Therefore, the
laws establishing Romania’s framework for public integrity (Law 144/2007 and Law
176/2010) were in each of their successive forms adopted with a majority of more
than 90% of the votes. An exception in this regard are Law 125/2018, adopted with
65% of the cast votes in favour in the lower chamber and with 67% in the Senate, and
Law 54/2019 adopted with 92% of the cast votes in favour in the lower chamber and
76% in the Senate.
40
Parliament of Romania, Senate of Romania (2010), ‘Plenary Session of the Senate. Minutes of the
Meeting held on May 12th 2010’https://www.senat.ro/PAGINI/Stenograme/Stenograme2010/10.0
5.12.PDF, accessed 2 Mar 2018: 90.
41
Parliament of Romania, Chamber of Deputies, The Committee for Legal Matters, Discipline, and
Immunities (2010b), Video Recording of the Meeting held on June 21st 2010., minute 00:23:22.
42
Parliament of Romania, Chamber of Deputies, The Committee for Legal Matters, Discipline, and
Immunities (2010a), Video Recording of the Meeting held on April 28th 2010., minute 03:18:21.
43
Parliament of Romania, Chamber of Deputies, The Committee for Legal Matters, Discipline, and
Immunities (2010a), Video Recording of the Meeting held on April 28th 2010., minute 04:40:42.
4.2 The Elite’s Pursuit of Personal Interests 141
Moreover, it is also important to point out here that a positive vote was cast in
2007 by both chambers of Parliament on a bill (144/2007) known already at that time
to be in breach of the Romanian Constitution.
44
The unconstitutionality of this law
was addressed in plenum, but it did not prevent the Parliament from adopting it with
251 votes in favour and 5 against in the Chamber of Deputies, and 109 votes in
favour, and no votes against in the Senate. A few years later, the bill was brought for
review before the Constitutional Court, and as a consequence, in April 2010, the law
was declared unconstitutional. It was returned to the Parliament for revision, which
caused five months of legislative standstill that prevented the agency from
performing its responsibilities. Can this legislative behaviour be regarded in any
circumstance as a pursuit of the common good? Can the adoption of a law known to
fall short of meeting constitutional standards be reasonably justified? Were political
decision-makers in their actions representing any interests but their own? As we will
see in the next section, democracy-promoting civil society groups and organizations
who voiced their disapproval of this legislative behaviour, were however silenced by
further legislative amendments aimed at curtailing their freedom to criticize political
parties on the one hand and distracting them through overly burdensome reporting
requirements on the other.
4.3 The Weak Impact of Civil Society
The above analysis appears to suggest that any opportunistic political elite in a
democratic system could change the course of legislative reform in an effort to
extract personal profit. By this logic, the more corrupt and self-interested the ruling
political elite, the greater the impediments they would pose to genuine anti-
corruption reform. The relationship between the elite’s self-interest and the course
of reform is, however, more complex than such a simple causation. In particular, the
strength of civil society plays a very important role, correlating highly with the
elite’s pursuit of personal interests: societal constraints are most likely to prevent an
instrumental use of the democratic framework by political decision-makers. The
existence of a strong civil society with adequate control capacities is thus an essential
condition for the implementation of a sound and stable reform. Civil society plays a
key role as a mediator between representatives and the represented; it informs the
latter about the decisions taken by the former, and the former about the interests of
the latter, but more importantly, it mobilizes the represented to protect their interests
by promoting active participation, political engagement and the building of political
pressure. Conversely, in the absence of a strong civil society that would act as an
effective watchdog, a powerful self-interested political elite can indeed impede
reform and put personal profits before the public good.
44
Parliament of Romania, Chamber of Deputies, The Committee for Legal Matters, Discipline, and
Immunities (2010a), Video Recording of the Meeting held on April 28th 2010., minute 00:22:54.
142 4 Romania’s Justice and Anti-Corruption Reform: A Stubborn Divergence...
Civil society is not absent in Romania. As of 2020, 114,548 civil society
organizations (CSOs) were registered in Romania and included in the National
Non-Governmental Organization Register, marking an increase of 6774 since
December 2018.
45
The estimation holds however that only half of these organiza-
tions registered are in fact active. Moreover, at least since January 2007, civil society
in Romania seems to be rather powerless in terms of its control function and quite
vulnerable in its relation to the political elite. Its sustainability has remained an issue
in the post-accession period (see Fig. 4.4
46
), primarily due to the weak financial
setup of CSOs in Romania, which has declined after the state’s accession to the
EU. In 2018 and 2019, the financial viability of CSOs reached its lowest scores (4.5)
since 2002.
47
In a comprehensive study on the role played by civil society as an anti-corruption
actor in Central and Eastern Europe, Alina Mungiu-Pippidi
48
stresses the fact that in
the pre-accession period, EU conditionality combined with the existence of an
intense and effective grassroots mobilization contributed to a positive trend of
reform. Indeed, as Alina Mungiu-Pippidi rightfully points out, EU conditionality,
which is heavily dependent on domestic agents of change, can only be effective
when coupled with an active engagement in curbing corruption at the domestic
level.
49
After Romania gained full EU membership, not only did the political elite
gradually disengage from promoting anti-corruption reforms, reversing the positive
measures adopted before accession, but at the same time, civil society became less
and less able to act against the reversal of reform. One of the main reasons behind
this decline in the strength of civil society in this field was, as mentioned above, its
endangered financial situation after January 2007. Following their accession to the
Fig. 4.4 Pre- and post-accession sustainability of Romanian Civil Society Organizations
45
USAID (2020: 176).
46
The figure was adapted by the author based on the following sources: USAID (2017: 188; 2018:
170; 2019: 178; 2020: 176).
47
USAID (2015: 181; 2018: 173; 2020: 179).
48
Mungiu-Pippidi (2010).
49
Mungiu-Pippidi (2010: 25).
4.3 The Weak Impact of Civil Society 143
EU, most of the new member states faced a sharp drop in the share of funding for
anti-corruption programmes as their main sponsors, American foundations and
USAID, withdrew their support.
50
Moreover, pre-accession European Commission
funding has been subsequently replaced by Structural Funds managed by national
ministries who prove to be, at least in Romania, quite reluctant to distribute funds to
watchdog organizations monitoring their activity.
51
The Government Emergency
Ordinance (OUG 117/2010) adopted on 30 December 2010 caught most civil
society organizations off guard when it provided for them to pay taxes on a monthly
basis instead of every semester. Without consistent revenue streams, many CSOs
found themselves unable to meet such obligations, and faced bankruptcy, not least
because state delays in financial disbursements from EU Structural Funds only
exacerbated the situation.
52
Indeed, the recipients of EU Structural Funds faced a
continuously changing regulatory environment, creating confusion and administra-
tive difficulties. In addition, in 2011, the Romanian government unilaterally changed
the terms and conditions of structural funding, lowering advance funding and
extending the terms of payments, severely affecting the financial setup of most
civil society organizations.
53
During 2014–2020, the EU Structural Funds remained
the main source of foreign funding for CSOs, but the repeated delays and overly-
complex and bureaucratic procedures rendered such funding accessible only for the
larger and more experienced organizations.
54
In general, after Romania’s accession to the EU, there was a steady deterioration
marking the relationship between civil society and the political elite. The commu-
nication and cooperation between civil society organizations and political decision-
makers started to decline; the mechanisms created for consultation gradually
disappeared. The College of Consultation with Civil Society, established by the
Prime Minister’s Chancellery in 2005, was increasingly inoperative and was
dissolved in 2010.
55
In July 2013, through a Government Decision, all structures
dedicated to civil society at the level of the General Secretariat of the Prime
Minister’s Chancellery were eliminated. Beyond the Prime Minister’s Chancellery,
the few formal structures of consultation with civil society that remained were
ineffective, an illustrative case being the Social and Economic Council, which,
surprisingly enough, did not have CSO representatives in its structures.
56
An even
more blatant example is the establishment of the Ministry of Public Consultation and
Civic Dialogue through the Government Emergency Ordinance OUG 1/2017, only
to be dissolved one year later. The Government Emergency Ordinance OUG 1/2018,
adopted in January 2018, put an end to the existence of the ministry despite its merits
50
Mungiu-Pippidi (2010: 19).
51
USAID (2013: 158; 2020: 179–80).
52
USAID (2011: 157–8, 2013: 158–9).
53
USAID (2013: 158–9).
54
USAID (2018: 174; 2019: 182; 2020: 180).
55
USAID (2011: 160).
56
USAID (2014: 170).
144 4 Romania’s Justice and Anti-Corruption Reform: A Stubborn Divergence...
in consulting with civil society organizations and increasing the transparency of
decision-making processes in public authorities.
57
Particularly when legislating in areas such as justice and anti-corruption, mem-
bers of the Romanian Parliament regularly ignore their obligation to submit draft
laws to public consultation, the overall cooperation with civil society organizations
remaining limited at best. It is not at all unusual for Members of Parliament to refuse
civil society representatives their right to participate in deliberations and in the
law-making process in key areas of judicial and anti-corruption reform.
58
Conse-
quently, the relationship between civil society and the political elite is antagonistic:
the former constitutes the main source of pressure on representatives for more
transparency and integrity, while the latter accuses CSOs of acting as foreign agents
to the detriment of Romanian society (regardless of the fact that no proof has yet
been produced in support of such claims
59
).
The Romanian political elite is clearly inclined to perceive civil society active in
democracy promotion as a threat rather than a source of support and expertise. This
claim can be substantiated through further analysis of the integrity legislation
discussed above. In May 2007, an amendment to Law 144/2007 was adopted
which placed board members of the trade unions under the obligation to declare
their wealth
60
; this measure was passed by an overwhelming majority in the Senate,
regardless of the fact that the law specifically addressed dignitaries and public
officials, and not board members of the trade unions, who did not fall into this
category. This measure, of course, did not go unnoticed, and it was consequently
eliminated through a Government Emergency Ordinance later in 2007 (OUG
49/2007). Yet the provision was reintroduced by the Chamber of Deputies in 2010
by Law 176/2010, and has remained in force ever since.
61
A similar proposal tabled
in 2010 intended to oblige the members of the press
62
to disclose their financial
assets, as a measure to control “media abuses”. Even though this amendment
received little consideration in the Senate, it equally reveals the attitude of disfavour
on behalf of the Romanian political representatives towards independent media and
civil society.
Burdened by negative attitudes from political decision-makers and dependent
upon local or central government for funding, civil society in Romania is largely
inclined to perceive its watchdog role as particularly at risk in terms of future
financial security. As a consequence, many non-governmental organizations in the
field of justice and anti-corruption focus mostly on legal assistance and raising
57
USAID (2017: 193).
58
Institutul pentru Politici Publice București (2014).
59
USAID (2015: 185); USAID (2017: 196).
60
Parliament of Romania (2007). Law 144/2007, Art. 39 (1) 35.
61
Parliament of Romania (2010). Law 176/2010, Art. 1 (1) 37.
62
A PDL Senator: Parliament of Romania, Senate of Romania (2010), ‘Plenary Session of the
Senate. Minutes of the Meeting held on May 12th 2010’https://www.senat.ro/PAGINI/
Stenograme/Stenograme2010/10.05.12.PDF, accessed 2 Mar 2018.
4.3 The Weak Impact of Civil Society 145
awareness, putting less time and effort into targeting corruption directly, suggesting
legislative changes, or promoting the institutionalization of anti-corruption laws.
Some counterexamples do exist, though. The Alliance for Clean Romania has been
actively engaged in promoting transparency and integrity in public spending and in
monitoring Romania’s progress towards good governance since 2004. The Aca-
demic Society of Romania (SAR) published a “White Paper of Good Governance”
63
in January 2012, calling for clear measures for good governance, transparency and
public integrity to be adopted by all political parties (although while formally
voicing their support, none of the political parties actually complied with its recom-
mendations).
64
The Resource Center for Public Participation (CeRe) and the Raţiu
Center for Democracy monitored candidates’electoral promises via its online
platform Cineceapromis,
65
a platform that was launched on 22 March 2012, but is
no longer available. In April 2012, civil society organizations managed to block a
proposal by Parliament to change the electoral law just a few months before the
elections and without seeking broad agreement with regard to the changes pro-
posed.
66
In October 2013, after two years of effort, Coalition 52 succeeded in
convincing the Parliament to amend Law 52/2003 in a manner that would allow
for the consultation process on decisions made at the central and local levels to be
more transparent, with better standards of consultation, more reasonable time
frames, and clearer procedures
67
(although the extent to which these amendments
are actually being enforced remains questionable). In 2014, the National Anti-
Corruption Strategy was developed with the support of civil society organizations
who participated in regular meetings with the Government. The Center for Legal
Resources, involved in evaluating the strategy, provided practical recommendations
for improvement, while the Open Data Coalition (led by the Open Society Founda-
tion) co-operated with the Government to increase the amount of public data
available in user-friendly formats.
68
In 2015, the local Helsinki Committee,
APADOR-CH, voiced concerns and formulated alternative policy options in order
to diminish the number of emergency ordinances passed in circumstances lacking
actual urgency
69
(although bills continue to be passed by the Government through
emergency ordinances, thus bypassing the regular legislative process). In 2017
seventeen non-governmental organizations drew public attention to the fact that
the bill
70
proposed to modify the Government Ordinance OG 26/2000 regulating
the functioning of civil society organizations imposes a de facto censorship on civil
63
Available at https://www.romaniacurata.ro/pentru-o-romanie-curata-semnati-aici-carta-alba-a-
bunei-guvernari/, accessed 30 November 2021.
64
USAID (2013, 162).
65
USAID (2013, 162).
66
USAID (2013, 162).
67
USAID (2014, 171).
68
USAID (2015, 182).
69
USAID (2016, 196–7).
70
Parliament of Romania, Senate of Romania (2017).
146 4 Romania’s Justice and Anti-Corruption Reform: A Stubborn Divergence...
society by limiting its ability to campaign against actions of political parties or
candidates to public office.
71
This pressure did lead to the rejection of the draft law in
the Chamber of Deputies, but only 4 years later, in October 2021. Valuable additions
to the civil society landscape were the founding of the Funky Citizens
72
initiative in
2012 and the launching of The Democracy Fund
73
in 2017, grassroots initiatives that
support through voluntary donations civic engagement, promoting projects in the
fields of good governance, political education and participation, constitutional
checks and balances, and independent journalism. Also worth mentioning are
organizations such as Diaspora CivicăBerlin,
74
founded by Romanians abroad
that help to engage the diaspora in long-distance civic and political activism. By
establishing their own independent funding networks such organizations are better
positioned to support initiatives and projects that address critically and objectively
issues around power and abuse of public office.
Such examples are scarce, however. More often than not, civil society organiza-
tions deal with corruption in rather general terms, refraining from directly targeting
specific public officials or institutions.
75
The situation has worsened since 2017
when civil society organizations became even more hesitant to publicly condemn the
abuses committed by members of the elite as an effect of a legislative proposal
brought before Parliament to modify the law on associations and foundations. This
proposal,
76
if adopted, would have redefined public utility status for CSOs allowing
this status to be revoked if the organizations opposed a political party or a candidate
running for public office, and would have imposed disproportionate reporting
requirements on the non-profit sector under the threat of dissolution. The draft
proposal was tacitly adopted by the Senate in November 2017, without any debate
and no plenary vote, and it was pending in the Chamber of Deputies for almost four
years until it was finally rejected in October 2021 (with 197 votes in favour of the
rejection, 1 vote against and 99 abstentions).
A similarly demobilizing effect came from a law transposing the EU Anti-Money
Laundering Directive, Law 129/2019, proposed for debate in Parliament in June
2018 and adopted in July 2019. This law deals with non-profit and for-profit
organizations in the same manner, requiring them to declare their beneficial owner-
ship to the Ministry of Justice or risk penalties that range from fines to dissolution.
The sanctioning regime applied under this law is stricter in comparison to the above-
discussed integrity laws: the fines imposed on non-governmental organizations that
fail to report on their beneficial owners range from 200 to 2500 Lei (approx. between
40 and 505 Euro) increasing in case of further non-compliance to a range between
500 and 5000 Lei (approx. between 101 and 1010 Euro), whereas the fines imposed
71
Expert Forum (2017).
72
https://funky.ong/en/.
73
https://fondulpentrudemocratie.ro/
74
https://diasporacivica.berlin/en/home/
75
Mungiu-Pippidi (2010: 23).
76
Parliament of Romania, Senate of Romania (2017).
4.3 The Weak Impact of Civil Society 147
on public dignitaries failing to publish their wealth statements or on public institu-
tions failing to apply administrative sanctions under the integrity legislation range
between 50 and 2000 Lei (approx. between 10 and 404 Euro). Moreover, the law
fails to clarify the definition of beneficial owners as it applies to civil society
organizations, but requires the latter to declare their beneficial ownership through
notarised statements. Under these provisions, CSOs face excessive bureaucracy and
high formalization costs only to file annual reports that reiterate the information
available already in their Statutes.
77
In light of these recent legislative amendments openly and intentionally weaken-
ing the capacity and the watchdog role of civil society, it comes as no surprise that
CSOs felt pressured to shift their activities even more towards awareness-raising and
providing information. Indeed, at the moment, surprisingly high amounts of
resources are being spent on awareness-raising campaigns, despite the fact that
public awareness in Romania is probably at its highest level. In this respect, the
media has been increasingly active in criticizing the manner in which Romanian
politicians understand to make use of their positions in order to pursue individual
goals. Yet, despite the high level of awareness among the general population,
resources are still being spent on communication campaigns. At the same time,
puzzlingly enough, despite this high level of public awareness with respect to
corrupt practices, there is no corresponding engagement on the part of Romanian
society. Support from businesses in promoting good governance is crucial, but at the
same time fairly scarce. USAID, acting on the presumption that businesses would be
the first to benefit from curbing corruption, made systematic efforts to involve them
in the fight against corruption, yet with practically no success.
78
An equally important factor is the limited amount of engagement at a societal
level, with persistent political discontent and disengagement among the general
population. A study assessing the dynamics of voter turnout since 1989 conducted
by the Institute for Public Policy Romania identified a constant decline in turnout
rates, concluding that only 50% of voters in the 1990 elections were still interested in
participating in the electoral process, just 20 years after the democratic break-
through.
79
In the 2016 national parliamentary elections, voter turnout was excep-
tionally low at 39%, 2 percentage points lower than in 2012,
80
while the 2020
parliamentary elections established a new record of low turnout with only
31.8%.
81
The main factor behind this decline is the rising distrust and disenchant-
ment of the electorate with its political leaders, which results in a lack of political
engagement through voting. In recent years, Romanians have felt more inclined to
voice their concerns and hold politicians accountable for their actions through
protests. Tens of thousands of citizens frequently took to the streets in Bucharest
77
Freedom House (2021).
78
Mungiu-Pippidi (2010: 24).
79
Tătar (2011).
80
Freedom House (2017).
81
Freedom House (2021).
148 4 Romania’s Justice and Anti-Corruption Reform: A Stubborn Divergence...
and other major cities in 2017, 2018 and less intensively in 2019, triggered by
officials’abuse of office, by the legislative changes that weakened the rule of law and
by the unbearable chronic exposure to corruption. They demanded with every protest
the strengthening of the justice system, which is still yet to happen. The 10th August
2018 protests stood out for having an unprecedented participation of Romanians
living abroad, but were also marked by an unprecedented level of violence, which
was ended by the brutal intervention of the police. The staging of demonstrations to
denounce politicians’abuse of power continued, though on a smaller scale, until
2020 when the imposition of a state of emergency restricted the freedom of assembly
to a bare minimum and constrained even more the capacity of civil society to
perform its watch-dog role. The Presidential Decree 195 of 16 March 2020 adopted
in response to the COVID-19 pandemic, in its Art. 56, provides for the response time
to be doubled in cases where petitions and requests are filed under the Free Access to
Public Information Act.
In sum, the few CSOs advocating against corruption in public office are
underfunded and understaffed, forced to adapt to a continuously changing regulatory
framework and in danger of being dissolved if they do not comply with cost-
intensive and strict reporting requirements. Some initiatives have achieved their
goals, blocking controversial draft legislation, yet in many cases with only partial
or unsustainable success.
82
Often the bills blocked are only delayed, being
reintroduced by the Parliament at a later point in time. Without any significant and
permanent pressure coming from the weakened civil society or from the electorate
the members of the Romanian political elite continue to pursue their narrow private
interests. They deliberately block anti-corruption reforms, having little or no concern
for the overall public or the common good. This form of legal corruption practised in
the post-accession period has led to legislative instability and the reversal of the
positive reform steps undertaken before accession. What this in-depth study of
Romania’s integrity legislation demonstrates is that unsuccessful reforms are not
necessarily a consequence of limited institutional capacities or a lack of legislative
vision or know-how, but rather of legislators’unwillingness to formulate an effective
anti-corruption policy and to enact genuine integrity measures. The use of inade-
quate and hasty procedures and the adoption of amendments inconsistent and
ill-fitted to the scope of the law in question can hardly be justified as being in the
interests of society at large, not to mention the votes cast in favour of provisions
motivated purely by short-term individual benefits. This self-serving conduct of the
political elite has dire consequences for the quality of legislation, for the quality of
institutional interactions, and more importantly, for the level of public trust and the
political engagement of the nonelite. Romania’s anti-corruption reforms are likely to
remain shallow, its democratic processes unstable, and Europeanization reversible as
long as the elite pursues agendas that differ from the common good and the nonelite
remains unable to sustainably hold the elite accountable.
82
USAID (2020: 181–2).
4.3 The Weak Impact of Civil Society 149
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150 4 Romania’s Justice and Anti-Corruption Reform: A Stubborn Divergence...
Chapter 5
Romania’s Nature Conservation Reform:
A Surprising Convergence with European
Law in Response to Societal Concerns
Nature insists on whatever benefits the whole
(Marcus Aurelius)
In order to grant more plausibility to the theoretical argument, a second case study
supplements the empirical analysis: an inquiry into Romania’s nature conservation
reform, specifically into the legislative framework regulating the protection of
environmentally significant habitats and species. This legislation, which stems
from two EU directives, the 1992 Habitats Directive (92/43/EEC) and the 1979
Birds Directive (79/409/EEC, later repealed by 2009/147/EC), aims at preventing
further loss of biodiversity in Romania.
The two European Nature Directives focus on rare and endangered species and on
typical and valuable habitats across the EU, introducing measures to maintain or
restore them to a favourable conservation status. To this end, they seek to establish a
coherent European ecological network of special areas of conservation (Natura
2000).
1
In a similar manner in which the Mechanism of Cooperation and Verification
for Romania sets the basis for good democratic governance, these directives estab-
lish basic principles for the good governance of protected areas. Both directives
require member states to designate Special Protection Areas (as provided by the
Birds Directive) or Special Areas of Conservation (as provided by the Habitats
Directive) in accordance with specific criteria and detailed scientific information.
They set out the procedures for designating these areas, as well as the management
and controls that need to be set up; they demarcate responsibilities and ensure
adequate reporting and answerability. They provide for all activities that might
significantly affect protected habitats or species to be carefully assessed, and inter-
ventions to be allowed only when no alternative solutions are available and when
there are imperative reasons of overriding public interest.
2
Under a general conser-
vation obligation, Romania (like all the other member states) is required to
1
European Council (1992).
2
European Council (1992). Council Directive 92/43/EEC, Art. 6 (4); European Parliament and the
Council of the European Union (2009). Council Directive 2009/147/EC, Art. 9.
©The Author(s) 2022
L. Martin-Russu, Deforming the Reform, Contributions to Political Science,
https://doi.org/10.1007/978-3-031-11081-8_5
151
implement laws, regulations or administrative provisions, not only to avoid the
deterioration or disturbance of habitats and species, but also to take the necessary
measures to ensure their health. To this end, it is required to establish management
plans, as well as statutory, administrative or contractual agreements that allow for the
adequate administration of protected areas.
3
Expected to harmonize its legislation with the nature conservation acquis before
joining the EU in January 2007, Romania made the increase in the number and size
of protected natural areas a priority. This, however, posed particular challenges due
to the weak administrative capacity of the state’s environmental agencies and their
lack of focus on habitats and species conservation,
4
and required the efforts towards
conserving biodiversity to be significantly intensified in the short-term. The surface
of protected areas increased rapidly from 7% on the eve of EU accession to 17% of
the national territory in 2014.
5
To date, the country’s Natura 2000 network includes
no less than 606 sites, covering 22.7% of the state’s area, with 54,214 square km of
land area and 6362 square km of marine area covered by Natura 2000 protected
sites.
6
Romania is also the country with the largest area of surviving primaeval and
quasi-primaeval forests in the EU, with a total of 61,655 hectares as recorded to date
in the state’s national inventory.
7
The swift post-accession expansion of protected areas, which generated an
increased need for an effective management of these areas, translated into a novel
legislative solution: the Romanian civil society organizations and the scientific
community were allowed to assume responsibility for the implementation of the
relevant legislation, thereby assisting the state in ensuring compliance with
European law. The legislative framework for nature conservation offered civil
society the opportunity to closely interact with the government and contribute to
law enforcement.
8
As the following pages will show, this manner of transposing
European directives—allowing for the shared governance of protected areas and
increased societal participation—proves once again that the success of
Europeanizing reforms depends on the one hand on the commitment of the political
elite towards those reforms, and on the other hand on the strength of civil society to
re-establish balance when this commitment fades. As long as they are not influenced
by selfish considerations of personal gain and as long as they are held accountable by
strong specialist and civil society groups, Romanian representatives play an impor-
tant role in the process of developing good governance, or, at the very least, good
environmental governance.
The present chapter follows the same structure as the previous one: it explores, in
sequence, the post-accession development of the country’s Nature Conservation
3
European Council (1992). Council Directive 92/43/EEC, Art. 6 (1).
4
Manolache et al. (2017: 26).
5
Antonescu et al. (2015).
6
European Environment Agency (2021).
7
Government of Romania and Ministry of Environment, Waters and Forests (2021).
8
Manolache et al. (2017).
152 5 Romania’s Nature Conservation Reform: A Surprising Convergence...
Legislation (in both procedural and substantive terms), the impact of this develop-
ment upon the achieved level of Europeanization, the extent to which elites acted on
the basis of their own personal interests or in the interest of society at large, and
finally, the strength of the sectoral civil society in improving accountability and the
quality of implementation. This second case study shows how determined the
domestic political elite can be to overcome institutional or structural barriers in
order to realize European goals, when there is little scope for narrow personal
interests to be pursued; it also shows how powerful and persuasive civil society
can be, when it establishes itself as an actor to be reckoned with in policy-making.
By complementing the analysis with such an example, the present study also
accounts for the asymmetric impact of Europe: the differences in the degree and
direction of change across policy fields are explained as a result of the pursuit of
various interests by the domestic political elite and, more importantly, as a result of
the unequal impact of civil society organizations across different policy areas.
5.1 The Development of Nature Conservation Laws
and the Corresponding Level of Europeanization
As noted above, Romania was required to comply fully with the nature conservation
acquis at the time of accession; the state’s Accession Treaty did not contain
derogations or transition periods in this field. To a significant degree, the provisions
of the two directives (Birds Directive and Habitats Directive) were part of the
national legislation, beginning from the year 2000, when the government adopted
the Emergency Ordinance 236/2000,
9
which was later enacted into Law 462/2001
and Law 345/2006. However, given the incorrect and incomplete transposition of the
two directives, immediate and concrete steps were required after January 2007 to
ensure that the state would act in full compliance with its obligations. This led to the
adoption of the Government Emergency Ordinance OUG 57/2007
10
on
20 June 2007.
OUG 57/2007 repealed the previous nature conservation acts; it produced imme-
diate effects once it came into force, but pursuant to Art. 115 of the Romanian
Constitution it had to be approved through a bill adopted by the Parliament. A
legislative proposal for adopting OUG 57/2007 was introduced in the Senate of
Romania no later than 26 June 2007 and adopted with minor changes and little
plenary debates on 22 October 2007, when it was forwarded to the lower chamber
(see Fig. 5.1
11
). The Chamber of Deputies was hesitant to adopt the law as proposed
9
Government of Romania (2000).
10
Government of Romania (2007).
11
Figure 5.1 was developed by the author based on data gleaned from the official websites of the
Romanian Parliament (www.cdep.ro and www.senat.ro). The entries highlighted in different shades
of green represent adopted and promulgated legislative acts that run in parallel to the initial Nature
5.1 The Development of Nature Conservation Laws and the Corresponding Level... 153
by the Senate: the draft was adopted only in April 2011, after pending in the lower
chamber for more than three years. The very long delay in adopting this draft law can
hardly be justified by the need to improve its provisions; in the almost four years in
Parliament, its 56 articles indeed received numerous amendments, but were subject
to surprisingly little criticism. All amendments were given only cursory examina-
tion, being adopted as proposed, with no debate or justification.
In the time between the introduction of the draft in the Chamber of Deputies and
its promulgation as law, the European Commission initiated (on 23 October 2007) an
infringement procedure against Romania, which had yet to fulfil its obligations
under Art. 4 (1) and (2) of the Birds Directive.
12
In response to the infringement
procedure, the Romanian Government adopted a new Emergency Ordinance in
November 2008,
13
which refined the previously adopted OUG 57/2007. This later
Emergency Ordinance (OUG 154/2008)—adopted promptly to remedy the compli-
ance problems identified by the Commission—was subsequently integrated into the
draft law, which at the time was still pending in the lower parliamentary chamber,
and it became Law 49/2011 on 13 April 2011.
Regardless of the fact that the provisions of the 2008 Emergency Ordinance
(OUG 154/2008)—which itself amended the 2007 Emergency Ordinance (OUG
57/2007)—were to be contained in Law 49/2011, a new draft law to adopt the latest
Fig. 5.1 The development of nature conservation laws—technical procedural aspects
Conservation Law, OUG 57/2007 (displayed in black). The binding decision of the Romanian
Constitutional Court (DCC) is displayed in grey. Figure 5.1 also indicates (in the respective colours
for each law) all the intermediary drafts adopted and amendments proposed and discussed in the
Chamber of Deputies (CD) or in the Senate (S) before the final vote and the promulgation.
12
European Court of Justice (2011).
13
Government of Romania (2008).
154 5 Romania’s Nature Conservation Reform: A Surprising Convergence...
governmental decree was submitted to Parliament on November 2008. If adopted,
this draft would have merely been a restatement of the very same measures already
included in another act, which would have created an undesirable legislative paral-
lelism. On these grounds, the proposal was eventually rejected by Parliament, yet
only after being adopted by the Senate in March 2009 and after pending in the
Chamber of Deputies for seven years; in March 2016 Law 34/2016 finally rejected
Ordinance 154/2008, which contained provisions already included in the Nature
Conservation Law 49/2011.
Two additional governmental decrees further amended the existing legislation in
2014: Emergency Ordinance OUG 31/2014 and Government Ordinance OG
20/2014. Their retrospective approval in Parliament was very swift, as the Parlia-
ment introduced few amendments and came to a decision after minimal plenary
debates. It was in 2015 that changes to the Nature Conservation legislation were first
adopted, not by governmental decree, but following the regular legislative proce-
dure: in June 2015, a draft was introduced in the higher parliamentary chamber that
proposed the establishment of a National Agency for Natural Protected Areas
(ANANP). The draft was debated upon and adopted by the Parliament on 11 May
2016, when it became Law 95/2016. Two years later, in March 2018—again by
means of an Emergency Ordinance (OUG 13/2018)—the structure of the newly
established ANANP was modified with a view to strengthening the agency’s
administrative capacity; this governmental decree approved the creation within the
ANANP of regional structures responsible for the management of protected areas.
The provisions of OUG 13/2018 were soon thereafter adopted in Parliament (in less
than four months), becoming Law 162/2018 in July 2018. In the same year, two
further laws were adopted which amended the nature conservation legislation: Law
148/2018, which introduced annual deadlines for granting derogations from the
species protection obligations laid down by OUG 57/2007; and Law 158/2018,
which introduced new trade-offs between nature conservation and Romania’s
extractive industry. Both laws were adopted relatively quickly, and without exten-
sive debate; the former passed through Parliament in 9 months, while the latter
entered into force in 15 months, after being subject to a constitutionality check.
Also in 2018, a controversial amendment of the nature conservation legislation
came into effect even more quickly, transferring the responsibility for managing
protected natural areas from the non-profit organizations that were currently holding
custody of the protected sites to the ANANP. A Governmental Emergency Ordi-
nance (OUG 75/2018)
14
, adopted in July 2018, enacted this significant and abrupt
change in the administration of numerous protected natural areas, without any
consultation with the civil society and without any transitory provisions that
would allow for the bringing of ongoing custody contracts to term. The Emergency
Ordinance was submitted to Parliament for approval in the same month and was
adopted by both Chambers no later than February 2019. A decision of the Romanian
Constitutional Court (DCC 214/2019) eventually led to its repeal, but not until June
14
Government of Romania (2018).
5.1 The Development of Nature Conservation Laws and the Corresponding Level... 155
2021. Following the decision of the Constitutional Court published in April 2019 the
draft was reintroduced in Parliament for re-examination, it passed through the Senate
in one month, but was pending in the Chamber of Deputies for 20 months before
being rejected by Law 151/2021. In the meantime, while the law rejecting the OUG
75/2018 was still in the Higher Chamber for review, another law was passed for the
same purpose, to put the legislative framework in accordance with the decision of the
Constitutional Court DCC 214/2019 and reinstate the right of non-profit organiza-
tions to act as administrators of (or partners in the administration of) protected areas.
Afirst draft of this law was presented before the Senate in June 2019, it was adopted
in 15 days, it passed through the Lower Chamber in three days, and became Law
220/2019 already in November 2019.
More recently, the legislative framework for nature conservation was amended
again when Law 90/2021 modified the sanctioning regime adopted through Law
49/2011. Triggered by the European Commission’s pre-infringement procedures, an
initial draft of this law was submitted to the Higher Chamber in October 2015. It was
adopted and transferred to the Lower Chamber in November 2015, where it was
pending without much debate for more than five years, until April 2021.
If interpreted in strictly procedural terms, nature conservation legislation is no
different from the ANI Law analysed above; it provides comparable evidence of a
needlessly complicated legislative process. Similarly to the practices described in the
previous case study, the emergency procedures and the use of governmental decrees
inhibited the consolidation of straightforward legislation by acts of Parliament. The
extensive use of emergency procedures was motivated by an urgent need to comply
with European requirements and to promptly transpose the Nature Directives.
Without questioning here the urgency of the measures proposed, it may be con-
cluded, however, that the overuse of Government Emergency Ordinances (OUG)
only resulted in a procedurally patchy reform. Also, the government’s tendency to
use emergency procedures in order to promptly transpose the European Nature
Directives was not always mirrored in the pace with which the Parliament adopted
the acts. Some draft laws had been pending for years in Parliament before they were
finally promulgated.
The sloppy procedures used by the Romanian legislature proved to be time-
consuming: the Chamber of Deputies needed more than three years to adopt the
law approving OUG 57/2007.
15
Besides, the slow legislative process was in this case
no guarantee of quality: on 4 December 2007, the plenum of the lower chamber
voted against the draft proposed by the Senate without any debate or arguments
brought forward against the proposed provisions,
16
and this after the Senate itself
had invested very little effort in amending the Government Emergency Ordinance
15
Parliament of Romania (2011). Law 49/2011.
16
With 84 votes in favour, 103 votes against, 7 abstentions and 3 votes not cast, the proposal failed
to pass, remaining to be reconsidered in the subsequent parliamentary session. Parliament of
Romania, Chamber of Deputies (2007), ‘Plenary Session of the Chamber of Deputies. Minutes of
the Meeting held on December 4th 2007’http://www.cdep.ro/pls/steno/steno.stenograma?
ids¼6413&idm¼56,03, accessed 5 Jul 2018.
156 5 Romania’s Nature Conservation Reform: A Surprising Convergence...
while approving it. This unjustified rejection of the draft resulted in the law’s
pending in the lower chamber for months, time during which its provisions were
amended by another Emergency Ordinance (OUG 154/2008), which further
prolonged and upset the entire legislative process. Arguably, this manifest lack of
systematic thinking and planning, the lack of clarity and precision in drafting laws
and the seemingly arbitrary and unpredictable style of decision-making resulted in
faulty legislation, which subsequently required additional decree-laws to correct the
mistakes. In fact, later in 2014, the law was again revised by two further govern-
mental decrees (Government Emergency Ordinance OUG 31/2014 and Government
Ordinance OG 20/2014).
In 2018, following the adoption of the controversial Government Emergency
Ordinance OUG 75/2018 and its approval in Parliament, the Constitutional Court, in
its Decision 214 of 2019, declared unjustified the Government’s resort to emergency
powers to clarify the management regime of protected areas. As the Constitutional
Court held, the emergency governmental decree was not supported by convincing
proof of an unanticipated exceptional situation, nor by the existence of a public
interest which unmistakably required immediate action. On these grounds, the said
act was repealed as unconstitutional and returned to Parliament for re-examination. It
took another two years for the Parliament to formally reject the OUG 75/2018.
17
This long delay may have also resulted from the fact that the decision of the
Constitutional Court was already part of Law 220/2019 presented in parliament
and adopted shortly after the publication of the Court ruling. The Parliament had this
law passed, without a parliamentary fast-track procedure, but in an incredibly speedy
manner and with incredibly little debate. In an attempt to comply as soon as possible
with the decision of the Constitutional Court, Law 220/2019 made its way through
both parliamentary chambers in less than two months and was adopted—following
another constitutional review—within five months of when it was initially proposed
before Parliament. Its adoption brought the legislative framework to the status quo of
2018. Again, passing legislation by decree (through OUG 75/2018) was de facto a
refusal on the side of the government to engage in dialogue, a practice which was
also upheld in Parliament, where amendments were adopted without careful consid-
eration of the matters at stake, without much debate and without any coherent
strategy and proper consultation of the stakeholders or the general public. Conse-
quently, it is hardly surprising that the large body of rapidly changing legal norms in
the field of nature conservation proved at times to be difficult to comprehend and
consistently apply.
What is surprising, however, is that despite the abovementioned procedural errors
and questionable legislative performance, in substantive terms, the numerous addi-
tions and refinements to nature conservation legislation included changes which in
practice allowed the reform to maintain a mostly positive trend towards
Europeanization. A notable exception to this Europeanizing trend is the above-
mentioned adoption of OUG 75/2018, with strong reform-reversal effects caused
17
Parliament of Romania (2021) Law 151/2021.
5.1 The Development of Nature Conservation Laws and the Corresponding Level... 157
by the exclusion of non-governmental organizations from the management of
protected areas. This reversal was however only temporary, for the decision of the
Constitutional Court (DCC 214 of 2019) followed by the adoption of Law 220/2019
reinstated the former right of civil society to take an active part in the administration
of protected areas.
At the core of Romania’s nature protection legislation stands the principle that
nature conservation interests take priority over any other interests, exceptions only
being allowed in rare cases: to ensure national security, public health and public
safety, or to prevent natural disasters. This principle, laid down explicitly in Article
6 of the initial Government Emergency Ordinance 57 of 2007 (OUG 57/2007),
remained unchanged throughout the numerous refinements to the law, and remained
in force and in full accordance with the spirit of the European Nature Directives.
By law, any area may be placed under a nature protection regime, regardless of its
use or its ownership status. The protection and conservation of natural resources thus
goes beyond the borders of private property. In such cases, the law guarantees proper
and just compensation for landowners who set aside their land for nature conserva-
tion. Article 26 of OUG 57/2007 outlines the compensation rights for landowners
who suffer losses due to restrictions on land use imposed under nature conservation
legislation.
18
As adopted in its initial form in 2007, this provision established a right
to compensation claims, without specifying either the form or the term within which
compensations should be awarded. In its amended draft
19
of October 2007, the
Senate stated that financial compensations were to be paid to landowners within
six months after the institution of the nature protection regime on the site in question.
This provision, however, never entered into force, as it was amended once more in
the Chamber of Deputies
20
in 2011. The final version once more removed the type of
compensations awarded and the time frame, but explicitly established the Govern-
ment as the designated authority responsible for laying down the compensatory
amounts and the compensatory mechanisms within 90 days after the entering into
force of the law. Even though not completely satisfactory, the article in its current
form at least provides clarity regarding who is the responsible authority for com-
pensation payments; it renders the Government accountable for the realization of the
right to adequate compensation, thereby helping those who are not justly compen-
sated to seek remedy in court.
21
As mentioned already at the beginning of this chapter, the protection of habitats
and species of European importance is realized through the designation of Special
18
Government of Romania (2007). OUG 57/2007, Art. 26 (1).
19
Parliament of Romania, Senate of Romania (2007). Draft bill adopted by the Senate of Romania
on 22 October 2007, in the process of adopting Law 49/2011.
20
Parliament of Romania, Chamber of Deputies (2011). Draft bill adopted by the Chamber of
Deputies on 8 March 2011, in the process of adopting Law 49/2011.
21
Parliament of Romania, Chamber of Deputies, The Committee for Public Administration Terri-
torial Planning (2011: 78–9). Report published in the process of adopting Law 49/2011.
158 5 Romania’s Nature Conservation Reform: A Surprising Convergence...
Protection Areas (SPA) or Special Areas of Conservation (SAC),
22
i.e. by creating
the so-called Natura 2000 network of protected areas. At the domestic level, the
Romanian Ministry of Environment acts as the central authority with the task of
defining these areas,
23
establishing a system to monitor the conservation level
24
and
the incidental capture and killing of protected animal species.
25
At the same time, it
maintains communication with the EU and coordinates and supervises all other
environmental authorities, i.e. the National Environmental Protection Agency
(ANPM), the National Agency for Natural Protected Areas (ANANP), and the
National Environmental Guard (GNM), with their regional and local structures, as
well as the Administration of the Danube Delta Biosphere Reservation. In this way,
it oversees the enforcement of the nature conservation legislation and helps Romania
to fulfil its reporting obligations under the European Nature Directives.
26
The network of protected natural areas includes a wide variety of sites, with very
different conservation needs and land use patterns. They range from areas of strict
conservation under complete freedom from human interference, to national or
natural parks available for recreational or educational use, or productive land- and
seascapes that are managed to provide other services (such as agriculture, fishery or
forestry), but in balance with wildlife. The designation of nature conservation areas
under Government Emergency Ordinance 57 of 2007 (OUG 57/2007) fell under the
responsibility of the Parliament (for biosphere reserves and for sites listed as natural
world heritage sites), of the Government (for geo-parks, national or natural parks, for
Special Areas of Conservation (SAC) or Special Protection Areas (SPA) among
others), and of the Ministry of Environment (for the designation of Sites of Com-
munity Importance (SCIs)).
27
An attempt to include the national and natural parks in
the network of protected areas designated by Parliament, as proposed by the Senate
in its October 2007 draft of Law 49/2011,
28
was rejected by the Chamber of
Deputies in 2011. In its current form, the law provides that only areas listed as
natural world heritage sites (257 sites globally) be designated by law in Parliament.
All other protected areas are designated through governmental decisions, a measure
which, given the current legislative practice in Romania, renders the entire process
more efficient and timely, and allows for a better level of compliance with European
standards.
A different procedure is to be followed though for the Sites of Community
Importance (SCI), which are to be designated by Order of the Ministry of the
Environment following the opinion of the Romanian Academy. It is worth clarifying
22
Government of Romania (2007). OUG 57/2007, Art. 31.
23
Government of Romania (2007). OUG 57/2007, Art. 8 (3).
24
Government of Romania (2007). OUG 57/2007, Art. 32.
25
Government of Romania (2007). OUG 57/2007, Art. 36.
26
Government of Romania (2007). OUG 57/2007, Art. 40.
27
Government of Romania (2007). OUG 57/2007, Art. 8(1).
28
Parliament of Romania, Senate of Romania (2007). Draft bill adopted by the Senate of Romania
on 22 October 2007, in the process of adopting Law 49/2011.
5.1 The Development of Nature Conservation Laws and the Corresponding Level... 159
at this point that the designation of such areas of community importance through the
Ministry of the Environment is only an intermediary stage that comes before the
acknowledgement of these sites at the European level. Based on the proposals
provided by Member States, the European Commission holds scientific seminars
on each biogeographical region, evaluating and approving the listed SCIs. Once they
are formally adopted by the European Commission pursuant to Art. 4 of the Habitats
Directive, these sites must be designated as Special Areas of Conservation (SAC) at
the domestic level “as soon as possible or within six years at the most.”
29
This
change in status of a protected area from an SCI to an SAC triggers the implemen-
tation of Art. 6(1), in addition to Art 6(2), 6(3) and 6(4) of the Habitats Directive onto
the site, thus offering an enhanced level of protection through positive and proactive
interventions to maintain and improve the status of conservation of its habitats and
species. Under these requirements, Romania needs to establish—within six years—
conservation objectives and measures tailored to the needs of each area approved as
an SCI, and proceed to its designation as an SAC through a decision of the
Government. This is a legal obligation with which Romania often fails to comply
in practice. At the legislative level, the already intricate procedure of designating
such conservation areas was initially complicated further by the requirement laid
down in OUG 57/2007 that the Ministry of the Environment, while giving a site its
initial status as a Site of Community Importance (SCI), takes note not only of the
opinion of the Romanian Academy, but also seeks the approval of five other central
authorities competent in public administration, agriculture infrastructure or regional
development.
30
This provision, as adopted in June 2007, significantly impeded and
delayed the designation of SCIs, causing Romania to lag behind in the implemen-
tation of the Habitats Directive. The situation was remedied in March 2011, when
Law 49/2011
31
established that the Ministry of the Environment only needs to
respect the opinion of the Romanian Academy on matters regarding the designation
of Sites of Community Importance, allowing for these areas to enter the process of
approval at the EU level with more ease.
While it is true that the designation of protected natural areas represents a
recognition of the importance of those areas and establishes specific obligatory
requirements which must be met in order to reach clearly defined conservation
objectives, it is not in itself a guarantee of species and habitats protection. The
management of these areas is a much more decisive factor affecting the extent to
which the stated conservation objectives are achieved. Currently, almost one-quarter
of the national land area of Romania is covered by protected areas (with 1574
designated nature conservation sites),
32
the management of which is still a consid-
erable challenge. In this respect, Art. 18 of OUG 57/2007 made an important
29
European Council (1992) Council Directive 92/43/EEC, Art. 4.2.
30
Government of Romania (2007). OUG 57/2007, Art. 8 (1) c).
31
Parliament of Romania (2011). Law 49/2011, Art. I (8).
32
According to the inventory published by ANANP on its website (URL: http://ananp.gov.ro/wp-
content/uploads/inventar_arii_Ro_v1-00000003.pdf, accessed 22 Mar 2022).
160 5 Romania’s Nature Conservation Reform: A Surprising Convergence...
contribution to the administration of protected natural areas by allowing, from 2007
onwards, the responsibility for their management to be delegated to a variety of
public, private or non-governmental actors such as public or private research insti-
tutes or educational institutions, museums and public or private forestry administra-
tions.
33
Management responsibilities could be assigned on a contractual basis for a
period of 10 years, provided that the organizations entrusted with the management of
protected areas had not only the technical expertise, but also the necessary resources
to establish and implement the measures required for nature conservation.
34
This
made it legally possible for the state to delegate its authority and responsibility to
other actors (both governmental and non-governmental), who had the obligation to
apply for grants, develop management plans, implement and monitor their applica-
tion, and ensure compliance with the relevant nature conservation legislation.
Subsequent amendments to this clause, through Law 49/2011, OUG 31/2014 and
Law 95/2016, did not for a long time change the essence of these provisions.
A notable exception was the amendment of Art. 18 through Government Ordi-
nance OG 20 of 2014
35
, which specifically allowed the management of protected
areas to be delegated to the National Forest Administration Romsilva. It is true that
regardless of who bears responsibility for managing a protected area, the central
environmental authority remains the final decision maker with respect to the man-
agement measures to be adopted, approving all management plans and monitoring
their implementation. Still, this legislative change raised questions with regard to an
increased scope for potential conflict of interest. Romsilva—a profit-oriented state
company mainly active in forest administration, whose revenue largely comes from
forestry and non-timber forest products—may indeed find itself in a conflict of
interests if given the responsibility to manage nature conservation areas and
expected to cover its full management costs from self-generated income.
36
The
specific reference to Romsilva was eventually eliminated from the law through an
amendment of Art. 18.
37
The National Forest Administration, however, remained
legally entitled to manage nature conservation areas, and is currently sub-contracted
by the Ministry of Environment as administrator of no less than 22 national and
natural parks or Natura 2000 sites.
38
A much more consequential change in the provisions of Art. 18 was adopted in
2018, also by means of a governmental decree, when OUG 75/2018 provided for
non-profit organizations to no longer be entitled to manage nature-protected areas,
having their responsibilities transferred to the ANANP. This abrupt amendment of
the legislation was adopted without any consultation with the affected organizations
33
Government of Romania (2007). OUG 57/2007, Art. 18 (1).
34
Government of Romania (2007). OUG 57/2007, Art. 20 (1).
35
Government of Romania (2014).
36
Stanciu and Ioniță(2014: 98–9).
37
Parliament of Romania (2016). Law 95/2016, Art. 9 (2).
38
Data retrieved from Romsilva’s website (URL: http://www.rosilva.ro/articole/management__
p_2308.htm, accessed 22 Mar 2022).
5.1 The Development of Nature Conservation Laws and the Corresponding Level... 161
or the general public, without any transitory arrangements, and without making sure
that the ANANP had the capacity to streamline the administration of a greater
number of protected natural areas and ensure their effective management through
its regional structures. The amendment was in effect a minimal change in the
wording of the law, as small as the removal of NGOs from the list of legal entities
entitled to the administration of protected areas. It implied however a transfer of all
responsibilities from non-profit organizations to the ANANP, a hasty termination of
all running contracts of those organizations acting as stewards of protected areas, and
as such it disrupted management plans and caused uncertainty for no less than
264 nature conservation sites covering approximately 1.6 million hectares.
39
This
legislative change again raised concerns with regard to a potential conflict of
interests, this time generated by an overlap of management, coordination, but also
monitoring and control responsibilities all held by the ANANP. Assessed against the
objective to ensure adequate administration of protected areas as a basic requirement
to fulfil the goals set out in the Nature Directives, this amendment shows a clear case
of de-Europeanization.
This legislative setback was subsequently counteracted by a ruling of the Con-
stitutional Court that required a return to the status quo which was enacted through
Law 220/2019, followed by a formal rejection in Parliament of the OUG 75/2018 in
2021. At present the legislation, by virtue of the said Art. 18, as well as Art. 16 (3
1
),
again allows non-governmental organizations (along with various other types of
scientific and non-scientific organizations) to act as administrators of nature conser-
vation areas, which marks an important step back from centralized decision-making
towards joint management or even private stewardship of protected sites. Termino-
logically, the legislation currently in force no longer refers to custody and custodians
of protected areas, but instead to administration and administrators, without clearly
differentiating between these concepts. It does however make clear that
non-governmental organizations and associations enjoy the right to act as adminis-
trators of protected areas.
A return to the status quo that preceded the adoption of OUG 75/2018 was only
reasonable, given the fact that the administration of protected natural areas delegated
to non-profit organizations was functioning with comparative success before July
2018. The ANANP itself evaluated the performance of 166 such custodians to be in
93% of cases very good or good.
40
At the same time this approach of the collabo-
rative administration of protected areas is perfectly in line with Art. 6 of the Habitats
Directive: it serves not only the purpose of sharing the burden of management, but
also provides opportunities for the pro-active participation of right-holders and
stakeholders in the development of nature conservation strategies.
41
What is more,
by virtue of Art. 19 of OUG 57/2007, the administrators of nature conservation areas
39
WWF-România (2018a).
40
According to a report published in 2017 on the ANANP website (URL: http://ananp.gov.ro/
ananp/2017/12/21/raport-evaluare-custozi-administratori/, accessed 24 Mar 2022).
41
Stanciu and Ioniță(2014: 129).
162 5 Romania’s Nature Conservation Reform: A Surprising Convergence...
are required to establish advisory councils that meet on a regular basis and have a
consulting role in decision-making. By law, advisory councils are multi-stakeholder
bodies which include representatives of the local or regional administration, repre-
sentatives of institutions responsible for the management of natural resources at a
central or regional level, and representatives of civil society or other stakeholders.
This provision and the obligation to establish such advisory councils not only opens
up a source for expertise, but also creates an indispensable platform for debate,
deliberation and the dissemination of information among stakeholders at different
levels in order to promote the different interests involved.
Financial support for the management of nature conservation areas is provided by
the central environmental authority. Under Art. 30 of OUG 57/2007, the various
organizations responsible for the management of nature conservation areas are
required to estimate the costs of management and communicate them to the central
authority, which is in charge of awarding grants from the state budget. Furthermore,
the same article authorizes the administrators of protected natural areas to determine
fees for nature conservation services, allowing them to complement the resources
needed for an adequate management of protected sites.
Of particular importance for the protection of biodiversity and species is the
legally enacted obligation to assess the environmental impact of all projects likely to
have a significant negative influence on the conservation of a site, due to their nature,
location or size. Article 28 of OUG 57/2007 prohibits the deterioration of habitats
and the disturbance of species; under this provision, any private or public project
must be subject to an appropriate assessment and shall be authorized by competent
environmental authorities with the approval of the ANANP or the administrator of
the protected natural area. The latter determine if projects with negative implications
for nature conservation are justified by an overriding public interest.
42
This require-
ment of the prior consent of the administrator functions as a filter screening all
potential projects in a protected area to distinguish between environmentally friendly
and environmentally destructive plans or projects. Several amendments were made
to this provision to better comply with Art. 6 of the Habitats Directive and Art. 4 of
the Birds Directive. Among the most important changes is the one adopted in
2008,
43
which more clearly defined the obligation to issue environmental approval,
and additionally included the obligation to consult the public before issuing such
approvals. In this manner, the law stimulates public participation, giving individuals
the opportunity to engage in consultations, debates and hearings on environmental
issues.
The articles of law described above indicate that Romania’s approach to nature
conservation and protected-areas-governance, as reflected in its legislation, has been
(excepting the period between July 2018 and November 2019) one rather oriented
towards a multi-stakeholder inclusive environmental governance. The manner in
which the state decentralized responsibility empowered a wide variety of actors to
42
Government of Romania (2007). OUG 57/2007, Art. 28 (3) and (4).
43
Government of Romania (2008). OUG 154/2008, Art. I (2).
5.1 The Development of Nature Conservation Laws and the Corresponding Level... 163
get involved in the management of protected areas, and brought nature conservation
closer to the broad public. The various governmental and non-governmental orga-
nizations acting as custodians of protected sites not only brought local expertise and
a better awareness of the particularities of the area, but also better possibilities to
mobilize and engage local communities.
44
However, the advantages offered by the decentralized management of protected
areas came at the expense of a lack of coherence and coordination across the
different organizations responsible for planning and implementation. Article 17 of
OUG 57/2007 addressed this challenge by establishing the National Agency of
Natural Protected Areas (ANANP), a body specialized in the field of nature conser-
vation and in charge of coordinating all managers of protected areas and ensuring a
consistent and uniform approach to conserving biodiversity and species.
45
Disregarding the need for coordination among the various entities responsible for
the management of protected areas, this provision (enacted in 2007 by OUG
57/2007) was removed from the final version of the law adopted in 2011,
46
with
all responsibilities of the ANANP being transferred back to the Ministry of the
Environment. In 2016, however, under Law 95/2016,
47
the ANANP was
re-established, and started to play an important role in monitoring the management
of protected areas, evaluating the requests for custody, endorsing regulations, con-
servation measures and management plans, and carrying out the administration of
protected areas that are not managed by other organizations.
48
Allowing for a more coherent administration of protected areas was one of the
arguments advanced by the government in support of adopting the controversial
OUG 75/2018 that transferred the management responsibility from all
non-governmental organizations to the ANANP. However, this shift towards a
centralized management proved ineffective. For the ANANP it was already a
challenge to ensure the administration of those areas that lacked stewardship,
which made it practically impossible for it to handle the management of an even
greater number of sites. In effect, under these circumstances, the much pursued
coherent management of protected areas was no longer attainable. Therefore, the
annulment of this legislative change first through the decision of the Constitutional
Court in 2019 and then in Parliament later in the same year was a welcome
restoration of the right of non-governmental organizations to act as administrators
of protected areas. Following the adoption of Law 220/2019, the ANANP
resumed—in theory, but not yet in practice—a mainly coordinating role: to partner
with governmental or non-governmental organizations, to ensure a uniform
approach to site administration, to help the administrators to share experiences,
44
Stanciu and Ioniță(2014: 122).
45
Government of Romania (2007). OUG 57/2007, Art. 17 (2).
46
Parliament of Romania, Chamber of Deputies (2011). Draft bill adopted by the Chamber of
Deputies on 8 March 2011, in the process of adopting Law 49/2011.
47
Parliament of Romania (2016). Law 95/2016, Art. 1 (1).
48
Manolache et al. (2017: 29).
164 5 Romania’s Nature Conservation Reform: A Surprising Convergence...
and to provide expertise and facilitate dialogue.
49
On these grounds, the
re-establishment of the ANANP through Law 95/2016, but also the restored rights
of non-profit organizations to act as administrators of protected areas through Law
220/2019, are here regarded as shifts back towards Europeanization, steps towards
achieving a more coherent but also a more efficient implementation of nature
conservation law.
Lastly, an equally important provision for nature conservation that contributes to
the protection and restoration of key habitats and species is the imposition of
sanctions for the failure to comply with the laws and protected area regulations. In
this respect, Art. 52 and Art. 53 of OUG 57/2007 provide for a set of sanctions
designed to compensate for damages and losses and to reduce the risks of such
occurrences. These sanctions include imprisonment or significant fines (of up to
13,000 Euro) for acting without the administrator’s approval, for the hunting of
strictly protected species, for damages caused on site, and even for the protection of
species and habitats unauthorised by the Ministry of Environment. In 2011, with the
adoption of Law 49/2011,
50
the scope of sanctions was significantly broadened to
include restrictions on camping outside already established campsites, driving vehi-
cles off designated routes, inadequate waste disposal and further activities that can
be harmful to protected habitats or species. These newly imposed fines help build a
greater sense of responsibility and a deeper respect for nature among visitors to
protected areas. Moreover, following a pre-infringement procedure launched by the
European Commission against Romania, a tougher sanctioning regime was adopted
for legal persons or entities found guilty of crimes under the nature conservation
legislation. Law 90/2021 amended Art 52 of OUG 57/2007 providing for fines
between 500 and 25,000 Lei (approx. 100 and 5000 Euro) daily, a shift from a
one-time fine between 30,000 and 60,000 Lei (approx. 6000 and 12,000 Euro)
applicable to natural and legal persons alike. While it is true that the minimum
sanctions were lowered (from approx. 6000 Euro to only 100 Euro per day), making
criminally liable legal persons subject to sanctions on a daily basis does have a
higher potential to compel compliance over time.
Overall, unlike in the case of Romania’s integrity legislation, which went through
a clear process of de-Europeanization after the state joined the EU, nature conser-
vation legislation evolved more often than not towards a refinement of existing
provisions in order to ensure a more effective implementation and consistency with
the requirements of the two European Nature Directives. Although Romania’s path
towards Europeanization as regards nature conservation legislation has by no means
been a linear one, its reform oscillates between progress and reversal. And yet, in the
field of nature conservation as opposed to the field of public integrity, the legislation
in its current form—still far from ideal—is better suited than it was in 2007 to meet
the European standards for nature conservation. If assessed against the measures in
the Birds and Habitats Directives, this case displays a generally satisfying legislative
49
Stanciu and Ioniță(2014: 69).
50
Parliament of Romania (2011). Law 49/2011, Art. I (78), (79) and (81).
5.1 The Development of Nature Conservation Laws and the Corresponding Level... 165
performance, despite its rather cumbersome procedural path and its temporary
reversals of the status quo (see Fig. 5.2
51
).
As described above, two remarkable legislative setbacks were registered: in 2011,
when Art. 17 of OUG 57/2007 was amended, eliminating altogether the National
Agency of Natural Protected Areas (ANANP) despite its important role in coordi-
nating local-level environmental bodies; and in 2018, when OUG 75/2018 abruptly
and without consultation deprived non-governmental organizations of their right to
act as administrators of nature protected areas despite their effective capacity to
mobilize and allocate skills and resources for nature conservation. The relevance of
the agency was reasserted few years later when the ANANP was re-established
through Law 95/2016, which defined in a more clear and elaborate manner its
competences and aims. Non-governmental organizations also regained their right
to manage protected natural areas, as imposed by Law 220/2019. In all other
respects, the subsequent modifications of the legislation—adopted either through
governmental decrees or drafts voted upon in Parliament—led to an improved
alignment of the legislative framework with European norms and standards.
Fig. 5.2 The Europeanization of nature conservation legislation
51
Figure 5.2 was developed by the author based on the developments of the most relevant pro-
visions of Nature Conservation legislation.
166 5 Romania’s Nature Conservation Reform: A Surprising Convergence...
5.2 The Elite’s Pursuit of Societal Interests
As shown above, Romania responded to the adaptational pressure posed by the EU
through its European Nature Directives by adopting measures that to a large extent
made its nature protection legislation increasingly compatible with European law. In
practice, however, Romania still lags behind in applying and enforcing this legisla-
tion. The law, if not implemented in full, correctly or on time, fails to achieve its
desired effects in conserving habitats and species and protecting biodiversity. It is
important to note though that the difficulties slowing the actual implementation of
nature conservation legislation were even greater before Romania’s accession to the
EU, when the lack of resources and administrative capabilities was coupled with a
lack of experience in Natura 2000 protected area governance.
It was this need for a better and faster implementation of the legislation that called
for a diverse and decentralized management system for protected areas in Romania.
As mentioned above, decision-making power and responsibility was de jure and de
facto devolved from the central to the regional or local levels, from state actors to
private or non-governmental organizations, and from one public sector to another
(for instance, from the environmental to the forestry sector). In other words, the lack
of administrative capacity in environmental governance led to the emergence of
co-management and other forms of collaborative administration. This was on the one
hand a practical response to the questionable performance achieved under central-
ized authority before 2007, but also a change of perspective with respect to who
should make management decisions in protected areas. A decade later, in 2017, the
data published by the Ministry of Environment showed 239 sites out of a total of
531 Natura 2000 areas (55%) under local or regional custody
52
: 110 administered by
non-governmental organizations, 59 managed by state-owned companies, 44 by
public authorities, 18 by private companies and 8 by universities and research
organizations.
53
This more flexible and decentralized form of governance, secured
through legislative enactments, contributed in fact to a more effective protection of
habitats and species and led to a gradual convergence with European standards. Such
an approach to nature conservation—promoting the delegation of responsibility and
participatory decision-making processes—was already in itself an indicator of a high
degree of commitment on behalf of the elite to move the reform forward and give a
voice to those in society who had hitherto had no say or control in shaping the
strategy for nature conservation. Sharing power in order to prevent a further loss of
biodiversity was a policy choice that showed a domestic political elite willing to act
in the common interest and in line with European nature conservation objectives.
The adoption of OUG 75/2018 in 2018 disrupted this balance; it triggered an
abrupt movement away from the decentralized decision-making in which the
non-governmental sector played an important role in the management of protected
52
The remaining Natura 2000 sites, in high number, were officially administered by the National
Agency of Nature Protected Areas.
53
Manolache et al. (2017: 29).
5.2 The Elite’s Pursuit of Societal Interests 167
natural areas. Following this infamous governmental decree, non-profit organiza-
tions no longer had the right to exercise administrative control over protected nature
sites, with the entire responsibility placed instead in the hands of the ANANP. One
of the reasons invoked by the Government in support of its blanket decision to shift
the responsibility to the ANANP was the fact that the existing system of
decentralized management created significant problems for the implementation of
infrastructure projects that overlapped with protected natural areas. With this
approach, the Government suggested there was a direct conflict between public
interest in economic and infrastructure development and the interests of environ-
mental non-governmental organizations in nature conservation. The public debate
stirred in the aftermath of the adoption of OUG 75/2018 and the continued efforts of
the civil society in environmental issues showed however that these different
interests could and should be reconciled. Non-governmental organizations often
remained in place as de facto (even though no longer de jure) stewards of protected
natural areas, further developing management plans and working in collaboration
with local or regional authorities and assisting them to find solutions for infrastruc-
ture or economic development projects with limited or no environmental impact. In
2019, perhaps not least as a result of this bottom-up pressure to legally acknowledge
the role non-governmental organizations continued to play as active partners in the
administration of protected areas, the provisions of OUG 75/2018 were repealed in
Parliament by Law 220/2019, marking a return to the joint responsibility for nature
conservation.
A look back at the hasty manner in which the nature conservation acquis was
initially transposed at the domestic level in 2007 (without proper review, though a
Government Emergency Ordinance, OUG 57/2007) brings up an important obser-
vation: the adopted legislation could not promise a high degree of accuracy and a full
convergence with European law. The elite’s hurry to establish a legal framework for
protecting habitats and species on the eve of EU accession resulted in faulty
legislation that remained in constant need of amendments. The initial legislative
response to European requirements failed to adequately implement the Nature
Directives; it often included vague, imprecise and incomplete provisions and
allowed for legislative parallelisms.
54
As a consequence, the European Commission
opened an infringement procedure against Romania in October 2007 for its failure to
adequately transpose the European Birds Directive into national legislation. This
triggered a prompt response at the domestic level, and Romania swiftly corrected the
legislative errors by adopting another Emergency Ordinance, OUG 154/2008. At
least six further infringement procedures were opened against Romania in the
following years,
55
and several other governmental decrees and fast-track laws
further refined the legislative framework. The hasty manner in which this legislation
was drafted, the sloppy manner in which it was adopted—mainly by governmental
ordinances and in the absence of any significant parliamentary debate—and the
54
Parliament of Romania, The Legislative Council (2008: 2).
55
European Commission (2010, 2012b, 2019c, 2020b, 2020c, 2020d).
168 5 Romania’s Nature Conservation Reform: A Surprising Convergence...
legislative ambiguity resulting from it, might hint towards a general disinterest and
reluctance of the political elite to undertake genuine environmental reform. And yet,
the measures adopted and the justifications provided suggest that the political elite
tried to accommodate both societal interests and European demands, refraining from
the pursuit of personal interests that was evident during the adoption of public
integrity and anti-corruption legislation. In this case, legislators did not point to
pressure from the EU and the need for legislative change as an excuse to enact
additional measures to curb reform and serve personal ends.
Without addressing in detail all the issues raised during the adoption and amend-
ment of the laws under analysis, it is sufficient here to point out again that, being
under pressure from the European Commission, Romania gradually improved its
nature conservation legislation: it added several new definitions of terms, clarified
the mechanism through which protected areas are designated and their management
delegated to other institutions, and significantly broadened the scope of sanctions put
in place for failures to observe the laws and the rules applicable to protected areas.
The substance of the proposed changes and the urgency with which these changes
were adopted was motivated by the desire to bring domestic legislation in line with
EU requirements as soon as possible.
56
Indeed, in the explanatory notes accompanying each legislative draft and in the
interventions during the debates surrounding their adoption in Parliament, reference
was repeatedly made to the imperative to pass remedial measures in order to comply
with European requirements.
57
In this case, however, the measures adopted were not
only justified by the need to ensure domestic legislation’s compatibility with
European law. Another justification was that the failure to properly designate
protected areas and thereby ensure the conservation of habitats and species was
considered to produce negative effects at the level of the society; it was believed to
affect the quality of life and infringe upon the right of all Romanians to a clean and
healthy environment, as guaranteed by the Constitution.
58
Therefore, prompt action
to improve the legislation in this field was considered an essential step in protecting
the environment and the public’s right to it.
At the same time, concerns were raised with respect to the impact that environ-
mental reforms might have on local communities. Arguably, the restrictions imposed
by nature conservation legislation could significantly affect social and economic
development at the local level. Often enough, the measures adopted remained far
from the interests and concerns of local communities, with voices in Parliament
56
Government of Romania (2008) Explanatory note to OUG 154/2008; Parliament of Romania
(2014) Explanatory note to Law 161/2014; Parliament of Romania (2015) Explanatory note to Law
73/2015; Parliament of Romania (2016) Explanatory note to Law 95/2016.
57
PSD Senator: Parliament of Romania, Senate of Romania (2009: 43–4); PDL State Secretary:
Parliament of Romania, Chamber of Deputies (2011b); UDMR member in the Chamber of
Deputies: Parliament of Romania, Chamber of Deputies (2011c); PSD State Secretary: Parliament
of Romania, Senate of Romania (2015a: 126); PSD member in the Chamber of Deputies: Parlia-
ment of Romania, Chamber of Deputies (2015).
58
Government of Romania (2014). Explanatory note to OUG 31/2014.
5.2 The Elite’s Pursuit of Societal Interests 169
therefore arguing in favour of consulting all stakeholders and involving local
authorities more closely in legislative decision-making.
59
Compensatory payments
were a key issue during these debates.
60
It was often claimed that the government’s
rush to act by decree in order to fulfil its citizens’right to a healthy environment was
not matched by an equal concern for the citizens’right to private property. Since
nature conservation had been given priority over any type of economic interest,
landowners had the right to claim compensation for losses caused by the limitations
imposed on the use of their land. Without further assistance from the government,
this right would continue to exist de jure, but not de facto.The proper functioning of
these compensation mechanisms, it was argued, was vital for maintaining both social
and environmental well-being; Members of Parliament repeatedly called on the
Government to enforce its commitment to awarding compensation grants.
The legislation under discussion here underwent significant improvements, which
were meant not only to address people’s need for a clean environment and
the community’s need for sustainable development, but also articulated the need
for the administrators of protected areas to work on a clear legal basis. Concerns over
the manner in which earlier nature conservation legislation was being interpreted and
applied called for further revisions of the law, aimed at clarifying the rights and
obligations of managers of protected areas, and at simplifying and unifying imple-
mentation mechanisms.
61
Concrete examples of protected areas threatened with
destruction were presented in plenum, which served to underline once more the
fact that a more effective implementation of the law and an improved legal frame-
work for the administration of such areas was not only desirable, but also necessary
in order to ensure that Romania would be able to meet its nature conservation
objectives.
62
Even the controversial OUG 75/2018 allegedly resulted from a commitment to
public rather than personal interests of the political elite. It was claimed in both the
act’s explanatory note and during the parliamentary debates that the adoption of the
governmental decree was motivated by the need for transport infrastructure in
Romania, which had been stalled by the severe environmental constraints imposed
59
PSD Senator: Parliament of Romania, Senate of Romania (2009: 41–3); UDMR member in the
Chamber of deputies: Parliament of Romania, Chamber of Deputies (2016).
60
PNL member in the Chamber of Deputies: Parliament of Romania, Chamber of Deputies (2011b);
PNL member in the Chamber of Deputies: Parliament of Romania, Chamber of Deputies (2014);
UDMR member in the Chamber of Deputies: Parliament of Romania, Chamber of Deputies (2015);
PNL member in the Chamber of Deputies: Parliament of Romania, Chamber of Deputies (2016).
61
PSD State Secretary: Parliament of Romania, Senate of Romania (2015a: 126); a PSD member
and a UDMR member in the Deputies Chamber: Parliament of Romania, Chamber of Deputies
(2015); PSD State Secretary: Parliament of Romania, Senate of Romania (2015b: 69–70).
62
PSD Senator: Parliament of Romania, Senate of Romania (2015a: 127); PNL Senator: Parliament
of Romania, Senate of Romania (2015b: 70); PNL member in the Chamber of Deputies: Parliament
of Romania, Chamber of Deputies (2016).
170 5 Romania’s Nature Conservation Reform: A Surprising Convergence...
by non-governmental organizations.
63
While such economic welfare concerns are
real, and are often raised in local and regional contexts across Romania, the
prioritization of economic growth over environmental protection cannot be a viable
solution. After all, not granting authorizations to projects that have a significant
negative impact on protected natural areas is not a failure, but on the contrary, a
fulfilment of responsibilities in line with the precautionary principle that guides
environmental decision-making, and with the EU’snature conservation acquis.At
the same time, as certain of the counterarguments presented during parliamentary
debates pointed out, this justification of economic growth falls short of explaining
the rationale behind a blanket exclusion of all non-governmental organizations from
the administration of protected areas.
64
The need for strategic transport investments
and infrastructure projects that overlap with protected areas could at most be an
argument for derogatory measures adopted on the basis of project-specific assess-
ments of the implications for nature conservation as opposed to an overriding public
interest. Additionally, any potential delays in the approval or denial of authorizations
for infrastructure projects are circumstantial issues to be dealt with through particular
measures in line with the custody contracts between the ANANP and the NGOs
concerned, leading at most to the withdrawal of those specific custody contracts, but
not to the withdrawal of all custody contracts in general.
Arguably, the priority of economic and infrastructure development and the
support for banning non-governmental organizations from managing protected
areas resulted not so much from a pursuit of personal interests, but rather from a
lack of concern among a large part of the elite with ecological issues. The fairly
limited parliamentary debates around issues related to nature conservation suggest a
rather widespread inattention to environmental protection. This knowledge gap
exists not only at the level of political decision-making, but also at the initial stage
of design, proposal and assessment of the impact of such projects, with civic
planners themselves often lacking the necessary expertise to pay close regard to
environmental considerations in their planning documents.
65
This makes the role
played by non-governmental organizations and their expertise even more relevant.
Luckily the vocal concerns expressed by civil society about the negative impact of
OUG 75/2018 found a positive response in Law 220/2019: an acknowledgement of
the fact that non-profit organizations are an important resource for nature conserva-
tion. The experience, tools and data acquired through scientific work, field work, and
direct involvement with members of local communities cannot easily be replaced by
the ANANP or any other central public authority, as was firmly stated during the
debates in Parliament.
66
63
Parliament of Romania (2018: 3–5); PSD Senator: Parliament of Romania, Senate of Romania
(2018: 12–8).
64
USR Senator: Parliament of Romania, Senate of Romania (2018: 17–8); a PNL and an USR
member in the Chamber of Deputies: Parliament of Romania, Chamber of Deputies (2019a).
65
Naumann et al. (2021: 41).
66
USR member in the Parliament of Romania, Chamber of Deputies (2019a); USR member in the
Parliament of Romania, Chamber of Deputies (2019b); USR Senator: Parliament of Romania,
Senate of Romania (2019: 21–2).
5.2 The Elite’s Pursuit of Societal Interests 171
As this analysis demonstrates, in the field of nature conservation reform the
Romanian political elite often allowed social concerns to come to the fore; while
shaping the reform, representatives largely favoured the interests of those they
represented. Indeed, the measures adopted and the concerns voiced in Parliament
(especially with regard to the need for a more effective conservation of natural
heritage sites) were in accordance with the goals and expectations of the broader
society. Public opinion has shown that Romanians strongly support environmental
action: in late 2017, protecting the environment was an important issue for 87% of
Romanians,
67
while 80% believed environmental issues had a direct impact on their
daily life and health.
68
In the following years the attitudes remained constant, with
87% of Romanians in 2019 considering environmental protection to be important or
very important.
69
It is also worth noting the manner in which the political elite
promoted the interests of local communities through its initiatives and inclusive
approaches, in an attempt to harmonize nature conservation and rural or agricultural
development. Their concern for the economic well-being of landowners affected by
the establishment of protected areas and their focus on establishing compensation
mechanisms is understandable, particularly if one takes into account that at the time
of Romania’s accession to the EU, 2.5 million people were employed in agricul-
ture
70
and were thus more likely to prefer short-term economic development over the
long-term efforts to protect biodiversity.
In sum, it could be argued that in the field of nature conservation Romania on the
whole maintained a positive trend towards Europeanization throughout the post-
accession period, often due to the willingness of the Romanian political elite to push
for a swift transposition of EU legislation. It is certainly true that the legislative
framework remains far from ideal, while Romania’s enforcement performance is still
far from the standards laid down by the European Union. According to a 2017 report
on the conservation status of habitats and species in Romania, habitats have achieved
the best conservation status in the EU, while the conservation of species is the
worst.
71
A 2019 report on Romania
72
raised concerns regarding extensive illegal
logging in the member state, including in Natura 2000 sites; it also noted the failure
of the member state to designate SCIs as Special Areas of Conservation (SAC), no
SAC being designated within the six year deadline imposed by the Habitats Direc-
tive. Thus, unlike in the previous case study, the main obstacle to successful reform
here was the inadequate implementation of laws, which remained an issue, and not
the self-serving behaviour of the political elite which stopped meaningful reforms
from passing into law altogether. In this case, the legislative framework for nature
conservation emerged as a response to EU requirements and—as the literature on
67
European Commission (2017e: 9–10).
68
European Commission (2017e: 28).
69
European Commission (2019a: 1).
70
Mikulcak et al. (2013: 129).
71
European Commission (2017c: 11–2).
72
European Commission (2019b: 11).
172 5 Romania’s Nature Conservation Reform: A Surprising Convergence...
Europeanization predicted—the infringement concerns voiced by the EU; hence, the
EU’s adaptational pressure resulted in gradual refinement of this legal framework.
The main challenge of finding appropriate remedies and striking a sustainable
balance between nature conservation and socio-economic development remained
throughout the post-accession period. Even when economic interests came to the
fore, there was no clear sign of opportunistic behaviour surrounding the adoption
and refinement of nature-conservation legislation; rather, political discourses and
action showed an attempt to pay attention to the sometimes conflicting needs of
nature conservation and economic welfare.
5.3 The Strong Impact of Civil Society
The largely Europeanizing trend of nature conservation legislation, and the gradual
refinement or re-adjustment of the laws during Romania’s post-accession period, is
inextricably linked to the emergence of a strong environmental civil society. The
state’s low administrative capacity, which led to the adoption in 2007 of a
decentralized management system for protected areas, also led to an empowerment
of civil society in the field of environmental protection. The fast expansion of nature
conservation areas (both in number and in size) made their management challenging,
especially given the state’s insufficient financial and human resources and its lack of
experience in managing such areas. As noted above, this resulted in a wide use of
delegated management and a transfer of power from the Government to various
governmental and non-governmental organizations, at least until 2018 and the
adoption of OUG 75/2018. Conserving habitats and species in a system of devolved
management provided civil society with the opportunity to contribute directly to
protected area governance for many years, which strengthened ties between public
authorities and the environmental civil society, and also between the natural envi-
ronment and the people.
Indeed, the adoption of this system of governance in 2007 translated into
increased public participation in environmental protection and environmental deci-
sion-making.
73
Not only could decisions be made locally, but often they were made
by people with local expertise who were fully in touch with the needs of the
communities and the challenges faced by nature conservation sites. Moreover,
local organizations proved better equipped to engage the broader public,
74
providing
the latter with the chance to voice its concerns, and increasing local awareness and
involvement. The multi-stakeholder campaign “Let’s Do It, Romania”
75
—a civil
73
Manolache et al. (2017: 30).
74
Stanciu and Ioniță(2014: 122).
75
This initiative is part of the movement “Let’s Do It, World”, which engages over 20 million
volunteers in more than 150 countries who clean up illegal waste during the World Cleanup Day
(according to data available at https://www.letsdoitworld.org/about/overview/, accessed
6 August 2018).
5.3 The Strong Impact of Civil Society 173
society-led mass movement in which people come together to clean up, in only a
day, the entire country—is worth mentioning here, not only for its success in
improving waste-management and providing incentives to maintain a clean envi-
ronment, but more importantly for its success in engaging a large number of
participants. Over 200,000 volunteers participated in 2010 in this nation-wide
initiative to make public areas litter-free, and by 2011 the figure rose to 300,000
volunteers.
76
With an average of about 200,000 participants mobilized every year on
World Cleanup Day, “Let’s Do It, Romania”is a great example of the emerging
commitment to environmental volunteering in Romania. A mobile app launched in
2015 has increased people’s participation even further: currently, thousands of
volunteers report illegal waste disposals by marking littered areas on a map; user
reports are translated into formal complaints by “Let’s Do It, Romania”team
members, which alert authorities and monitor their response.
The very same system of devolved management of protected areas encouraged a
restructuring not only of the relationship between civil society and the general
public, but also between the elite and civil society. Contrary to the previous
case—in which the relationship between civil society and the political elite steadily
deteriorated during Romania’s post-accession period—environmental civil society
moved somewhat closer to the political elite as a response to the latter’s openness in
allowing non-governmental organizations to play a crucial role in the administration
of nature conservation areas. Shortly after Romania’s EU accession, environmental
civil society organizations assisted the government in completing the lists of
protected natural areas (based on strictly scientific criteria) in an attempt to meet
the requirements established for Romania by the European Commission.
77
This
move could be regarded as an important first step towards establishing an effective
cooperation with public authorities. Indeed, after January 2007, environmental civil
society in Romania gradually diversified its activities: it counterbalanced its watch-
dog role with its partnership role; it shifted away from protest and towards advocacy
(through lobbying and litigating) and most importantly, it shifted towards managing
and monitoring nature conservation. International contacts and memberships in
transnational networks, such as the World Wide Fund for Nature (WWF),
Greenpeace, Friends of the Earth or BirdLife International reinforced this trend.
78
At least in as far as nature conservation is concerned, and with the notable
exception of the period 2018–2019, the political elite seemed inclined to perceive
civil society as a source of support and expertise rather than a threat. Proof of this is
provided by the numerous contracts for custody awarded to civil society organiza-
tions prior to 2018. In 2017, 110 nature conservation sites were handed over to
76
According to the data available on the website of the initiative (https://letsdoitromania.ro/despre/,
accessed 1 Apr 2022).
77
Börzel and Buzogány (2010b: 722).
78
Börzel and Buzogány (2010b: 718–9).
174 5 Romania’s Nature Conservation Reform: A Surprising Convergence...
non-governmental organizations,
79
the number being even higher (166) in 2018
before the adoption of OUG 75/2018.
80
The Federation Coaliția Natura 2000 alone, which has members including WWF
Romania, Romanian Ornithological Society (SOR)/BirdLife Romania, ProPark—
Foundation for Protected Areas, Foundation Conservation Carpathia (FCC), and
Milvus Group among many others, was awarded custody of 10% of the country’s
nature conservation areas. It brought in more than 400 experts
81
from the fields of
policy and advocacy, education, research and awareness-raising. The Federation
(formally an alliance of 20 non-governmental organizations active in biodiversity
conservation with a much broader informal network comprising over 50 organiza-
tions) adopted in its work of protecting Romania’s natural heritage a cooperative
approach that facilitated dialogue between civil society organizations and the polit-
ical elite on the one hand, and among the various civil society organizations
themselves on the other. It successfully complemented its watchdog activities with
direct involvement in identifying and monitoring the status of Natura 2000 sites,
offering expertise directly to local or central authorities or other administrators,
developing awareness-raising campaigns, and strengthening the capacity of other
non-governmental organizations in the field.
82
In November 2016, the Federation
Coaliția Natura 2000, together with the Romanian Ornithological Society,
ProPark—Foundation for Protected Areas, and the Academic Society of Romania
(SAR), initiated a series of public debates about the legislation and the rules
governing nature conservation. Central to these debates was the fact that they
brought together an impressive number of administrators of protected areas, repre-
sentatives of the Ministry of the Environment, members of Parliament and members
of the press in a joint attempt to facilitate the political elite’s access to expertise and
thereby to improve legislative output. As part of the same project, which was entitled
“Let’s make laws for nature together!”, more than 200 draft laws were evaluated and
reviewed. For several of them, the project proposed specific amendments, with
position papers providing expert guidance.
83
More recently, in 2021, a project
entitled “Participatory Governance through Civil Society Involvement in Nature
Protection in Romania”, developed by Coaliția Natura 2000 in partnership with
the Association Pro Democrația Club Brașov, provided environmental non-profit
organizations with assistance to overcome the difficult period following the adoption
of OUG 75/2018. Even though the OUG was declared unconstitutional in 2019 and
its provisions eliminated by Law 220/2019, the damage had already been done:
non-governmental organizations had had all their running contracts annulled and had
also had difficulties reassuming their responsibilities and regaining their rights as
79
Manolache et al. (2017: 29).
80
WWF-România (2018a).
81
WWF-România (2018a).
82
According to the data available on the website of the Federation (https://natura2000.ro/, accessed
01 Apr 2022).
83
Federația Coaliția Natura 2000 Romania (2017).
5.3 The Strong Impact of Civil Society 175
administrators of protected areas. This project was therefore an important step
forward in restoring the broken ties between civil society and legislators. As a result,
at the initiative of the Federation and the Ministry of Environment, a
trans-institutional working group (including political decision-makers as well as
civil-society participants) drafted a series of specific proposals for legislative
changes aimed at repairing the harmful measures adopted in 2018, and also at
improving the financing of nature conservation, upgrading the system for monitoring
and evaluating the efficiency and effectiveness of the management of protected areas
(with improved zoning based on scientific and practical criteria and consultations
with specialists and stakeholders), eliminating over-regulation, increasing
Romania’s level of compliance, strengthening the collaboration with stakeholders,
imposing tighter deadlines, and de-bureaucratizing.
84
ProPark—Foundation for Protected Areas itself maintained a fruitful cooperation
with the political elite. A relevant example in this respect is its collaboration with the
Ministry of the Environment in developing a project titled “Efficient Managers for
Efficient Natura 2000 Network!”,
85
which was aimed at improving Romania’s
territorial planning, and rendering the country more sensitive to concerns surround-
ing biodiversity.
86
The projects and initiatives of WWF Romania’s department of public policies
also played a crucial role in mediating between the interests of citizens or local
communities, and the preferences of the political elite that find form in legislation or
executive action. A highly effective tool in this respect was the online platform
actionez.ro, which offered citizens the chance to directly address public authorities,
voice environmental concerns and stop activities with potentially negative impacts
on nature.
87
Other notable successes were the projects developed by WWF Romania
aimed at facilitating the coexistence between humans and large carnivores, including
improving the monitoring, identification and securing of the network of cross-border
ecological corridors for Brown bears, and the development of an adequate emer-
gency response network to protect both animals and humans. This involved
maintaining intensive communication with political decision-makers to promote
modern species-management concepts and strategies based on data and scientific
84
According to the Report on the Federation’s Activity for 2021, available on Coaliția Natura 2000
website (URL: https://natura2000.ro/raport-de-activitate-2021/, accessed 04 Apr 2022).
85
The project was developed in cooperation with the Ministry of Environment, the EUROPARC
Federation and the Metropolitan Agency for Sustainable Development Brașov. It was implemented
between 2012 and 2015 and was funded by the European Union’s Life+ Communication
programme (according to data available on ProPark’s website: https://propark.ro/en/proiecte/
efficient-managers-for-efficient-natura-2000-network-120.html, accessed 6 August 2018).
86
According to data available on the website of the organization (https://propark.ro/en/proiecte/
efficient-managers-for-efficient-natura-2000-network-120.html, accessed 6 August 2018).
87
The platform was backed by WWF Romania and was launched in 2018 at https://www.actionez.
ro/, it is however no longer available, last accessed 04 Apr 2022.
176 5 Romania’s Nature Conservation Reform: A Surprising Convergence...
methods.
88
In 2021, WWF Romania also offered political decision-makers innova-
tive solutions in response to the infringement procedure launched by the EU against
the member state for illegal logging, while at the end of that year it published its
recommendations for Romania’s National Recovery and Resilience Plan, adopted as
part of the EU’s Recovery and Resilience Facility.
89
Given the fact that in the field of nature conservation, the EU largely favours joint
ventures between state and non-state actors,
90
non-governmental organizations or
coalitions of organizations are perceived by the political elite not only as a source of
expertise, but also as a source of funding. In 2018, more than 200 nature-protected
areas were given in custody (covering approximately 1.6 million hectares of
Romania’s total area), yet without financial support from the central environmental
authority, custodians using privately raised funds.
91
In fact, non-profit organizations
and universities performed more effectively than public authorities in accessing
nature conservation funds,
92
either from EU programmes or other assistance
schemes, which further encouraged the emergence of cooperative relationships
between the elite and civil society. In 2013, Romania was among the European
states with the lowest environmental protection budgets, with less than 0.5% of its
GDP set apart for such activities, while the European average was higher than 0.6%
with the best performer, the Netherlands, investing almost 1.5%.
93
In 2020,
Romania’s expenditure on environmental protection was still around 0.7% of its
GDP, ranking lower than the EU average of over 0.8%, and much lower than
Belgium, Greece, Malta or the Netherlands who each invested more than 1.4% of
their GDP on environmental protection.
94
Without enumerating further instances documenting the successful involvement
of civil society in environmental governance or their success in terms of fundraising,
it suffices here to stress once more the fact that when there are no particular personal
interests to be pursued, civil society is accepted as an ally of the political elite. This
does not mean, however, that environmental civil society has renounced its watch-
dog activities. In fact, the inconsistent procedures, the faulty legislation and the slow
implementation of laws attracted, and continue to attract, the criticism of environ-
mental civil society organizations. Non-profit organizations active in nature conser-
vation are vocal in drawing attention to legislative or administrative shortcomings,
alerting the media or informing European bodies about perceived non-compliance.
88
According to the Report on WWF Romania’s Activity for 2019 available on the website of the
organization (URL: https://wwf.ro/app/uploads/2020/10/Raport-Anual-2019_WWF-Romania.pdf,
accessed 4 Apr 2022).
89
According to the Report on WWF Romania’s Activity for 2020 available on the website of the
organization (https://cdn.wwf.ro/uploads/2021/05/06114934/raport-anual-2020-05-05-21-web.pdf,
accessed 4 Apr 2022).
90
Börzel and Buzogány (2010b: 720).
91
WWF-România (2018a).
92
Manolache et al. (2017: 29).
93
Eurostat Data Base (2015).
94
Eurostat Data Base (2020).
5.3 The Strong Impact of Civil Society 177
They were also firm in their reaction to OUG 75/2018, publicly condemning the
government’s decision, the manner in which it was adopted (without any consulta-
tion with the more than 60 non-governmental organizations directly affected by this
abrupt shift of responsibilities to the ANANP), and pointing out the incapacity of the
agency to streamline the management of such a great number of protected areas. It is
not surprising that the governmental decree adopted in 2018 triggered widespread
criticism from non-governmental organizations (such as the Federation Coaliția
Natura 2000,
95
ProPark
96
or WWF Romania
97
), just as it is not surprising that that
criticism eventually resulted in the repeal of the controversial act in 2019. A few
other examples of the success of civil society in the area of nature conservation
legislation and the enforcement thereof merit attention.
The Federation Coaliția Natura 2000 filed several complaints to the European
Commission, denouncing illegal logging or damaging construction projects that
were affecting Natura 2000 sites. It also successfully lobbied for administrative
changes: its actions resulted in the adoption of measures increasing the number of
administrative staff employed at both the central and regional levels that is respon-
sible for designating and managing protected areas.
98
In 2015, the Coaliția Natura
2000, together with the Romanian Ornithological Society, successfully opposed
legislative changes to the hunting law, amendments which would have endangered
the existence of several species.
99
Furthermore, in 2021 the Federation supported the
OTUS Association in securing a positive court judgement in which all hunting was
prohibited for migratory birds under the Governmental Order 1460/2021. At the
same time it was active in providing the Constitutional Court with thorough assess-
ments of data, scientific evidence and legal arguments in support of its decision
regarding Romania’s Hunting Law. It also took a stand, together with WWF
Romania, ACDB, Milvus Group and FCC in improving the management of certain
species, such as the Brown bear, protected under EU law, and is planning a major
advocacy campaign for the amendment of the nature conservation legislation to roll
out in 2022.
WWF Romania has also played a strong advocacy role. It was particularly active
and vigilant in preventing the construction of micro hydropower plants along small
mountain rivers, and eventually eliminated the possibilities for such investments to
be financed through Structural Funds in the 2014–2020 programming period.
100
In
2011, WWF Romania led an effective campaign to save Romania’s virgin forests. It
launched a petition which was signed by 100,000 supporters, which lead in 2012 to
the adoption of a governmental decree which defined virgin forests and established
95
Federația Coaliția Natura 2000 Romania (2019).
96
ProPark –Foundation for Protected Areas (2018).
97
WWF-România (2018b).
98
Börzel and Buzogány (2010b: 721).
99
USAID (2016: 197).
100
USAID (2014: 182).
178 5 Romania’s Nature Conservation Reform: A Surprising Convergence...
criteria for their identification, as well as strict conservation measures.
101
By its side,
Greenpeace Romania also pushed for the protection of virgin forests as part of its
much wider campaign for the conservation of Romanian forests. Broadly speaking,
this vast and effective campaign was aimed, and still aims, at preventing illegal
logging, supporting sustainable forest management, restoring and improving wood-
land biodiversity, and proposing forests for inclusion in the international UNESCO
World Heritage List.
102
A number of effective tools were developed and gradually improved during these
campaigns against illegal logging: the Integrated Information System for Wood
Tracking (SUMAL) was initiated in 2008, and was later made more efficient through
the Wood Tracking System developed in 2014; the online platform
inspectorulpadurii.ro (Forest Inspector) was later upgraded through the launch of
the mobile app Forest Guardians; and the improved SUMAL 2.0 was launched in
2021. These systems were launched by the Ministry of Environment in response to
the initiatives of Greenpeace Romania, WWF Romania and other environmental
organizations, and allowed citizens to verify the legal status of any timber transport
and directly report any cases of deforestation.
103
The Ministry often discontinued its
support for these instruments and their further development, which forced
non-governmental organizations to rely on their own resources and raise funds to
support the continuation of the systems that currently enable the public to monitor
forests using satellite imagery, to report suspicious logging activities or to verify the
legality of timber transports.
104
In 2021 WWF Romania identified a further improve-
ment needed to cover the loopholes in SUMAL. The organization called for the
development of SUMAL 3.0 in order to prevent the wood in Romania being sold on
the basis of a rough estimation of the volume of the standing trees (with errors that
can exceed 20%), and to encourage the verification of all transports that leave the
forests, in addition to the already existing obligations that had to be met when the
wood is placed on the market.
105
Equally notable is the fact that, in 2016,
Greenpeace, together with Bankwatch and 18 landowners, reversed the abusive
expropriations in Runcurel Village
106
by suing the government, or the fact that, in
101
According to data available on the website of the organization (http://www.wwf.ro/despre_wwf/
wwf_in_ romania/, accessed 6 August 2018).
102
According to data available on the website of the organization (http://www.greenpeace.org/
romania/ro/ campanii/paduri/, accessed 6 August 2018).
103
USAID (2017: 195).
104
A detailed description of the Forest Guardians app is available on the website of Greenpeace
Romania (URL: https://www.greenpeace.org/romania/implica-te/forest-guardians/, accessed
5 Apr 2022).
105
According to an Opinion Statement available on WWF Romania’s website (URL: https://wwf.
ro/app/uploads/2021/04/SUMAL-2.0s-Failure.pdf, accessed 04 Apr 2022).
106
USAID (2017: 194).
5.3 The Strong Impact of Civil Society 179
2020, WWF Romania began a 3-year collaboration with prosecutors and investiga-
tors in 11 countries to combat illegal activities that violate wildlife laws.
107
Remarkable in this context is not only civil society’s capacity to influence
political and legislative outcomes, or to file court cases in environmental matters,
but also its power to mobilize the broader public in holding political elites to account.
Not only did non-governmental organizations develop online platforms allowing
citizens to interact directly with authorities, or offer legal training for citizens
interested in defending their right to a clean environment in court,
108
but they also
organized demonstrations aimed at denouncing vices of the law, abuses of the
political elite or projects deviating from Romania’s nature conservation goals. As
early as 2012, environmental civil society launched important and widespread pro-
tests aimed at stopping the exploration and exploitation of shale gas in Romania. As
a result, the then Prime Minister and the Minister for the Environment decided to
extend the moratorium on the exploitation until further research was completed.
109
This movement, however, was only the beginning; more virulent protests were to
come, opposing the mining project in Roşia Montanăin northern Romania.
The mines in Roşia Montanăwere to comprise the largest open cast mining site in
Europe; approximately 300 tons of gold and 1600 tons of silver were intended to be
extracted using cyanide-based technology.
110
. The opposition to this mining project
began as early as 2000 with the establishment of the now well-known Alburnus
Maior Association,
111
which gradually developed into a motor and an icon of the
campaign to save Roşia Montană. Over several years, Alburnus Maior led numerous
demonstrations and lobbying activities, wrote petitions, initiated actions in court,
held seminars informing the local community about alternative economic activities
to mining, hosted cultural events, and in this way succeeded in postponing the
launch of the mining project.
112
In September 2013, however, the Romanian gov-
ernment approved the project, dependent upon a vote in Parliament. This decision
provoked the largest environmental protests yet in Romania. Thousands of protesters
spoke out to prevent the potential environmental damage the project would cause
and the destruction of highly valuable historical sites. They showed an unprece-
dented solidarity with the people in Roşia Montană, defending not only their right to
a clean environment, but also their right to private property, their right to cultural
heritage, and also their right to free expression of opinion. These protests were
unique in their peaceful character, in the resilience and creativity of the participants,
107
According to the Report on WWF Romania’s Activity for 2020 available on the website of the
organization (https://cdn.wwf.ro/uploads/2021/05/06114934/raport-anual-2020-05-05-21-web.pdf,
accessed 4 Apr 2022).
108
WWF-România (2017).
109
USAID (2013: 163).
110
Verseck (2013).
111
More information on the association and the entire campaign are available at: https://www.
rosiamontana.org, accessed 6 August 2018.
112
According to data available on the website of the organization (https://www.rosiamontana.org/
node /1885?language¼en, accessed 6 August 2018).
180 5 Romania’s Nature Conservation Reform: A Surprising Convergence...
but also in their unexpected success in keeping the mining project on hold. As a
matter of fact, later in 2016, after sixteen years of campaigning against this gold
mining project,
113
the Romanian Ministry of Culture initiated the process of adding
Roşia Montanăto the UNESCO World Heritage List. In 2021, UNESCO finally
named the ancient Roman gold-mining-area of Roşia Montanăa world heritage site,
which made the mining project practically impossible to move forward. The rele-
vance of the movement to protect Roşia Montanălay not only in its ability to protect
the site and its natural environment, but rather in the major influence it had on the
future development of civic engagement. The environmental protests of 2013
triggered a broader public engagement and further actions undertaken by citizens
against the abusive behaviour of the political elite in other fields. This trend
culminated in the widespread demonstrations of February 2017, which counted
over 500,000 protestors urging the government to sustain its commitment to anti-
corruption reform.
114
This review of Romania’s nature conservation reform, and the role played by the
political elite on the one hand and civil society on the other, reveals a largely linear
trend of increasing compliance with EU requirements. It demonstrates that EU
membership, may—when the political will is aligned—encourage positive legisla-
tive changes and a higher stability of reform. It thus provides a valuable example of a
policy field in which the political elite was motivated in its action less by self-
interest, and more by a need and an interest to co-operate with civil society in
developing and implementing legislation. As illustrated above, the rationale for
delegating power to civil society organizations was indeed instrumental, and derived
not so much from normative or substantive concerns; it was the only way in which
Romania’s nature conservation objectives could be achieved and infringement pro-
cedures and sanctions be avoided. But this instrumentality notwithstanding, the
result was the promotion of delegated responsibility and a decentralized manage-
ment of nature conservation areas; on the one hand, through an enhanced protection
of habitats and species in line with the European Nature Directives, and on the other,
through the empowerment and growth of environmental civil society, which itself
contributed to an increased level of public engagement in support of environmental
causes. After all, a functional partnership and commitment among all stakeholders—
including actors at the EU level, national, regional or local authorities, civil society
organizations, landowners and local communities—is crucial in achieving the
required level of protection for habitats and species and a prerequisite for developing
a coherent network of protected areas.
115
The evaluation of the legislative performance of the Romanian political elite in
the field of nature conservation may have shown a questionable use of legislative
procedures similar to that observed in the previous case study of justice and anti-
113
OpenPolitics.ro provides a detailed timeline of the case, available at https://www.openpolitics.
ro/timeline-rosia-montana/, accessed 6 August 2018.
114
The Economist (2017).
115
Naumann et al. (2021: 73).
5.3 The Strong Impact of Civil Society 181
corruption reform, but this time it was coupled with a far higher level of responsi-
bility and responsivity to societal concerns which clearly contrasts with the findings
of the previous case. Furthermore, the greater involvement of civil society in the
conserving and protecting of Romania’s biodiversity has brought non-governmental
organizations a step closer to the public authorities and to each other. The develop-
ments in nature conservation legislation thus not only paved the way for a gradual
improvement of the legislative framework in that area, but also led to an empower-
ment of civil society in general, which is now better equipped to re-negotiate and
forestall any attempts at de-Europeanization. Romanian citizens, with the support of
civil society, grew more aware of their interests and their rights, and proved
increasingly ready to hold political decision-making to account and call for good
environmental and democratic governance.
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182 5 Romania’s Nature Conservation Reform: A Surprising Convergence...
Chapter 6
Conclusion: Civism Against Cynicism
Men exist for the sake of one another
(Marcus Aurelius)
This book started from a puzzling empirical observation: that Romania abruptly
reversed its public integrity and anti-corruption reform right after its accession to the
European Union, while it carried on with Europeanization in other reform areas. The
high priority the EU attached to the adoption of anti-corruption policies was clearly
not sufficient to trigger lasting commitment, and many of Romania’s pre-accession
reforms were overturned once accession was complete. Political elites intentionally
relaxed legislation, delaying judicial decision-making in cases of high-level corrup-
tion, hindering the investigation of abusive practices, and diminishing the sanctions
against public officials failing to comply with the provisions of public integrity laws.
Contrary to what we might expect from this, things have proved very different in the
field of nature conservation, where European impulses for change resulted in a
largely linear increase in compliance with the acquis communautaire. As we have
seen, this apparent contradiction can be resolved by showing that reform instability
heavily depends on the extent to which political elites are inclined to instrumentalize
law-making and legislate in pursuit of personal gains.
This adds an individual dimension to Europeanization. Too heavily focussed on
institutional factors and on compliance-inducing instruments, and paying too little
attention to political actors and their interests, much Europeanization literature fails
to account for the role played by individual decision-makers in domestic reforms. It
is blind to the dangers posed by fragmented self-serving political elites, who are
capable of altering the course of reform by deviating from both the public interest
and European requirements. A closer consideration of the elite’s motivations and
strategies at the domestic level can provide much deeper insights into post-accession
compliance. Thus, we can account for Romania’s reform reversal in the field of
public integrity and the fight against corruption by providing evidence of legislative
behaviour at the highest levels of policy-making that shows how a highly fragmented
domestic political elite pursues private gains by diluting the legislation in force. At
the core of the argument was the reconfiguration of the idea of domestic interests: a
shift in focus from group, party or societal interests, towards the private interests of
©The Author(s) 2022
L. Martin-Russu, Deforming the Reform, Contributions to Political Science,
https://doi.org/10.1007/978-3-031-11081-8_6
183
the elite, the pursuit of which was revealed to lead to de-Europeanization. After all,
why would an allegedly corrupt political elite be anything but self-serving; why
would it be genuinely committed to adopting sound anti-corruption reform? Why
would we expect a problem to be solved by those who are themselves part of the
problem? At this point, these questions may seem to be rhetorical, but they are not.
Being aware of the inherent flexibility and reversibility of laws, and of the potential
for Europeanizing reforms to suffer setbacks under the influence of a self-interested
political elite is the first step towards responding appropriately. Anticipating such
U-turns provides stimulation for the search for potential solutions that would
improve the stability and sustainability of reforms. EU post-accession conditionality
clearly falls short of being (at least by itself) the solution for discouraging elites from
engaging in abusive practices. As we have seen, the empowerment of civil society
and the stimulation of broader societal engagement both gave Europeanization a
better chance of success.
Romania’s use of inconsistent and at times ambiguous law-making procedures
led to unnecessary delays, uncertainties and undesirable legislative parallelisms. In
both areas of reform under analysis here, different legal provisions with the same
object of legislation were often kept in force, which generated confusion with regard
to the proper application of these laws. Still, Romania’s legislative output and its
compliance record documented significantly better performance in the area of nature
conservation than in integrity and anti-corruption reform. These findings challenge
the standard assumption in the literature that non-compliance is due to a lack of
capacities and know-how. The evidence indicates that despite similar institutional
conditions and a widespread use of faulty procedures, some EU-led reforms may be
progressing while others are overturned. In the field of nature conservation, unlike in
the domain of public integrity, the political elite proved able to overcome institu-
tional shortcomings, correct flawed procedures, and gain access to expert knowl-
edge, in order to maintain a largely positive trend of Europeanization. It even paved
the way for the direct involvement of environmental civil society in the development
and implementation of legislation, for the same aim of strengthening its ability to
cope with EU-driven reforms. This confirms the fact that Romania’s selective
Europeanization is less a matter of EU conditionality, limited institutional capacities
or inadequate resources, and more a matter of political will—both to drive reforms
forward and to allow civil society, and thus the general public, to take part in these
reforms.
Although the argument presented here might have emphasized reform reversal
and de-Europeanization, downplaying the progress made during Romania’s acces-
sion and post-accession period, this is not a book about European disintegration. It is
ultimately oriented towards explaining the relationship between the interests pursued
at the domestic level and the stability of EU-driven reforms. While a self-serving
corrupt political elite may have few incentives to introduce strict laws to curb
corruption, a strong civil society and broad social mobilization might limit state
capture and re-establish the democratic balance, ensuring a higher responsiveness of
the elites to European and societal preferences.So there is hope for a deep and stable
harmonization of domestic and European standards if they are supported by a
184 6 Conclusion: Civism Against Cynicism
dialogue not only at the level of political decision-makers, but by a dialogue that
involves democratically minded citizens, committed to the common good and
supportive of good governance. Improving the capacity of civil society—and in
this way of the broader public—to participate more effectively in policy formulation
and implementation would make Europeanization more stable and allow for genuine
reform. This lesson is an important one that the EU has learned, but still falls short of
applying in its attempts to foster compliance in Central Eastern and South-Eastern
Europe.
6.1 The Dynamics of De-Europeanization
6.1.1 Theoretical Reflections
The theoretical model advanced in this book explained post-accession de--
Europeanization in Romania with reference to the role of elite interests. It did not
inquire into the overall extent of Europeanizing change, nor did it identify factors
that lead to a positive compliance record. Instead, it focussed on the disruption of
reforms and reversal of legislation that was already in place. The empirical results for
Romania have shown that clear instances of de-Europeanization can be identified
even if they are not always evident at first sight, and even if they are not discussed in
the Commission’s monitoring reports or do not warrant infringement accusations. In
many cases, subtle changes to the wording of legislation had major effects, resulting
in the member state failing to comply with the general principles and objectives of
European law while still being seemingly compliant. Much of the scholarship on
Central Eastern and South-Eastern Europe fails to provide a compelling explanation
for this phenomenon beyond the description of all-encompassing ‘simulated’
Europeanization. By empirically examining the actual details of reform, this book
developed a more specific idea of simulated domestic change and policy camouflage.
It showed how EU-driven reforms can be kept in place and continue to operate,
while the political elites introduce changes which make them ineffective and pre-
carious. In this manner, domestic decision-makers can overturn uncomfortable
policies while claiming to have given due consideration to European requirements
and norms. Through an in-depth analysis of Romania’s legislative developments and
legislative intent, developed over more than a decade into the state’s post-accession
period, it is possible to disclose such patterns of abusive behaviour, that are hidden in
settings generally considered to be rule-bound, fair and transparent. This fine-
grained longitudinal study of de-Europeanization alerts scholars to the shift from
overt to more discreet forms of abuse, and stresses the importance of identifying
(ideally at an early stage) the subtle ways in which political elites reverse legislation
and weaken the legislative framework. The careful in-depth observation of all the
steps undertaken in the process of transposing European norms and of revising
legislation can go a long way towards identifying instances (even though apparently
isolated) of reversal and in using them to reveal systemic infringements over time.
6.1 The Dynamics of De-Europeanization 185
At the core of this study was the clear distinction between resisting and reversing
Europeanization. While the literature in the field has long anticipated and discussed
the possibility that new member states could resist implementing further reforms
after their accession to the EU, the majority of scholarly texts still shy away from
conceptualizing and theorizing reform reversal. Instead of emphasizing the inherent
stickiness and the lock-in of domestic reforms, this book presents a model of
de-Europeanization built on the idea that European directives transposed into
domestic laws are essentially unfixed and constantly subject to change. It is in the
nature of a law to be amended. Viewed in this light, the role played by domestic
political elites (able to amend legislation) was thought to extend beyond the formal
adoption of the acquis communautaire: their conduct, their political will and their
European commitment were regarded as indispensable to the genuine transposition
of EU laws. On these grounds, the theoretical model constructed here proposed a
study of de-Europeanization centred on the behaviour and the interests of the
domestic political elite—those actors who can break away from European require-
ments and who, as the findings of this research showed, can (at will) overcome any
structural or institutional barriers in order to achieve their aims.
While acknowledging the importance of institutional structures, it was necessary
here to adopt an instrumentalist rather than an institutionalist approach, regarding
institutions more as tools through which policy-makers can realize their goals, with
elites playing a critical role in shaping and changing a state’s institutional design.
The novelty of this model lies in the fact that it is able to explain de-Europeanization
by bringing into the equation an element that is largely neglected by existing
research: the interests pursued by the domestic political elite. By linking
Europeanization literature with studies on democratic leadership, a more compre-
hensive analysis of post-accession non-compliance can be provided.
Viewing political representatives as agents entrusted by those they represent to
establish legality and adapt domestic laws to European standards implies that
the quality of the adopted legislation inevitably depends on the interests pursued
by the lawmakers and the extent to which these interests correspond to societal needs
on the one hand and European requirements on the other. But can we expect political
elites to be responsive and responsible towards their electorate and therefore act in
pursuit of the common good? Do their values and preferences converge with those in
the wider society? In contexts where high-level corruption is the norm rather than the
exception, most likely not. In such contexts, political elites are inherently prone to
abusing their power in an attempt to gain benefits for themselves, regardless of the
social costs of their action. Following this reasoning, the present book was premised
on an assumption largely disregarded in Europeanization literature, namely that the
interests pursued by the political elites in the process of EU-driven reform may run
counter to societal needs and expectations. This approach excludes the very idea of
domestic interests or cost-benefit calculations. The theoretical model proposed here
opened the black box of how EU requirements are incorporated into the national
legislation, by focusing on individual preferences that motivate each and every
provision or amendment. The logic of domestic costs and benefits of
Europeanization, determined overall for the member state, was here replaced by a
186 6 Conclusion: Civism Against Cynicism
logic of costs and benefits arising for each member of the domestic political elite,
who, in a state corroded by high-level corruption, may indeed be tempted to make
calculations of a more personal nature. This rationale was based on an understanding
that corrupt political elites are likely to exploit an opportunity for legislative abuse
when the benefits outweigh the expected costs. In an environment of generalized
corruption the expected costs of legislative misbehaviour are indeed very low, with
fellow-elite members disinclined and nonelite members discouraged to speak up
against misconduct. The examination of the ways in which a self-serving behaviour
of the domestic political elite does indeed interfere with the course of reform takes us
a step forward in understanding why the legal reality in Eastern European member
states like Romania changed abruptly after the state’s accession to the Union, but
only selectively, in certain areas of reform and not in others.
6.1.2 Conceptual Discussion
The model presented above used concepts that previous research has not defined
(or has only defined to a limited extent). Embedded in theories and investigated
empirically, de-Europeanization and personal interests were here operationalized
and measured, with conclusions derived as to their explanatory value.
As the central focus of the research, de-Europeanization demanded as a prereq-
uisite a clarification of the term. As understood here, de-Europeanization is a formal
reversal of domestic reforms following an initial harmonization of national laws with
European norms and standards. The concept was limited to changes in legislation; it
referred strictly to the legislative output and the domestic transposition of European
laws, and not to the enforcement or to the institutionalization of norms. This narrow
understanding of the concept made it possible to isolate more accurately and
precisely the instances of de-Europeanization, their causes and the corresponding
adaptational pressure exerted by the EU. Indeed, wider issues such as the long-term
capacity for enforcement or the potential for the institutionalization of these reforms
could not be addressed; still, this conceptualization provided a very insightful
method to account for non-enforcement or non-institutionalization. Gaps and incon-
sistencies in the transposition of laws are in fact the primary causes, at least in
Romania, of implementation and institutionalization failure. Secondly, it is worth
noting that de-Europeanization as employed here used the level of ex ante achieved
reform as a benchmark for measuring reform reversal. Each legislative provision in
the reforms reviewed was observed and assessed in relation to its previous forms and
in relation to the requirements set by the European Union. The empirical results took
note of the expected European standards, but more importantly, they took into
account domestic developments, identifying the provisions which were kept intact,
expanded or restricted by the subsequent amendments of the legislation. By using
the previously achieved level of domestic change as a standard for measuring
reversal, the analysis was more easily able to remain objective and refrain from
6.1 The Dynamics of De-Europeanization 187
passing judgements as to whether the reforms in question achieved a satisfactory
level of Europeanization or not.
In the empirical study, de-Europeanization was shown to depend on the pursuit of
personal interests by the domestic political elite, and in order to better serve the
scope of the present research the concept of personal interests was itself defined
narrowly as insulated from societal interests. The pursuit of personal interests by the
political elite was in this case understood as a pursuit of individual gain involving an
intentional disregard for societal concerns. This definition of personal interests as
inherently opposed to the pursuit of any societal interests allowed for a more reliable
assessment of the elite’s self-serving behaviour. The personal interests of the polit-
ical elite as understood here intentionally excluded those political decisions that
accommodate societal preferences (of certain groups or of the entire society), being
reduced only to those motivations that shape legislative practices and yet have no
correspondence to any interests in the public sphere. The intention was to single out
precisely those legislative changes for which no social groups openly expressed
support (i.e. favouring corruption). The extent to which the elite acted in a self-
interested manner while adopting such law amendments was measured through an
examination of the elite’s chosen courses of action, the justifications provided, the
voting patterns and the degree to which the adopted legislation diverged from any
societal needs and wants. This approach produced insights into the nature of the
interests motivating legislative choices and thus also provided valuable lessons with
regard to the elite’s responsiveness and its tight or loose linkage with the nonelite.
Since personal, rather than group or societal, interests appeared to be pursued
only in a context in which political elites are at odds with one another (both within
and across different political parties or between and within different state institu-
tions), the concept of fragmentation, borrowed from the scholarly literature on elites,
greatly contributed to assessing the self-serving bias of public officials in the process
of Europeanization. A high fragmentation of the political elite (mirroring a high level
of disintegration in the elite stratum) was found to have crucial consequences for the
quality of legislation, for the efficiency of policy-making, for the overall stability of
the democratic system and ultimately, also for the stability of Europeanizing
reforms. The reasoning behind this analysis of fragmentation was the fact that
legislative choices are not made in isolation, but take place as part of institutional
interactions with dynamics that affect the behaviour of lawmakers. Pursuing social
goals while legislating also means trusting that others will do the same and that the
broader society will eventually benefit from this pursuit; upholding the public
interest while legislating means trusting the system and the fact that all fellow
legislators uphold certain norms, values and rules of the democratic game. However,
when domestic politics is characterized by mutual mistrust, aversion, and a deeply
rooted lack of solidarity and value consensus, it leaves lawmakers with less incentive
to pursue the common good and leaves Europeanization with little chance of
success. This makes a thorough analysis of the level of integration or disintegration
of the elite highly relevant to the study of Europeanization. As the empirical results
above have shown, a high level of fragmentation of the ruling stratum makes reform
reversal more likely, which leads to lower legislative efficiency and a lack of
188 6 Conclusion: Civism Against Cynicism
responsiveness to societal preferences. In a context of high elite fragmentation, the
role played by a strong civil society becomes even more relevant as a factor
promoting legislative stability and reliability, ensuring reforms remain aligned
with broader societal interests.
6.1.3 Limitations and Future Research
The variables in this model were built with a specific context in mind: that of
relatively high-level corruption, which makes political elites more likely to pursue
personal rather than societal interests. From this point of view, the findings presented
here are easily applicable to other similar domestic settings in which corruption
continues to weaken the elite’s respect for the rule of law and widen the gap between
representatives and represented. In such contexts, the relationship between the self-
serving behaviour of political elites and reform reversal is likely to persist. Never-
theless, the determining factors identified are not limited to the Romanian context,
and it would indeed be very interesting to test the more general applicability of this
model in a very different setting—for example, in a strongly consolidated democ-
racy—in order to verify to what extent, if at all, other political elites are prone to
make self-serving laws, and how far they are dissuaded from such practices by a
powerful sectoral civil society.
In its identification of factors which explain reform reversal, this study was not
meant to be exhaustive. It examined one main variable (the pursuit of personal
interests of the political elite) which was considered to provide the most insight into
the case of Romania. However, law-making and thus Europeanization does not
happen in isolation, and providing an explanation of de-Europeanization as a result
of the elite’s instrumental use of the legislative framework also involved taking into
account the role played by specific structural conditions that invited this self-serving
behaviour. Thus, it was necessary to examine the specificities of the Romanian
institutional and social context, with its highly fragmented ruling stratum and
differently empowered sectoral civil society actors. Additional studies may shed
further light on the correlation of these factors in other member states with different
institutional and social settings.
The empirical analysis above focused on two policy areas: Romania’s integrity
and anti-corruption reform, and its nature conservation reform. In these two fields,
the member state faced an equally high transposition challenge and equally high
pressure for convergence from the EU; the two fields differed, though, in the way
they attract a pursuit of personal interests by the domestic political elite, which
inhibited in one case and allowed in the other the empowerment of civil society. It
proved challenging to find two cases with a high variation in the explanatory
variable. In states where high-level corruption is a common phenomenon, it can
indeed be difficult to find a policy area which allows for no pursuit of personal
interests by the political elite; in the most various areas of reform, individual
economic motivations may dominate societal incentives and the common good.
6.1 The Dynamics of De-Europeanization 189
This indeed may pose a real challenge, but at the same time, it may point to an
interesting subject of inquiry for future research: What are the reform areas free from
the elite’s selfish considerations of personal gain?
The main finding was that the self-serving behaviour of domestic political elites
matters for the stability of reform and the sustainability of Europeanization. This
does not imply that political elites never legislate on behalf of their voters or never
respond to societal concerns; rather, it implies that if—as seldom or as often as this
may be the case—elites pursue personal rather than societal interests, reforms are
likely to be heavily compromised.
The notion of personal interests certainly posed conceptual and methodological
difficulties, as individual preferences can hardly be observed or measured directly.
As mentioned above, in order to resolve some of these problems, the concept of
personal interests was narrowed down to mean a pursuit of preferences unsupported
by any societal concerns. This narrow definition is almost tailor-made to make the
reader aware of the contradiction inherent in Romania’s reversal of anti-corruption
reform: with corruption being almost universally condemned, it is impossible to
justify a relaxation of anti-corruption measures by reference to arguments rooted in
public interest. Such an approach to personal interests, while very useful for
explaining instances where elite and nonelite interests clearly diverge, is limited in
its capacity to account however for instances in which a self-serving behaviour of the
political elite nevertheless results in legislative output that serves the common good.
This model thus falls short of handling cases in which representation is not genuine,
but in which the result of the reform responds—to a greater or lesser extent—to the
needs and wants of the society; it cannot explain cases of populism or other forms of
partisan politics motivated only by electoral returns and their impact on
Europeanization. These subjects are far beyond the scope of this work. However,
future research could refine the concept of personal interests to address in more detail
the issue of genuine representation and its impact on the stability of Europeanizing
reforms.
6.2 Anchors of Europeanization
This study explained Romania’s de-Europeanization in the field of public integrity
and anti-corruption after January 2007. In doing so, the goal was not only to produce
a richer understanding of the domestic factors reversing Europeanization, but also to
emphasize the strengths that might help states to achieve a higher sustainability of
reforms and to legislate in a manner more consistent with European norms and
standards. This book delivered an assessment of Romania’s reform inconsistencies
caused by a self-serving behaviour on behalf of the political elite, behaviour which
could only be curbed by civic mobilization and an active civil society. After all, in a
context of widespread disregard for the rule of law, problems such as the instru-
mental use of the democratic framework for personal benefits can hardly be
addressed through law alone, but need external pressure, not only exerted
190 6 Conclusion: Civism Against Cynicism
downwards from the EU to the member states, but also upwards from the society to
the political elite.
The perceived wrongdoing in the adoption of self-serving laws apparently
decreases with the distance between legislative choice and the harm caused by that
choice. The harm involved in the reversal of anti-corruption reforms is hardly
visible, being systemic in nature and far removed from the legislative action.
Narrowing the gap between self-serving action and harm may go a long way in
reducing the potential for reform reversal. Indeed, as the second case study above
showed, widening the scope for meaningful involvement of civil society in the
promotion of good governance (or good environmental governance) translated
European adaptational pressures into genuine domestic reforms. Civil society played
a key role in ensuring that elites and nonelites remained largely congruent in their
values and priorities in nature conservation. Its success in holding elites accountable
and in line with European law was only possible through an effective partnership and
collaboration with political elites, whose lack of institutional and administrative
capacity required support from the environmental non-governmental sector.
This case revealed a reality at odds with the expectation that limited capacities
lead to non-compliance; it was precisely the lack of capacity that led, through the
involvement of civil society actors, to a gradual improvement of EU-driven reforms.
The elite’s decision to engage in collaborative policy-making and implementation
with the participation of the non-profit sector allowed citizens to pursue their
interests through the actions and reactions of civil society, promoted the latter’s
growth and gradually strengthened its voice. Non-profit organizations in the field of
nature conservation took an active part in environmental governance, assured the
implementation of legislation, aggregated and communicated societal interests and
preferences, and also subjected the elite’s legislative practices to public scrutiny.
Any attempt to diverge from the public good or from the European requirements in
the field was met with severe objections from a vibrant civil society that demanded
accountability for flawed legislation, notified the European Commission of cases of
infringement of the acquis, and mobilized broad public support for the protection of
environmental rights. It contributed to the development of mechanisms for oversight,
shaped expectations of the represented with regard to the decisions of the represen-
tatives, and set a precedent for the nonelite to react when its political leaders
legislated in manners detrimental to the common good. These research findings
stress yet again how crucial an engaged and empowered civil society is for the
development and sustainability of reforms, not least due to its role in closing the gap
between policy choices and the impact they produce. Civil society’s stabilizing and
democratizing effect should be recognized and enhanced at both the domestic and
the European level.
The development of concrete frameworks and mechanisms for collaboration
between lawmakers and civil society could be itself part of a member state’s
conditionality package. Too little emphasis has been placed on the importance of
civil society and civic engagement for enhancing pre- and post-accession compli-
ance in Central Eastern and South-Eastern Europe. The EU did not react to those
restrictive legislative proposals which imposed disproportionate reporting
6.2 Anchors of Europeanization 191
requirements on Romanian civil society and curtailed its right to criticize political
parties or their candidates, nor did it give an opinion with regard to the frequent
endeavours of the political elite to delegitimize critical non-governmental organiza-
tions by targeting the latter with denunciations and accusations of supporting foreign
influences in undermining national identity and values. If the EU was to defend
domestic civil society organizations against such repressive measures, and if the
protection of European civic space were to become a specific objective, the Union
would certainly be better equipped to ensure the observance of its law, of the rule of
law and the protection of the fundamental rights of its citizens. Forging closer
partnerships and encouraging the creation of spaces for dialogue between political
decision-makers and civil society would only benefit the Union’s efforts to ensure
post-accession compliance. An improved European framework for providing finan-
cial and legal support to non-profit organizations could assist new member states in
meeting the commitments they made upon their accession, assure a better correlation
of European and domestic expectations, and bring the EU closer to its citizens. EU
support for an empowered domestic civil society with better access to domestic
policy-making would be all the more necessary in order to prevent other European
democracies from setting out on a de-Europeanizing path. In this respect, a good
place to start could be an assessment and harmonization of NGO legislation across
EU member states. In this way, the EU would hold its Central Eastern and South-
Eastern European member states to high standards of democratic representation and
rule of law, and give reforms a much higher chance for success, by supporting an
increased amount of bottom-up pressure from their respective societies that would
complement its own top-down demands for compliance. In this sense, the present
book can serve as a cautionary tale about the naivety of expecting domestic corrupt
political elites to lead the fight against corruption, as an account of the failure of the
EU’s push for reforms to produce genuine and lasting change, and as a demonstra-
tion of how important it is for the EU to find new solutions and mobilize new
resources to support civil society in its member states. It is only with the support of
civil society that the EU can anchor its policies in its member states for the long term.
Open Access This chapter is licensed under the terms of the Creative Commons Attribution 4.0
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the copyright holder.
192 6 Conclusion: Civism Against Cynicism
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