EU justice reform on
Romania caught in its own trap

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Romanian justice faces a test in July when the European Commission issues a monitoring report which could make the recommendation to enact a so-called ‘safeguard clause’ which punishes the country’s failure to reform its judicial system.
But the choice of the mode of punishment is under heavy criticism, while many believe the European Commission does not have the nerve to admonish Romania, even though the country has broken its promises on justice reform.
Enacting the safeguard clause on justice means that EU member states no longer automatically recognise and apply decisions made by the Romanian courts.
All legal relationships between EU member states and Romania will be subject to delays and confusion. This will disrupt justice, rather than assist reform.
It is a bureaucratic and not a moral form of punishment.
Because this will only concern bilateral legal relationships between EU member states and Romania, rather than the domestic situation, it could damage international relationships more than those within Romania, where the major problems exist.
The EU’s non-recognition of the Romanian justice decisions is analogous to the EU, finding that one of its ankles is twisted, decides that the best cure is to amputate the leg.
But will the European Commission have the confidence to enact the safeguard clause even if Romania fails to fulfill the criteria necessary for justice reform? Historically, EU’s strategy has been to threaten Romania with various ‘measures’, such as delaying entry into the EU for one year, which the international bloc then failed to follow through.
Romania’s leadership may feel it does not need to focus on reform because it already has the main prize of EU entry. From its previous experience, the country may believe that the European Commission will not enforce the safeguard clause, especially because it would harm EU member states more than Romania itself. The carrot has been swallowed and the stick no longer hurts.
This month European Commission experts are monitoring whether Romania has lived up to its commitments on justice reform. But the answer is quite clear.
It has failed.
One of the conditions was to establish an operational agency to monitor wealth declarations of public figures, such as ministers, by October 2007. But the newly-created National Agency for Integrity has only just appointed a president. Last month, it was declared unconstitutional and may face dissolution. Another condition was for the justice system to build on non-partisan investigations into high level corruption. Prosecutors have placed under scrutiny figures such as ex-Prime Minister Adrian Nastase and former Minister of Transport Miron Mitrea. But the Constitutional Court has declared that investigations into such figures can only continue with the approval of the Romanian Parliament, members of which include Nastase and Mitrea.
If the Commission fails to make its recommendation for safeguard action, this will confirm to EU member states the suspicion that the Commission does not seriously care about justice reform in Romania. If it does enforce safeguard action, it ends up creating a new problem without solving the existing issues. In July the EU can only choose between two nightmares.

Michael Bird