EU Accession and the Politics of Anti-corruption

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EU Accession and the Politics of Anti-corruption
Dan Dionisie, Policy Specialist, UNDP Oslo,
October 2009
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EU Progress Reports

• Corruption dealt with under Political criteria
  Democracy Rule of Law (Anti-corruption Policy
  section), occasionally also under Human Rights
  and protection of minorities (e.g. corruption
  among prison staff)
• Also referred to under Economic criteria
  (functioning market economy capacity to cope
  with competitive pressure within the EU) and
  other sections
• for candidates under Ability to Assume the
  Obligations of Membership (e.g. public
  procurement, taxation, Judiciary and fundamental
  rights, customs union, financial control,
  financial and budgetary provisions)
• for potential candidates under EU standards on
  Internal Market (e.g. customstaxation, public
  procurement), Sectoral Policies (e.g. financial
  control), Justice, Freedom and Security (e.g.
  money laundering, fighting organized crime and
  terrorism

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2009 Progress Report - Macedonia

• Corruption mentioned 46 times overall good
  progress
• Positive amendments to Electoral Code, Law on
  Political Party Financing, Criminal Code
  frequent meetings of the Government Council for
  monitoring implementation of the anti-corruption
  action plan, underlining the political priority
  attached to the issue prison sentences were
  imposed in first instance court decisions in some
  high-profile cases, including a former Prime
  Minister, a former Deputy Prime Minister and the
  former mayor of a Skopje municipality (appeal
  procedures under way).
• SCPC The databases of the State Commission for
  Prevention of Corruption (SCPC) and the Public
  Revenue Office were interconnected, allows swift
  information exchange and more accurate records of
  asset declarations. In 2008, 47 procedures for
  checking officials assets were initiated. The
  SCPC began to implement the action plan on
  conflict of interest, several cases were
  initiated, in 11 of them a conflict of interest
  found.
• Negative Fragmented legal system continued to
  generate difficulties in implementation. The
  legislation on financing of political parties and
  election campaigns has so far not had a
  substantial impact. The mechanism for following
  up reports and recommendations from the SCPC and
  the State Audit Office not fully effective. A
  consistent track record on checking asset
  declarations, following up irregularities on
  election finance thresholds and reporting
  donations has yet to be developed. Interception
  of communications is used in a rather low number
  of corruption cases, notably corruption cases not
  connected to organized crime. Sentences were
  suspended in a high number of court decisions on
  abuse of office. The SCPC is limited by the
  part-time role of its members, should be more
  pro-active in pursuing anti-corruption policy.
  Public trust in the independence and impartiality
  of the SCPC remains low.
• Overall, good progress was made on implementing
  anti-corruption policy. The electoral code, the
  law on financing of political parties and the law
  on conflict of interest were amended to
  strengthen transparency and new provisions on
  illicit enrichment were adopted. There were
  further indictments and convictions in high level
  cases and cooperation between law enforcement
  agencies improved. Nevertheless, corruption
  remains prevalent and continues to be a serious
  problem in many areas. Continued efforts are
  needed, in particular as regards implementation
  of the legal framework.

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2009 Progress Report - Turkey

• Corruption mentioned 16 times limited progress
  in fighting corruption.
• Positive Parliament adopted a law to amend the
  Penal Code and the Code of Misdemeanours. This is
  to take account of GRECO recommendations, align
  with international conventions and to implement
  the requirements of the OECD Bribery Convention
  and the recommendations of the Financial Action
  Task Force (FATF) concerning the prevention of
  money-laundering. The law strengthens the
  legislative framework as regards the liability of
  legal persons, prevention of money-laundering and
  foreign bribery. For the first time, the Ethics
  Board for Civil Servants published four
  decisions, in 2009, concerning non-compliance
  with ethics rules by public officials, including
  an elected mayor and managers of public
  companies.
• The government, under the coordination of the
  Prime Ministry Inspection Board with the
  participation of other State institutions carried
  out a broad consultation with stakeholders,
  including NGOs, with a view to preparing a
  national anti-corruption strategy.
• Negative The ministerial commission established
  to enhance good governance and transparency has
  hardly taken any political initiative in
  anti-corruption issues. Case of charity
  association Deniz Feneri. No progress on
  extending the ethics rules to academics, military
  personnel and the judiciary. No progress on
  limiting the immunity of MPs as regards
  corruption-related cases (the opposition supports
  measures in this respect). No code of conduct for
  MPs. Lack of control and verification of asset
  declarations remains a weak point in protecting
  the integrity system in parliament and
  government. No progress on adoption of
  legislation on the financing of political parties
  and election campaigns. There is no state body
  with the authority to audit election campaign
  financing. No progress towards adoption of the
  new legislation on the Court of Auditors, which
  envisages the re-structuring and strengthening of
  the court.
• Turkey needs to finalise an anticorruption
  strategy and to develop a track record of
  investigations, indictments, prosecutions and
  convictions.

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2009 Progress Report - Montenegro

• Corruption mentioned 50 times there has been
  progress in the fight against corruption
• Positive Greater emphasis on monitoring
  implementation of AC measures from the action
  plan against organized crime and corruption. The
  national commission for monitoring implementation
  of the action plan produced its 4th and 5th
  reports. Adoption of the new Criminal Procedure
  Code, the Law on Prevention of Conflicts of
  Interest in Performing Public Functions, the Law
  on Internal Financial Control and the Law on
  Financing the Election Campaigns for the
  President, Mayors and Presidents of
  Municipalities. Progress on further enhancing
  preventive and investigative anti-corruption
  bodies. AC training for police, border police,
  customs officers, prosecutors and judges. 12
  corruption charges were brought against 13 police
  officers as a result of internal investigations.
  Criminal charges for corruption and abuse of
  office were brought against three judges. Two
  NGOs participated in the work of the national
  commission for fighting corruption and organized
  crime and in screening related draft legislation.
• The resources of the Directorate for
  Anti-Corruption Initiatives (DACI) have been
  strengthened and its co-operation with the police
  has been enhanced. It intensified its training
  activities for administrative bodies and the
  public, as well as the realization of reports and
  researches related to corruption. DACI, NGOs and
  the media conducted awareness activities.
• Negative National legislation not fully aligned
  with international AC instruments. GRECO
  recommendations not fully implemented. Local AC
  action plans adopted by 11 municipalities, but
  implementation has begun only in two. Absence of
  strong and independent supervisory authorities to
  evaluate asset declarations and financing of
  political parties and to monitor and exercise
  control over expenditure in the public sector,
  notably on public procurement, spatial planning
  and privatization. New Law on the Prevention of
  Conflict of Interests in Performing Public
  Functions has serious shortcomings and loopholes,
  e.g. a significant exemption for MPs, who are
  allowed to hold executive powers in public
  companies or executive agencies. The
  administrative bodies for detecting and
  investigating corruption still lack sufficient
  staff with appropriate skills. The number of
  final convictions remains low. The investigative
  capacity of law enforcement bodies remains weak
  due to shortfalls in expertise, specialized
  equipment and working conditions. Inter-agency
  cooperation needs to be enhanced.
• Overall, good progress has been made on
  strengthening the strategic, legislative and
  administrative framework. However, corruption
  remains prevalent in many areas and continues to
  be a particularly serious problem.

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Summing up

• There is always progress (some, good, limited)
• Positive political will laws adopted/amended
  institutions established/strengthened reports
  issued meetings held (input-type)
  investigations initiated (but usually not
  finalized with court convictions)
• Negative lack of political will legal and
  institutional frameworks still deficient, not
  aligned to intl standards lack of convictions
  insufficient monitoring of politicians (e.g.
  asset declarations, MPs exemptions) reference to
  specific corruption cases

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Lessons learned in New Member States

• Corruption was high on their accession agenda as
  well, AC efforts monitored through Progress
  Reports
• Romania (4 benchmarks on judicial reform, fight
  against corruption) and Bulgaria (6 benchmarks on
  judicial reform, fight against corruption and
  organized crime) still monitored through the
  Cooperation and Verification Mechanism
• reports issued every 6 months (until mid 2009),
  next due in summer 2010

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Lessons learned in New Member States (II)

• The approach, recommendations and requirements
  of the EC in the arena of anti-corruption policy
  in candidate States have been focused on elites,
  top-down anti-corruption strategies pursued with
  adequate political will, enforcement of
  criminal law and establishment of functioning
  control mechanisms mainly to control the use of
  EU funds
• general orientation towards control paradigm
  (strong emphasis on criminal enforcement)
• expectations of immediate results
• the Commission lacks a clear sense of what it
  means by corruption, and therefore what would
  constitute successful anti-corruption policy
• EU lacks benchmarks for assessing corruption in
  member States absence of clearly binding acquis
  in the area of corruption
• does not appear to employ a consistent approach
  across candidate countries when citing survey
  data some ambiguity in the Commissions
  interpretation of statistics unspecified
  evidence
• The Commissions assessments of the prevalence of
  corruption, in which the seriousness of
  corruption in candidate countries is classified
  according to statements ranging from relatively
  limited problem through area of concern to
  widespread and systemic are clearly intuitive.
• Monitoring the EU Accession Process Corruption
  and Anti-corruption Policy, OSI-EUMAP, 2002

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Some issues with the Commissions approach

• assessments are highly political, rather than
  technical / objective
• emphasis on law enforcement (vs. prevention)
• overall legalistic approach
• emphasis on showing quick results (vs. systemic
  improvements)
• Some fundamental improvements are needed,
  although the first priority should be to deliver
  results irrespective of structural deficiencies
  CVM report for Bulgaria, July 2008
• tendency to over-emphasize political will
• shortcuts vs. normal procedures (e.g. fast-track
  adoption of laws, govt decrees)
• Romania example (Opriti codurile!, 2009)
• issue of sustainability (when political will
  disappears)
• risk of politicization of anti-corruption
• emphasis on governments driving role (may
  undermine the role of legislative, judiciary)

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The political will narrative

• In the pre-accession period candidate countries
  were under external pressure
• thus, had political will to act on corruption
• and did the right thing (and promised to do
  more)
• but after joining the EU there was no more
  pressure and political will vanished
• they backtracked on promises and even reversed
  some AC measures
• Slovenia - lawmakers have been trying to close
  down the commission for the prevention of
  corruption, run by Drago Kos, arguing that it is
  expensive and unnecessary at all public
  watchdogs staff salaries were cut by a third
• Latvia politically motivated attempt by the PM
  to replace the head of KNAB in 2007
• (later replaced in 2008 by Parliament with
  stronger justification)
• Slovakia the Justice minister called the
  special AC court a "fascist institution,
  eventually succeeded in having it deemed
  unconstitutional.
• Romania replacement of Monica Macovei as
  Justice minister three months after joining EU
• Bulgaria no high-level corruption conviction,
  none of the 120 mafia killings solved, large
  scale fraud with EU funds

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is not supported by measured perception
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Explanations?

• Eastern and Central Europe continues to perform
  relatively well on the Global Integrity Index
  despite widespread perceptions of weak
  anti-corruption and good governance mechanisms in
  the region.
• The gap between negative public perceptions of
  government accountability and Global Integrity's
  positive assessments of national anti-corruption
  mechanisms may signal the presence of a dynamic
  civil society and media which are capable of
  bringing issues of good governance into the
  public spotlight.
• It is likely that recent reforms in the ECE
  region are linked to demands made by Western
  countries as part of the recent EU and NATO
  accession processes. Whether these reforms
  "stick" in the long-run is the real question, but
  for now the structural reforms undertaken are
  real and impressive.
• Global Integrity data are not designed to capture
  every possible governance or anti-corruption
  issue at play in a given country. For example,
  organized crime issues play a major (if not
  dominant) role in shaping perceptions of
  corruption in Bulgaria but are not reflected in
  the battery of indicators fielded by Global
  Integrity.
• Source Global Integrity Report

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Other highlights

• What does the Global Integrity Index measure?
• Category I Civil Society, Public Information and
  Media
• I-1 Civil Society Organizations
• I-2 Media
• I-3 Public Access to Information
•    
• Category II Elections
• II-1 Voting Citizen Participation
• II-2 Election Integrity
• II-3 Political Financing
•    
• Category III Government Accountability
• III-1 Executive Accountability
• III-2 Legislative Accountability
• III-3 Judicial Accountability
• III-4 Budget Processes
•    
• Category IV Administration and Civil Service

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Sustainability of AC reforms - Slovakia
Controversy and sustainability of anticorruption
reforms in Slovakia
 Reform initial controversy sustainability subsequent changes influencing anticorruption impact
1. Fees for accelerated service in the land registry medium high None
2. Freedom-of-information law high high none (but periodically reappearing)
3. Bank privatization high high None
4. Limiting discretion in active labour market policy low medium limited - extending scope for discretionary activities
5. Company register reform low high None
6. Increasing public involvement in the policy consultation process low high None
7. Increasing internal and external audit in local and regional self-governments low high None
8. Special prosecutor and special court for corruption offences high medium limited, with potential to be significant - decreasing pay for Special Court judges, Constitutional Court challenges
9. Introduction of case management techniques in the judiciary medium high None
10. Change in the political party financing high high None
11. Increasing capacity of education system low high limited - steps to limit capacity growth, but given demographic developments, not likely to have much impact
12. Tax reform high medium limited - introduction of some changes
13. Health care reform high low significant - reversal of introduced changes and also the reform was not completed
Source Miroslav Beblavý (2008)
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What determines sustainability?

• 13 case studies researched in Slovakia in 2007
  and 2008, each focused on a policy reform that
  was postulated to have impact on corruption.
• Corruption can be decreased substantial
  sector-based decrease in corruption is possible
  even in a country where the corruption is
  extensive.
• In Slovakia, anticorruption reforms focused on
  decreasing benefits of corruption rather than
  increasing costs of corruption and effective
  reforms have usually done more than increase
  transparency and availability of information
  they also used one of the following three
  approaches liberalisation/privatisation,
  limiting discretion and increasing
  supply/decreasing demand. The Slovak experience
  of 1998-2006 shows that sustained effort can
  bring about significant improvements in
  corruption if it is linked with overall reform of
  the economy and governance structures.
• In Slovakia, despite the importance of the
  process of EU accession, the role of external
  actors was much more important in policy transfer
  and technical assistance than in forcing the
  reform through conditionality. Even the strongest
  of conditionalities was present only in a
  minority of reforms and the political will to
  enact the reforms was mostly home-grown. On the
  other hand, the role of external actors in
  inspiring and/or designing reforms was crucial
  and was present in ALL the reforms that were
  graded as having high or medium effect on
  corruption.
• The level of controversy is not a good guide to
  sustainability of the reforms. Surprisingly, the
  ideologically charged changes have high levels of
  sustainability even when they were initially
  controversial and the steps that have proven to
  be less sustainable are those where specific
  interest groups remain opposed and where the
  reform has not managed to create a powerful
  constituency in favour of the new status quo.

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Conclusions

• The focus on corruption should not divert from
  the broader PA and Governance reforms.
• AC efforts that shortcut existing institutions
  and governance systems may be counterproductive
  (fragility of institutions may be bigger/deeper
  problem than corruption)
• Quick fixes may not be sustainable
• Institutionalize reforms, secure constituency
• Risk of politicization of AC (AC instrumentalized
  for political purposes)

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What can ACAs do?

• Take ownership of the AC agenda, dont let it be
  driven by Progress Reports
• Adopt long term AC strategy with strong
  prevention focus, linked with overall reform
  programmes
• Avoid excessive legalistic focus, also look at
  informality, actual practice
• research to understand corruption patterns
• Always work through your institutions, not
  against them, dont cut corners, dont bypass
  checks and balances
• Better slower, sustainable progress than
  temporary fixes and quick results that dont
  stick
• Monitor credibly your AC strategy, involve civil
  society
• Evaluate impact
• Communicate

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• Thank you!
• Comments?
• Questions?