More than 15 years ago, the EU set special conditions for Romania’s accession and reaffirmed the importance of respecting the rule of law and fighting corruption, thus creating the well-known Mechanism for Cooperation and Verification (MCV). MCV is the tool through which the Commission annually analyzes Romania’s progress in the field of justice and the fight against corruption.

The ECJ declared in a recent decision the legally binding nature of the MCV, meaning that Romania must respect and implement the report’s recommendations. The MCV report is important because it shows evolution, progress, but also regression, as was the case in Romania in 2017 on issues of justice and the fight against corruption. Since then, the pace of reform has not been consistent or predictable due to severe political instability. The latest package of justice laws was recently criticized by the Venice Commission, but this opinion was not taken into account in the legislative process, as decision-makers deliberately rushed to vote on the package, although one of the recommendations of the MCV was that justice reforms take into account the recommendations of the Venice Commission and GRECO. Obviously, the haste was also connected with the fact that at the beginning of December, an important decision will also be made at the level of the EU Council: whether or not to join Schengen.

Why is Schengen linked to the MCV report?

Technically speaking, MCV and Schengen entry have nothing in common. But from a political point of view, some EU member states have used the rule of law situation described in Romania’s MCV report as an element of concern, on the basis of which they cannot agree to the extension of the Schengen area until Romania fulfills all the recommendations.

Today, the Commission published a new MCV report for Romania, just weeks before EU governments will vote on the option to extend the Schengen Agreement for Romania.

What is the new MCV report about?

The MCV report was supposed to show significant progress in the reforms carried out by Romania compared to the 2021 MCV report in achieving the goals set out in the recommendations.

For example, Romania has yet to complete the revision of the Criminal Code and the Code of Criminal Procedure to ensure consistency with the decisions that the Constitutional Court of Romania has made since 2016. The European Commission is also talking about reforming the CSM, which will give a new impetus to transparency and accountability.

In a new context of political pressure, today’s MCV report removes from the Schengen accession debate the argument that the rule of law is not respected and cannot be used by other countries such as the Netherlands or Austria. The conclusion looks something like this:

“The findings of this report allow us to note significant progress in the legislative and institutional framework to implement the long-standing recommendations of the MCV. The Commission considers that the progress achieved by Romania under the MCV is sufficient to meet the commitments undertaken by Romania at the time of its accession to the EU. Before taking a final decision on Romania under the MCV Decision, the Commission will take due account of the comments of the Council as well as the European Parliament.”

Of course, the 1 million point question remains: does the MCV confirm reality or is it done on purpose to facilitate Schengen expansion for Romania? Let’s not forget, however, that the latest MCV report for 2021 pointed in a good direction, but also explained that many recommendations still need to be followed and implemented.

There are three elements that indicate that the MCV report is a friendly assessment of Romania

1. The current coalition no longer uses anti-European rhetoric and adopted the Law on the High Council of Magistrates, the Law on the Judiciary and the Law on the Status of Judges and Prosecutors. Although the Venice Commission noted that no recommendation was required before adoption and drew some criticism, the Venice Commission welcomed the direction, especially regarding the independence of DNA.

2. Push for Schengen expansion

Because of the war in Ukraine, there is a geopolitical window of opportunity for Romania to finally become part of the Schengen area. Unfortunately, Romania’s access is blocked, some member states use the MCV as a political argument, even though Romania meets the technical criteria since 2011. Therefore, in order to avoid this instrumentalisation, this MCV report should not offer other Member States a political justification and avoid a political deadlock based on a report that should not really be related to the Schengen decision.

3. The position of Hungary

The EU is going to turn a blind eye to Hungary’s illiberal behavior, which threatens to block unanimous decisions if the EU does not unblock European funds. Of course, it would be an exaggeration to say that the Union turned a blind eye to this, when in fact it succeeded in persuading Hungary to adopt a number of laws and reforms regarding the fight against corruption and the independence of the judiciary. But these legislative changes were made not because of the desire for change, but in order to cancel the Commission’s decision to activate conditionality regarding the rule of law for the first time since the adoption of this regulation. If Hungary does not take certain measures to correct its rule of law violations, it will lose €6.5 billion in European funds and its PNRR will remain blocked. Normally, the Council would vote for a decision to cut European funds for Hungary, but inter-institutional discussions made it clear that Hungary came with a package of reforms required by the European Commission, and negotiations are now underway to reverse these cuts. . Some criticize this decision, saying that this instrument of conditionality has not even been activated, that concessions are already being made. But if we look at the spirit of Regulation 2092/2020, this conditionality of European funds is actually intended to put pressure on member states to carry out the necessary reforms. Thus, looking at the Hungarian legislation, we can say that this tool is effective, given that Viktor Orbán’s government has yielded to the EU. In the overall analysis of respect for the rule of law, we can still say that the reforms implemented by Hungary cannot solve in a few months the damage done to the justice system over the last 12 years. Compared to Hungary, things are somewhat better in Romania.

MCV is high. What tools does the EU have to ensure compliance with the rule of law?

In recent years, given the numerous regressions in Poland and Hungary regarding the rule of law, corruption and the independence of the judiciary, the EU has taken new initiatives to strengthen respect for the rule of law. The repeal of the MCV does not leave rule of law monitoring uncovered: important tools remain to monitor compliance with the rule of law, as well as to penalize non-compliance.

First, the European Public Prosecutor’s Office, a consolidated cooperation between 22 member states, which does not include Hungary and Poland. Authorities are investigating the loss of EU funds and tax evasion. It already has a strong reputation for investigating all these cases and helping Member States recover this money.

Second, rule of law conditioning, a provision that allows the EU to suspend or block payments to member states of European funds if the rule of law is not respected and corruption and misuse of EU funds are detected.

Third, the report on the rule of law. It is an innovation that introduces the monitoring of 4 large chapters in each member state, and also contains recommendations on the fight against corruption, the independence of the judicial system, freedom of the press and the quality of legislation and good governance. This report, prepared for all 27 member states, dispelled the myth that only Eastern Europe has problems related to the rule of law. In fact, all Member States have problems that need to be addressed and resolved. Nobody is perfect. Some do it better than others. But the report on the rule of law shows a European perspective compared to the MCV, which was implemented only for Romania and Bulgaria. However, we cannot say that the new report on the rule of law for member states is a new MCV, because the MCV is legally binding, unlike the recommendations in the new report on the rule of law, which are not as legally binding. Read the whole article and comment on Contributors.ro