Errors of Commission: EU Accession and the struggle against corruption in Romania by Andrea Wagner A thesis submitted to the Faculty of Graduate and Postdoctoral Affairs in partial fulfillment of the requirements for the degree of Doctor of Philosophy in Political Science Carleton University Ottawa, Ontario ©2016 Andrea Wagner 1 ABSTRACT The dissertation explores corruption in Romania during its transition from communism to democracy as well as the European Union's (EU) efforts to curtail it and their consequences. It applies a theoretical framework that draws insight from three literatures: those relating to rent- seeking and corruption, the EU accession process and path-dependence. The dissertation demonstrates that corrupt practices in post-communist Romania are embedded in clientelistic structures originating in communist-era patron-client relations. The dissertation examines the incentives and opportunities that underpin corruption and the mechanisms for curbing it in three distinct periods: post-transition, pre-EU and post- EU accession. In that process, the author identifies and analyzes the range of endogenous and exogenous factors that gave an impetus to anticorruption reforms. The findings reveal that neither democratization nor marketization was able to undermine the persistent treatment of the state as the propertied possession of the political elite. The EU largely misunderstood corruption in Romania and underestimated the resourcefulness of a domestic elite determined to defend its privileges even after EU accession, while misconstruing the nature of the transition in Romania. The dissertation highlights the importance of a better understanding of corruption in post- communist countries, and demonstrates the constraints and impact of EU Commission policies on the evolving Romanian polity. Parsimonious assumptions fail to encompass a path – dependent understanding of corruptive patterns. At the same time the dissertation brings to light the impact of multilevel governance on deep-seated patterns of political behavior. Without the 2 efforts of the EU, corruption would reign unchecked, yet even with the powerful incentives and sanctions wielded by the EU Commission, corrupt practices remain embedded in Romania. 3 Acknowledgements These seven and a half doctoral years have been extremely challenging but also immeasurably rewarding. At the very start, I want to thank the Center for European Studies at Carleton University for the Travel Research Grant that supported my field research in Bucharest. Moreover I would like to thank the National Integrity Agency and the National Anti- Corruption Directorate for their valuable input, an input that reflects their daily work and challenges. The guidance of my supervisor, Prof. Jeremy Paltiel, has been crucial for the completion of this dissertation and invaluable in terms of intellectual nourishment. He is an excellent scholar and a brilliant thinker. His continued support and guidance throughout the years have shaped my own expectations by raising the stakes, creating new ambitions and cultivating discipline. I never felt alone throughout this process, due to his prompt replies, feedback and constant reminders to get the work done. I would also like to thank my thesis committee members for their guidance and support throughout this process. Prof. Carson’s and Prof. Hurrelmann’s feedback has helped me enormously in improving my final draft. On a personal note, I would like to thank my very close friend Dorian Kroqi whom I have met in the doctoral program. I am extremely grateful for his countless hours of babysitting and reading numerous chapters of my dissertation. Finally, I would like to dedicate this thesis to my wonderful daughter Helen. She was born one month prior to my proposal defense and has grown since into a beautiful and brilliant little girl. She is the reason why I never lost track of what is truly important and her presence has given me courage during the most difficult moments. I hope one day she will read the 4 dissertation and will understand why I have spent countless hours in the library trying to balance it all. 5 TABLE OF CONTENTS INTRODUCTION ……………………………………………………………………………...15 CHAPTER ONE - The European Union’s Fight against Corruption Introduction……………………………………………………………………………………...43 1.1 Problem Definition and Issue Framing in the Context of Corruption……………………….46 1.2 The Legal Foundation in the European Union’s Anti-Corruption Policy…………………...58 1.3 Initial Anti-Corruption Instruments………………………………………………………….61 1.4 Subsequent Anti-Corruption Instruments……………………………………………………78 1.5 Broader Anti-Corruption Measures………………………………………………………….81 Conclusion ………………………………………………………………………………………84 CHAPTER TWO - Property Restitution and Corruption in Romania Introduction……………………………………………………………………………………....90 2.1 Decollectivization and Land Restitution in Romania………………………………………..93 2.2 Corruption, Rent-seeking and Land……………………………………………...…………..99 2.3 Housing Restitution and Corruption ……………………………………………………….106 Conclusion ……………………………………………………………………………………..113 CHAPTER THREE- Anti-Corruption Institutional Development and Formal EU Accession Pressures Introduction……………………………………………………………………………………..119 6 3.1 The EU’s Moderate Anti-Corruption Pressures through Regular Reports…………………122 3.2 The EU’s Effective Anti-Corruption Pressures through the Comprehensive Monitoring Reports……………………………………………………………………………………...139 3.3 The EU’s Weakening Anti-Corruption Pressures Post-Accession………………………....144 Conclusion……………………………………………………………………………………...157 CHAPTER FOUR - Anti-Corruption Institutional Development Introduction …………………………………………………………………………………….162 4.1 The fall of the National Anti-Corruption Prosecutor’s Office and the rise of the National Anti-Corruption Directorate………………………………………………………………..167 4.2 Anti-Corruption Agencies unsuccessful fight against particularism……………………….174 4.3 Romania’s post-communist justice system ………………………………………………...183 4.4 The lack of judicial independence and pernicious corruption within the Judiciary………..188 4.5 Delaying tactics……………………………………………………………………………..195 Conclusion……………………………………………………………………………………...203 CHAPTER FIVE- The Political Elite’s Fight against ACAs Introduction……………………………………………………………………………………..207 5.1 The Immunities Regime…………………………………………………………………….210 5.2 The Corrupt Parliament……………………………………………………………………..219 5.3 Post-Communist Elites and the Absence of Power-Elite Reconfiguration…………………224 5.4 Corruption at the Local Levels of Government………………………………….…………232 5.5 Preventing Corruption: the Role of the Ombudman and NGO Sector………………..……237 7 5.6 The Media’s Role in Undermining the Fight against Corruption ………………………….241 5.6.1 The Communist Heritage…………………………………………………………247 5.6.2 Media Patronage and Media Moguls………………………………………..……254 Conclusion…………………………………………………………………………………...…262 CONCLUSION…………………………………………………………………………………267 APPENDIX……………………………………………………………………………………..283 BIBLIOGRAPHY………………………………………………………………………….…...288 8 LIST OF TABLES CHAPTER ONE TABLE 1.1 Initial Anti-Corruption Instruments…………………………………….…..73 TABLE 1.2 Subsequent Anti-Corruption Instruments……………………………….….80 TABLE 1.3 Broader Anti-Corruption Measures………………………………………...82 CHAPTER TWO TABLE 2.1 Administrative levels responsible for the restitution…………………….....96 CHAPTER THREE TABLE 3.1 EU rule-transfer throughout 1998-2004……………………………..…….134 TABLE 3.2 EU rule-transfer throughout 2005-2006………………………..……….…143 CHAPTER FOUR TABLE 4.1 Magnitude of “State Capture “in Romania…………………………….….176 TABLE 4.2 Romania’s Statutes of Limitation……………………………………....…196 TABLE 4.3 Objections of Unconstitutionality……………………………………....…199 TABLE 4.4 Delays in Trial……………………………………………………………..200 CHAPTER FIVE TABLE 5.1 Immunities Regime……………………………………………………..…211 9 Abbreviations and Acronyms ACR- Anti-Corruption Reporting Mechanism ACA- Anti-Corruption Agency ALDE- Alliance of Liberals and Democrats for Europe (European Parliament) AMR- Association of Romanian Magistrates (Asociatia Magistratilor din România) ANAF- National Agency for Fiscal Administration (Agenția Națională de Administrare Fiscală) ANI- National Integrity Agency (Agentia Nationala de Integritate) ANRP- National Authority for Property Restitution (Autoritatea Nationala pentru Restituirea Proprietatilor) ANV- Romanian Customs Authority (Autoritatea Naţională a Vămilor) BEEPS- Business Environment and Enterprise Performance Survey CC- Control of Corruption CCR- Constitutional Court of Romania (Curtea Constituțională a României) CCI -Control of Corruption Index CDR- Romanian Democratic Convention (Convenţia Democrată Română) CEE- Central and Eastern Europe CMR-Comprehensive Monitoring Report CNA- National Audovisual Council (Consiliul Național al Audiovizualului) CNLO- National Company of Lignite Oltenia (Compania Nationala a Lignitului Oltenia) CP- Centre Party (Finland) CPC- Coalition for a Clean Press (Coaliția pentru o Presă Curată) CPI- Corruption Perception Index CPIB- Singapore’s Corrupt Practices Investigation Bureau CoE -Council of Europe CPIA- Country Policy and Institutional Assessment CFR- Romanian Railways (Căile Ferate Române) CSM- Superior Council of Magistracy (Consiliul Superior al Magistraturii) 10 CVM- Cooperation and Verification Mechanism DFDR- Democratic Forum of Germans in Romania (Forumul Democrat al Germanilor din Romănia) DGA-General Anti-Corruption Directorate (Direcţia Generală Anticorupţie) DNA- National Anti-Corruption Directorate (Direcţia Naţională Anticorupţie) DREF- Disaster Relief Emergency Fund