Introduction

The questions and fears of European citizens with regard to the loss of competitiveness that is undermining economic prosperity and dynamism, one of the prides and main successes of the EU, are currently giving rise to a wave of euroscepticism, notably in the western part of the continent. But a new source of concern is also rising in the east of the EU, regarding another pillar of the European project: the State of law and the values of a democratic and transparent society. This situation, should it last for any length of time, could create, here too, hostile feelings with regard to the European Union, which had engendered so many hopes after the fall of the Iron Curtain.

I - A worrying state of affairs

In three of the new EU Member States - Hungary, Romania and Bulgaria, the rule of law, as generally accepted, is being challenged in terms of its basic requirements: an independent judicial system, institutional forces of opposition, pluralist media, combat against corruption and organised crime, no discrimination towards ethnic minorities.

A. Hungary and the rule of law?

Analysts [1] are doubtful regarding the situation in this country which, a year ago [2], was the object of a resolution passed by the European Parliament expressing its "serious concerns with regard to the Hungarian situation in terms of the exercise of democracy, the rule of law, respect for the protection of Human and social rights (and) the checks and balances system".

This resolution was passed after a new Constitution came into force on 1st January 2012, the high point of the reforms initiated in 2011 by Prime Minister Viktor Orban, the result of which was a weakening of almost all forces of opposition.

In the meantime, and despite warnings and reactions from the European Union and the Council of Europe [3] as well as reservations expressed by the United States, the Hungarian Parliament adopted, on 11th March 2013, a new amendment to the Constitution– the fourth in two years - which reintroduces some of the provisions cancelled by the Constitutional Court in 2011, putting de facto legislative and executive powers above judicial powers.

The independence of the judicial system has indeed been damaged by the decision to confer the power to appoint judges to the head of the new National Justice Office, under government authority. This same institution can from now on decide to remove judges and allocate cases to the magistrates of its own choice.

The President of the Supreme Court, renamed Curia, was replaced after serving two years of his six-year mandate.

The powers of the Constitutional Court have been considerably restricted by a reduction in the possibilities of it being referred to by Members of Parliaments and the near-suppression of this possibility for ordinary citizens. Moreover, this Court is now banned from ruling on the substance of cases.

The Audit Office is now under Government responsibility and all other independent institutions, such as the Freedoms Defender, have seen their powers reduced; the function of Ombudsman has even been cancelled altogether.

Media freedom, another essential means of counter-balancing government power in a democratic society, has also been seriously restricted by a law in 2010 which, in spite of the amendments brought to it after pressures from the European Union, controls the free circulation of information. A strong concentration of the audiovisual media in hands close to the government should also be noted.

Finally, Budapest has recently been condemned by the European Court of Human Rights [4] for its segregation of Roma children in schools. Although in this field Hungary is not the only country to have been sentenced by the ECHR [5], it is interesting to note that these practices had not been observed in Hungary before the Fidesz party came to power, a party that has no hesitation in speaking in overtly nationalistic terms [6].

It must be observed, therefore, that a dangerous drift is taking place, affecting several of the fundamental aspects of a democratic society and the rule of law. Some, like the Hungarian political scientist Ferenc Miszlivetz, would even go so far as to speak of a "democracy without democrats", or a "democratorship" [7].

B. In Romania, there is no notion of any "democratic contract"

This was the unequivocal way in which Catherine Durandin, Professor at the National Institute of Oriental Languages and Civilisations (INALCO), a specialist of Romania, described the situation in this country where, according to her analysis "the concept of the rule of law has not been integrated" [8].

The new Romanian centre-left government presents the same risks as its right-wing Hungarian counterpart for the consolidation of the rule of law, which was already problematic in this country in transition.

After bringing down the centre-right government by a reversal of alliances within the Parliament in April 2012, the main concern of new Prime Minister Victor Ponta and his social-democrat/liberal coalition (USL) has been to restrict the independence of the judicial system and to slow down the more or less efficient fight against corruption undertaken by President Traian Basescu, which culminated with the sentencing of former Prime Minister Adrian Nastase to two years in jail on charges of corruption. [9]

Just a few days after the announcement of Mr Nastase's imprisonment, coalition MPs suspended the Head of State, using his lack of popularity in the country and over the course of the following weeks a bill was submitted to Parliament, aimed at modifying the conditions for validating the referendum on his removal from office [10].

Within weeks after its installation, the new executive suspended the People's Advocate (Ombudsman), the only authority entitled to dispute government decrees, reduced the powers of the Constitutional Court and replaced several heads of public agencies - notably the Director of the Official Monitor (Official Journal), which controls the coming into force of laws and legal decisions [11].

All of these infringements of the principles of the rule of law caused concern at the European Commission, whose President José Manuel Barroso called an emergency meeting with Victor Ponta in July 2012 in Brussels, giving him a list of 11 measures to be taken before the end of 2012. These measures referred to "respect for the rule of law and the independence of the judicial system beyond partisan interests" in order to "restore the confidence" of the European Union, which put Romania under "exceptional surveillance" [12].

A week after Mr Barroso's meeting with the Romanian Prime Minister, the European Commission published on 18th July 2012 its annual report on the situation in Romania, within the context of the Cooperation and Verification Mechanism (CVM) [13], which severely underlined the fact that "recent measures taken by the Romanian government raise serious concerns with regard the respect of the fundamental principles" of the European Union.

The next report, published on 30th January 2013, specifies that "Romania still has a great deal of progress to make to clean up its legal system and put an end to corruption". The text underlines, amongst other things, that "many cases have been observed where the media has put pressure on the courts; (...) one may ask whether the National Audiovisual Council is playing its safeguarding role correctly" [14].

Indeed, although some of the Commission's recommendations have been put into effect - including withdrawal of the proposed law on the modification of the referendum conditions for removing the President - PSD MPs (mainly former members of the communist party), who have a majority in both Houses of Parliament, feared that the combat against corruption started by President Basescu - in power until the end of 2014 - might affect them in turn.

This is why a reduction in the independence of the judicial system remained a priority for the new majority - prior to the Parliamentary elections held on 9th December 2012 (won by the USL in power), a proposal for an amnesty law for all prison sentences of less than 6 years was submitted by two USL MPs and will be put to vote [15] despite a negative opinion expressed by the Higher Council of Magistrates (CSM), which qualified it as a text "without precedent in Romanian justice in the post-communist era, both in terms of the length of the sentences pardoned and the nature of the cases for which amnesty was called", adding that "it does not correspond to the criminal justice policy of any European State" [16].

Moreover, overruling the legal decision, the Prisons Authorities released Mr Nastase on bail [17] after only eight months in prison (out of 24), as had been promised by Mr Ponta during the election campaign. This took place in spite of opposition by the National Anti-Corruption Department (DNA), for which no chief prosecutor has been appointed for over six months, since no agreement can be found between the two leaders of the executive, on which candidate to appoint.  

Among the priorities for the first half of 2013 announced by Mr Ponta is a review of the Constitution which should include a reform of the composition of CSM members and the possibility for Parliament, with a two-thirds majority vote, to overrule a decision made by the Constitutional Court - the powers of which have already been reduced by Mr Ponta on his arrival at the head of the government [18].

On 22nd January 2013, MPs also passed a law bridling Prosecutors' powers, who may now only bring investigations against MPs with Parliament's approval, and limiting those of the National Agency for Integrity (ANI), whose advice on any conflict of interests for ministers and MPs will no longer be an obstacle to their appointment.

Corruption, in the same way as the lack of departmental competence and poor communication, is also one of the causes of the low absorption by Romania of structural funds, use of which is monitored closely by the OLAF (European Anti-Fraud Office). Only 15% of the 32 billion € granted to Romania by the European Union for the period 2007-2013 have been used, a fact that has led the Commission to propose an 8 billion € reduction in EU funds allocated to this country in the draft budget for the next seven years (2014-2020) [19], whereas these funds are vital for the country's agriculture and infrastructure and Romania has taken out a loan for an equivalent amount from the IMF and the ECB to finance its spending.

Thus, six years after joining the European Union, Romania is moving backwards in terms of the rule of law: although President Basescu sought to give Brussels guarantees of progress, by establishing democratic institutions whose functioning remained far from perfect, the new government would appear to have taken still more liberties with the Union's values. 

C. The case of Bulgaria

As for Bulgaria, the annual CVM report published in July 2012 [20] contained an overview of the very limited number of reforms achieved since the country joined the European Union, and expressed great concern about Bulgarian organised crime, which is "unique in Europe". These warnings have been followed by very little action and the reform process, mainly of the judicial system "does not yet demonstrate a lasting, irreversible nature" according to the diplomatic wording of the Commission. 

In a less diplomatic move, the European Parliament decided on 6th February 2013 to organise a two-hour debate on the state of democracy in Bulgaria [21], after the attempted assassination of one of the leaders of the Turkish minority party at the end of January.

Contrary to what happened in Bucharest a year ago [22], street demonstrations against the high cost of living led, on 20th February 2013 to the resignation of the government run by the Prime Minister Boïko Borissov (GERB), who claimed "the dignity and honour" [23] of letting the people speak. A government of experts was put in place on 13th March and early Parliamentary elections will be held on 12th May 2013 [24].

The Bulgarian people, just like the population in Romania, still give a lot of credit to Europe for efficiently combating the threats that weigh on democracy in their country. This is what is shown from the Eurobarometer survey carried out in May 2012, which showed that 78% of Bulgarians and 72% of Romanians wish to see the European Commission continuing to support reforms until their country achieves results comparable to those in other Member States.

II - EUROPE HAS CONSIDERABLE RESOURCES AVAILABLE TO IT TO COMBAT THIS SITUATION

Although the EU Treaty provides as the sole tool for sanction of a Member State the extreme measure of suspending its voting rights in the Council [25] - a decision taken in several stages, by qualified majority, and then unanimously in case of a clear risk of violation of European values - the Union does de facto have a whole range of means of legal, financial and political means of pressure at its disposal.  

A. The Commission can invoke safeguard clauses or take the matter before the Court of Justice of the European Union

As for any contravention to Community law, the Commission, as keeper of the Treaties, has the possibility of taking the case before the CJEU by means of an infringement procedure when it finds that the legislation in a Member State is contrary to the Treaty or the Charter of fundamental rights. These possibilities were used at the beginning of 2012 when the Commission brought a case against Hungary concerning the independence of its central bank and its data protection bodies, as well as with regard to certain measures involving its judicial system [26]

But this legal instrument is above all intended to combat a legislative corpus that is contrary to the principles of the Treaties and the Charter. It is more difficult to use with regard to political practices.

In Romania, President Basescu and the previous government that supported him set up the democratic institutions required by the European Treaties and then suggested that CVM reports were no longer necessary [27]. Bulgaria also adopted the justice reforms demanded by the European Union, although they are still not being correctly put into practice [28]. 

Moreover, the Bulgaria and Romania membership treaty (just like those of the other countries that joined in 2004), contains three provisions which enable the Union to compensate for any difficulties encountered during membership: a general economic safeguard clause, a specific internal market safeguard clause and a specific safeguard clause relating to justice and domestic affairs. They can be applied on decision by the Commission, taken on its own initiative or at the request of a Member State if any serious failings or a serious risk of failing are observed in the transposal or implementation of European Union rules.

In 2008 Romania was "almost subject" to implementation of the economic safeguard clause due to fraud in the use of structural funds, payment of which was suspended for several months. This suspension was pronounced again in August and October last year for four of the five funds allocated to Romania. [29] 

Financial sanctions, such as the threat of a 25% reduction in the amount of community funds earmarked for Romania [30] for the period 2014-2020, are also a possibility [31].

But such sanctions affect the population, already hit by the economic effects of the unlawful practices of the national and local authorities, and bring about negative feelings towards Europe among the country's citizens.

B. Political pressure

That leaves political "sanctions" and pressures, which are not always easy to wield and their efficiency depends on the sensitivity of the incriminated State's leaders to being "shunned" by Union members. Although this threat had a certain degree of effect prior to membership and during a short period afterwards, a feeling of impunity is beginning to grow: the risk of being pointed at or even "excluded" from the European Union no longer appears to worry the authorities in these countries.     

A typical example of this attitude was that of the Hungarian Prime Minister during the latest European summit of 14th&15th March 2013. While the president of the European Parliament Martin Schulz informally asked heads of state and government to adopt sanctions against Hungary, going as far as the activation of article 7 of the Treaty, M. Orban minimised at a press conference the accusations made against his reform of the Constitution, held to be anti-democratic by both the President of the European Commission and the German Bundestag. 

Nevertheless, the European Parliament is going ahead with a planned analysis of the Hungarian situation on 17th April next, at the request o all the European political parties.

For Romania and Bulgaria the CVM and the regular reports drawn up by the Commission within this framework are no longer an incitement to implement reforms. This system of "carrot and stick" has stopped working: in Romania leaders are turning a deaf ear to the severe analyses contained in these reports [32].

Finally, the Council's refusal - the decision is taken unanimously - to allow Romania and Bulgaria to enter the Schengen area is one of the "sanctions" most keenly felt by these two countries, which see it as a humiliation. And yet they have not hitherto convinced certain Member States, which believe that the border guards and customs officers in these countries are corruptible [33].

An initial report is expected this year on the state of corruption across Member States, in compliance with an anti-corruption action plan announced in 2011 by Cecilia Malmström, European Commissioner for Home Affairs [34]. The report may point the finger yet again at Romania and Bulgaria. Could this umpteenth report make any difference to the situation?

III - INSUFFICIENT USE MADE OF RESOURCES

A. Is the EU's intervention too moderate?

Neither the CVM reports, nor the risk of activation of article 7, or exclusion from the Schengen area - and still less the resolutions of the European Parliament or personal pressure by the European authorities - have prevented leaders of these countries from adopting provisions that are contrary to the democratic values and the rule of law, which form the basis of the European Union founding principles.

In addition, the hope placed in the European Union would appear to be wearing away amongst the population: for the first time in Romania a positive image of the European Union is no longer in the majority, obtaining only 47% (-7 points) [35] of favourable opinions in a country that has previously been deeply euro-optimistic. This is mainly due to an impression that the CVM reports are much too complacent with the country's leaders.

As well as the loss of credibility of Union sanctions in the eyes of political leaders, who no longer really fear them [36], there is the risk of a disappointment among the population, who is still hoping that recourse to Brussels could turn their country's situation around, as shown from the letter sent by several Romanian NGOs [37] to the Commission last summer, asking it to trigger a sanctions procedure against Bucharest in view of the worsening of the judicial system situation after the arrival of the new government [38].

B.Pressure must be maintained, but with discernment

It is therefore clear from all of the above that the political will of the leaders is the only way to ensure progress for democratic values in their countries. But in the absence of such will, countries in transition must be able to continue to be accompanied for a long time yet, in order to avoid the establishment of regimes whose authoritarian drift constitutes a threat.

In Romania the population has understood as much: according to a survey [39] dating from the end of 2011, a crushing 84% majority of the population says that it does not trust the government (a lack of confidence that is only exceeded by the Greek population as it undergoes the present major crisis), compared to only 10% favourable opinions. The divorce between the population and their leaders is clear, which does not bode well for any success that the latter could have in asking the population to make sacrifices in order to get out of the current crisis.

It is therefore particularly easy for the leaders of these countries to incriminate Europe (the amputation of 25% of community funds, the refusal to agree to admission to the Schengen area) for all these difficulties and the president of the Romanian Senate has already made some euro-phobic comments, explaining that "the laws of Romania are not made in Brussels" [40] to justify the Romanian authorities' refusal to follow the recommendations contained in the CVM reports. Particularly in a period of crisis, nationalistic talk, even in a Europhile country like Romania, is a classic weapon to calm the people's unrest. That is why political sanctions should be preferred over economic sanctions, which hit a population already in difficulty, at the risk of achieving the opposite result from the one sought.

The situation is even more worrying in Hungary, where a majority of Hungarians believe that the situation in the European Union is heading in the wrong direction (45%, against 18% with a favourable opinion) and the gap between those with a negative opinion of the Union (27%) and those with a positive opinion (31%) is narrowing [41]. Of even more concern, 63% of the Hungarians say that they are unhappy to be living in the EU, ahead of the Greek figure (47%).

In fact, in Hungary's case, the population is in agreement, in a quite considerable proportion, with the policy of their government, elected by a very big majority. [42]  The sanctions implemented against this country may have had the effect of bringing the population together up against what is seen as "unjustified" hostility, with the risk of taking the shine off the European project and its values.

In spite of all this, vigilance on Budapest must continue, in order to prevent Hungary from slipping into a kind of authoritarian nationalism, which could threaten several Member States in the region and beyond [43]. The grounds for such pressures was proved when sanctions were put in place against Austria in 2000: even though Vienna did not give up the idea of including the extreme right wing party (FPÖ) in the government coalition, the sanctions taken by its 14 partners at the time [44] obliged Austrian leaders to undertake in writing to respect democracy, knowing that they were under close surveillance.

This means that, in certain cases, the Union must use this weapon - with precautions to ensure that hostile feelings are not triggered - because, as Romano Prodi said at the time of the Austrian crisis in 2000, "when a Member State is in difficulty, the whole of the Union is in difficulty. The duty of a supranational institution is not to isolate one of its members, but rather to bind it tightly to its values".

In fact the use of sanctions - at different degrees and in a gradual manner [45]– against States that are failing in the application or respect of the rule of law must meet three objectives: support in a concrete way the condemnation of a specific behaviour, take the attitude that is expected by European public opinion and retain a coherent stand at international level, where the Union advocates the respect of the rule of law as one of its core values, the criterion of democratic conditionality being applied to most of its external relations.

In addition, European pressure may result in a shock to public opinion, as was the case in 2000 in Austria, when the latter started out of its passivity in terms of the emergence of the FPÖ. A shock of this kind can be hoped for in Hungary.

As for the countries "in transition", Romania and Bulgaria, sanctions must be imposed if necessary.

CONCLUSION

In view of these contrasting situations, all equally concerning, the Union must maintain a certain amount of pressure.

The Commission has understood this and wrote, in the CVM report on Romania on January 30th 2013, that "external pressure is still necessary" because the changes made in this country are above all the result of these pressures.

That is why, in the coming years the Union must keep up its vigilance in the New Member States, where democracy is still on its way to maturity.

A year after the protests by Romanians [46] exasperated by the abuses of the people in power, which led to the removal of the Prime Minister of the time and then to the fall of the democratic-liberal government (PDL), accelerating the plan to remove President Traian Basescu (which ended in failure, since in a referendum the Romanians refused his removal), the situation would not appear to have changed very much. Quite the contrary in fact, the merciless battle fought by the political parties throughout 2012 has not only tarnished Romania's image, both internally and externally, but it has also caused a reduction in economic growth, which has fallen to 0.8% (against 2.5% in 2011) and a considerable slowdown in foreign investment (-30% during the first half of 2012), thus accentuating the country's economic difficulties.

In this respect it is interesting to note that, in a survey [47] carried out by Eurobarometer, freedom of opinion comes out at the top of European values for 64% of the people questioned throughout the whole of the Union, coming even before peace. However, the three lowest percentages of people of this opinion were recorded in Hungary, Romania and Bulgaria.

The Stockholm Citizens Europe Programme sets out directions for action aimed at the civil society [48]. In the chapter headed "Dialogue with civil society" [49], the European Council "encourages the Union's institutions to maintain, within the context of their competencies, an open, transparent and regular dialogue with representative associations and civil society. The Commission should establish specific mechanisms, such as the European Justice Forum, in order to intensify dialogue in areas where these mechanisms are appropriate".

The safeguarding of democratic values demands vigilance by all [50]. Such vigilance is the price to pay for the return of confidence and removal of the risk of a rise of Euroscepticism in the East.