Towards a Theory of De-Europeanization, an Elite-Based Approach

Abstract

Martin-Russu offers a critical analysis of the existing scholarship, focusing in particular on enlargement-led Europeanization studies and locating them in the wider context of European Integration research. She identifies two major gaps in the literature: the lack of a theoretically grounded model of de-Europeanization substantiated through fine-grained analyses of domestic transposition; and the lack of sufficient empirical research on the relevance of domestic political elites for the success and stability of EU-led reforms. This chapter illustrates how her study bridges these gaps. It proposes a theoretical framework that explains Romania’s selective backsliding—its reversing of reforms in some domains much more than in others—and links this reform reversal with the pursuit of narrow personal interests by the domestic political elite.

Concepts without percepts are empty; percepts without concepts are blind. (Kant)

Article 76 of the Romanian law regarding prisoners’ rights, Law 275 of 2006,¹ states that a prison sentence be reduced by 3 days for every 2 days of work if prisoners were involved in scientific research, inventions or patented innovations. This article, which clearly reflected the rehabilitative focus of imprisonment, was later amended by Law 254 of 2013.² The new law shifted the emphasis from the amount of time that prisoners invested in scientific research to the number of scientific works they produced during detention.³ This minor amendment to the 2006 law is emblematic in that it shows how a provision in line with European standards that emphasized the rehabilitation of prisoners has been remade into one that offers a particular group of detainees a clear prospect of early release. Following this legislative amendment, Romania saw an abrupt increase in prisoners’ scientific publications between 2014 and 2015, with over 337 works published in 2015 alone; more than 103 scientific projects by 63 detainees were under way in January 2016, which means that some inmates were working simultaneously on more than one publication.⁴ A large number of these scientific works were authored by former members of parliament or former members of national or regional governments who had been sentenced to prison on charges of corruption. This is but one of many examples of legal corruption⁵ demonstrating a clever drafting technique through which legislators instrumentalize policies and the democratic framework for their own personal benefit. This case, seemingly insignificant in its scale, highlights the role of legislatures and of individual legislators in actively encouraging abusive and corrupt behaviour, at the expense of any chance for genuine reforms.

Outside of anti-corruption reforms, the success of any policy and the proper functioning of the entire political system depends on the choices made by political representatives. Assessing the degree to which a given system is corrupt involves identifying the extent to which the rules defining the proper functioning of that system are violated; thus, any understanding of corrupt legislative decision-making relies on what is defined as appropriate legislative decision-making.⁶ This requires that political representatives are defined as agents entrusted with the broad delegated authority to engage in policy-making under a public-interest mandate.⁷ In this case, any parliamentarian’s use of entrusted legislative powers that puts their private gains before the interests of their voters would represent a loss of integrity and thus a form of engagement in corrupt practices. This perspective draws on the work of Kaufmann and Vicente,⁸ who understand an act to be corrupt once public officials use their position for purposes that deviate from the public interest. Building on this broad understanding of corruption as “the use of entrusted power for private gain”,⁹ we will define as legal corruption all cases in which public officials use their legitimately entrusted power in order to pursue personal goals and gain private benefits at the expense of public ones without breaching existing legislation.¹⁰ Without constituting a study of corrupt practices per se, the present research utilizes the notion of corruption (understood as “subversion of the public interest”¹¹) in order to highlight the significant role that such intentional misconduct might play in the adoption of legislative reforms. Employed in this way, the concept of legal corruption will allow us to lay bare more subtle patterns of abusive behaviour in settings that are generally considered to be rule-governed and transparent, such as national parliaments.

As legislatures are agents entrusted with establishing legality, the quality of the adopted legal framework will depend largely on the interests pursued by lawmakers and the extent to which they can be held accountable by those delegating their power, i.e. the voters. It is therefore not surprising that officials who enjoy broad powers of discretion in systems that are already corrupt and lack adequate and efficient mechanisms of legislative control are rather likely to prefer a corruption-prone legal framework, being inclined to adopt laws that primarily serve their particular interests and only secondarily the interests of the society at large. Corrupt self-serving practices can thus undermine the legislative process per se, encouraging rather than suppressing such undesirable, yet legal, behaviour. In such contexts, political decision-makers are unlikely to curb corruption through meaningful legal and administrative action. The legal and administrative action undertaken at present by the Romanian political elite is indeed far from meaningful. Anti-corruption efforts need to be both a matter of establishing institutions and formal democratic or judicial mechanisms, but also a matter of political accountability. However, Romanian legislators tend to focus on the former while completely disregarding the latter. This leads to an overly zealous development of institutions that lack the means and resources for effective action. Chapter 4 will provide an excellent example of this; an anti-corruption agency created without the appropriate legislative basis or the technical capacity for effective action. As we will see, as long as the public accountability of political decision-makers and existing oversight mechanisms are weak, the efforts to curb established patterns of corruption will remain equally weak.

Understanding corrupt behaviour in terms of political will and an actor’s attitude towards public service, and not only as a violation (committed for private gain) of the existing laws, draws attention to more elusive forms of abuse. It highlights the important role of in-depth analyses of both the legislative output and of the representatives’ preferences, which in this context are considered crucial in shaping expectations regarding the success of anti-corruption reforms, and of reforms in general. This approach provides a new perspective on Europeanization and EU-triggered legislative reform: it brings into sharper focus the intentions of the domestic legislator in passing or amending a law, and provides a more comprehensive picture of the quality and character of the legislative output. The intention of the political leaders to serve the public interest is here taken to be key for the success of anti-corruption and other Europeanizing reforms (while the pursuit of private rather than societal goals at the expense of the common good constitutes an act of corrupting those reforms). Throughout this book, the discussion of Romania’s EU-driven reforms will focus on the interests pursued by the legislators in drafting and adopting legislative acts, providing a comprehensive analysis not of corruption itself, but of the corruptive potential of legislatures in the context of domestic Europeanization-driven change.

The lack of support for sustained anti-corruption efforts at the domestic level among political decision-makers was compensated for by increased pressure at the EU level. The European Union considers corruption a severe threat to its core democratic values, to the effective implementation of the acquis communautaire and to the proper functioning of the single market. Therefore, since the adoption of the Copenhagen criteria in the context of eastern enlargement, the EU has attached a high priority to fighting corruption; its policy of conditionality specifically addresses this issue. Most studies of Europeanization assume that the European Union has sufficient power to trigger reform in member states subject to post-accession conditionality. The EU’s mechanism of continuous monitoring and benchmarking is thought to contribute to combating corruption and thus, to establishing the rule of law. But is pressure from the EU enough to ensure sustainable change? Are genuine anti-corruption reforms triggered this easily even in states with high levels of corruption? Can we expect unstable democracies to reform their justice systems, and can we expect the rule of law to be adopted in the interest of the general good? And most importantly, can corrupt public officials really be expected to punish themselves? As discussed in the introductory chapter, the European Union’s policy of conditionality, despite its ambitious democratic and acquis-related criteria, fails at times to deliver on its promise to spark deep and sustainable reforms that succeed in ensuring the rule of law, restrict corruption and increase good governance. This was the case in several southern and Central European accession states, which have in recent years experienced a decrease in their capacity to control corruption, and it was also the case in Romania when it dismantled parts of its already adopted reforms, with law-making being used as an instrument to serve the particular interests of a corrupt political elite.

Research on Europeanization often fails to acknowledge and explain why states might de-Europeanize after joining the EU and after successfully adopting EU-driven reforms. Scholarly approaches implicitly assume that actors have sincere motifs in embracing or rejecting reforms, ruling out the possibility that reforms are adopted reluctantly, and by representatives who are well aware of their reversible nature. The following sections will provide a summary of the literature in the field, and take into view the extent to which existing approaches account for the reversibility of change and pay regard to entrenched domestic interests when studying Europeanization. The first part of this chapter will look at how successful EU-driven reform is understood to stem from both EU-induced adaptational pressures and national-level preferences, without distinguishing at this stage between the pursuit of public and private interests in policy-making. Following this, a discussion of the clashes and overlaps between public interests and the interests pursued by the political representatives in the exercise of their duties will make up the second part of this chapter. It will highlight the crucial role played by domestic political elites in bringing the social and legal reality in line with EU requirements, and in maintaining a high level of democratic and legislative stability and the rule of law.

Assuming that political representatives might use and abuse their legislative powers in ways that are detrimental to societies at large, this chapter ultimately argues that a more accurate model of Europeanization needs to accommodate the goals pursued by reformers in the process of reform. The approach to de-Europeanization taken here encapsulates this disjunction between the self-interest of the elite and the interests of the broader society.

2.1 Modelling De-Europeanization

2.1.1 Defining De-Europeanization

In order to define de-Europeanization, it is important to first clarify the essential qualities of the process that actors are seeking to reverse. As a concept, Europeanization evolved on the basis of a large body of literature on the subsequent widening and deepening of European integration. Broadly articulated, the motivation of this research is to understand “how European integration and European policy-making affect the very states responsible for integration in the first place”.¹² Conceptually, Europeanization has evolved since the 1990s into a notion bringing together theoretical reasoning and empirical studies in various fields: it was used to address the process of aligning domestic policies and institutions with their European counterparts, of aligning national executive branches with the EU’s negotiation and bargaining processes, and of seeing state and non-state actors adapt to the emergence of new opportunity structures. The concept is used to describe the adaptation of domestic policies, polities and politics whenever the impact of this process extends beyond the borders of EU.¹³ Indeed, as research on Europeanization proliferated, the concept itself was defined in increasingly subtle, complex and often contradictory terms.

The most frequently cited definition is Radaelli’s.¹⁴ It is an all-encompassing definition, which captures the multifaceted character of Europeanization, and extends well beyond an understanding of the process as the mere impact of the EU on domestic systems; it presents Europeanization instead as a process of:

(a) construction, (b) diffusion and (c) institutionalization of formal and informal rules, procedures, policy paradigms, styles, ‘ways of doing things’ and shared beliefs and norms which are first defined and consolidated in the EU policy process and then incorporated in the logic of domestic (national and sub-national) discourse, identities, political structures and public policies.

Radaelli proposes an understanding of Europeanization that extends beyond the vertical notion of domestic adaptation; in his view, it is an interactive process rather than a one-dimensional reaction to the EU. While preserving a clear focus on the domestic level, the definition of Europeanization as proposed by Radaelli assigns significant importance to the construction of norms at EU level; it employs a “bottom-up-down”¹⁵ approach suggesting that studies of Europeanization start at the domestic level to inquire into how supranational policies and institutions are affected by domestic preferences or “ways of doing things” and only subsequently determine the impact generated by EU policy-making at the domestic level. At the same time, this perspective subtly allows for an understanding of Europeanization as a horizontal mechanism of change in which socialization and learning processes might lead to an in-depth change, to a “consolidation” and “institutionalization” of norms. Finally, it identifies several domains of impact, from political structures and actors to discursive and cognitive structures. This highly nuanced definition of Europeanization provides an appropriate background understanding of the concept and of the general scope of research in the field. Yet a narrower, more explicitly formulated “systematized concept”¹⁶ will better serve the aim of the present endeavour. To this end, the present section will draw on Radaelli¹⁷ in order to provide a taxonomy of Europeanization (Fig. 2.1¹⁸), which will then be used to narrow down the disciplinary focus and define the concept for the scope of this research.

Fig. 2.1

A taxonomy of Europeanization

As noted above, Europeanization processes include both hard and soft mechanisms that produce effects at the domestic level; the pressure exerted by the EU on member states or acceding candidates is neither a sufficient nor a necessary condition for domestic change. Transformation can happen by virtue of socialization and learning, in the absence of any pressure from the Union. While fully acknowledging this fact, the present approach self-consciously limits itself to a top-down understanding of Europeanization, in which reform is triggered by the EU’s compliance mechanisms and its policy of conditionality. Top-down mechanisms of inducing domestic change are the main catalysts of reform, at least in as far as the newest member-states are concerned.¹⁹ Consequently, for the particular context that this book addresses—in which the role and impact of the EU on domestic policies and structures is considered to be especially strong, and the influence of the domestic level on EU policy-output is still fairly limited—Ladrech’s²⁰ definition of Europeanization proves most suitable:

Europeanization is then understood as the change within a member state whose motivating logic is tied to a EU policy or decision-making process.

Using Ladrech’s definition as a point of departure, the concept of Europeanization is further narrowed down to encompass only (1) top-down mechanisms that induce policy change at the level of member or accession states, which (2) result first and foremost in a legal transposition of norms, and (3) do not necessarily imply a deep change in the core and logic of policy-making.

• 1. Given the major impact the European Union has on domestic policies and the large bulk of literature devoted to the theoretical and empirical evaluation of this impact, the present conceptualization will place a special focus on Europeanization as a mechanism of policy change. This understanding of Europeanization is also tailored to the particular context to which the concept will be applied, characterized by a low capacity to influence European-level policy-making (low capacity for policy-upload) and a very high pressure to adopt, enforce and institutionalize EU-triggered reforms (high degree of policy-download). Europeanizing processes are then viewed as dependent mostly on the nature and intensity of adaptational pressures emanating from the EU on the one hand, and domestic intervening factors on the other hand.

• 2. The Union’s impact on member or accession states is primarily driven by legislative requirements and the legal adoption of norms. The EU itself attaches high importance to the development of formal institutions and the rule of law, placing at its very core the development, the interpretation and application of legal rules.²¹ Therefore, bearing in mind the importance of legislation and legislative institutions for the entire European construction, it is here adopted a predominantly legal perspective in the study of Europeanization. A state is considered to be Europeanized as soon as it has successfully transposed into national legislation the content of European norms. While the broad literature on implementation pays regard to the processes through which EU norms are not only domestically transposed, but also adhered to and enforced,²² the present approach makes a useful distinction between legal transposition on the one hand and the application, enforcement or institutionalization of norms on the other. It questions the extent to which the EU can generate profound institutionalized change in its member states without an ex ante legal transposition of norms. Transposition, the transfer of EU legislation into national legislation, is here regarded as the essential step in the implementation of EU norms, on which the subsequent application and enforcement of laws depends. Even though a study limited to transposed legislation can yield little information on the actual enforcement and institutionalization of norms, it can be very insightful when addressing the corruption or reversal of reforms; it can provide essential insights into the non-enforcement and non-institutionalization of norms. Legal transposition is thus here regarded as a critical aspect of Europeanization, without which adaptational pressures from the EU remain fruitless.

• 3. Concerning the direction of domestic policy change, despite the fact that EU policy-making rests on the ideal of harmonization of national policies with European standards, empirical studies have long demonstrated the EU’s “differential” impact.²³ Europeanization processes can result in transformation, but also in absorption, inertia or even retrenchment.²⁴ Differences in the degree and direction of change allow us to distinguish these possible outcomes of Europeanization: “transformation”, which stands for a deep paradigmatic change of policy; “adaptation”, which indicates a selective adoption of reforms without a real modification of the core and the logic of policy-making; “inertia”, which signals a lack of change resulting from delayed or obstructed transposition; and “retrenchment”, which implies a hostile reaction to European policies, the effect of which is a domestic reform that is less European than it initially was.²⁵ Arguably, in the context of enlargement, accession states’ responses to the EU’s requirements are largely positive. Due to their eagerness to finally acquire full membership, aspiring states most often respond to Europeanization by “adapting” or “transforming”. However, recent evidence on post-accession development in some Central Eastern and South-Eastern European member states renders at least questionable the idea of EU inducing deep domestic change.

In sum, Europeanization is here defined as a top-down mechanism through which the EU exerts an influence on its states; an influence which is reflected at the domestic level in the quality and stability of transposed legislation. This conceptual restriction offers a refined account of the EU’s domestic impact, which is appropriate for explaining non-linear developments in domestic reform processes such as those identified in the case of Romania. This strict limitation of the concept of Europeanization to comprise only legislative changes will therefore exclude wider issues such as a state’s capacity to enforce or institutionalize respective legislation. The main focus is on domestic legislative output, which makes it easier to isolate the EU’s adaptational pressure for reform, to identify instances of reform reversal and to identify the factors determining such a U-turn. A state’s accession to the EU significantly affects its domestic legislative framework, which inevitably results in successful Europeanization, at least in certain policy areas. However, that a reform is adopted does not necessarily guarantee that it will remain in place. The newly acquired status quo may be easily reconsidered by legislators in light of a changing balance between costs and benefits, leaving the respective member state likely to undermine pre-accession measures and de-Europeanize.

De-Europeanization as understood here marks not only a deficit in the institutionalization of change, it represents a formal reversal of reform. This definition of de-Europeanization comes very close to the notion of “retrenchment” mentioned above. While both imply a process of “negative” Europeanization, the notion used here indicates an ex post rejection of reform only after the respective change has been adopted and produced effects at the domestic level. The thing that significantly sets de-Europeanization apart from “retrenchment” is the standard against which the respective reversal of reform is judged: while “retrenchment” refers to a first-instance response to EU policy-making, de-Europeanization instead concentrates on the long-term effects of Europe. It goes beyond the initial impact created by the EU and addresses the U-turns of already Europeanized policies by using the level of already achieved “positive” reforms as benchmarks in assessing “negative” changes. This means that such a process of de-Europeanization is only possible where the initial Europeanizing pressures triggered the “absorption” of norms and not a deep, long-lasting “transformation”, “inertia” or “retrenchment”. In sum, de-Europeanization denotes a setback of domestic reform following an initial adoption of EU norms and standards.

It is also important to distinguish between de-Europeanization and de-Democratization. Recent scholarship on CEE rightly regards the two phenomena as two sides of the same coin, assuming that the level of Europeanization depends inevitably on the quality of democracy.²⁶ While this perspective holds true for broad analyses (ones that encompass economic, social and political motivations, factors and transition outcomes, as well as formal and informal practices), for the scope of the present research the two concepts are better separated than fused. Indeed, when assessed against the broad spectrum of democratic reforms that entail fundamental social and behavioural changes, Europeanization is still incomplete in Romania, which renders the notion of reversal void. However, in the narrower understanding of Europeanization proposed here, Europeanization is complete once the required rules and norms are transposed. In this case de-Europeanization is a reversal of formally adopted legislation. A de-Europeanizing state may still maintain its democratic standards, and conversely a de-Democratizing state may pursue Europeanizing reforms. The abuse of the democratic framework may not always result in complete state capture, political elites may act in a self-serving manner in certain policy domains and not in others, civil societies may be stronger in certain fields than in others. In order to produce a fine-grained analysis of formal de-Europeanization, the intention here is not to juxtapose de-Europeanization and de-Democratization. Rather, the intention is to develop a frame of reference that incorporates the essential requirements for democratic conduct when assessing de-Europeanization without performing a de facto measurement of any democratic backslide. Unfortunately, the EU does not as yet have an effective mechanism for defending liberal democratic institutions. It remains largely unable to prevent a democratic backslide, in the way that it can use its leverage in tackling faulty transposition of EU law or norms.²⁷ Given the aim of the present research to assess the long-term effectiveness of EU post-accession conditionality, the approach to reversal must be narrowed down to those aspects in which some form of compliance mechanisms are in place.

2.1.2 Overview of Europeanization Research

The above-mentioned conceptual confusion surrounding the notion of Europeanization extends beyond semantics, and in fact reflects a wide variety of proposals for modelling and measuring Europeanization.²⁸ The present overview does not aim to review these in detail and cannot do justice to the wealth of literature on Europeanization; rather, it aims to glean from them those analytical elements which are useful in explaining de-Europeanization processes.

2.1.2.1 Ups and Downs

There is an inherent optimism prevailing in the literature on Europeanization with respect to the harmonizing role of Europe. Indeed, despite the fact that it is largely claimed that Europeanization is not to be equated with convergence or policy harmonization, and despite the emphasis on the differential impact on member states, an incremental and transformative reasoning nevertheless remains at the core of the proposed models.

A significant part of the literature embraces a constructivist perspective on the impact of European integration on member states and assumes that to a notable degree, developments at the domestic level would have occurred with or without the existence of the European Union. By placing greater emphasis on the voluntary character of compliance and on the non-coercive mechanisms of domestic change—persuasion, learning, socialization—these approaches to Europeanization draw attention to horizontal processes of ideational convergence and policy transfer, which unfold independently from any formal compliance with European legislation or even from membership in the EU.²⁹ Early studies of horizontal Europeanization viewed the EU as a policy transfer platform rather than a law-making body.³⁰ Processes of emulation, they argue, take place even in the absence of European directives or regulations, and in support of this claim empirical research focused largely on the open method of coordination.³¹ This mechanism was seen as a promising tool for the transfer of knowledge and best practices, which stimulates convergence towards EU goals by using a logic of benchmarking, networking, socialization and learning facilitated by European institutions.³²

Learning-based Europeanization is the outcome of indirect and invisible mechanisms constituting the driving force for profound and stable reform. Such soft and deep Europeanization is triggered by socialization—which raises policy-makers’ awareness of their interdependence, and thus, their level of commitment; monitoring—which makes EU institutions more aware of the progress achieved by member states, and thus more capable of providing suitable solutions; and by arguing and persuasion—which makes all European decision-makers aware of each other’s preferences and common goals.³³ It is worth noting in this respect that the source of initiative for domestic change is diffuse. A transition towards Europeanization, if there is any transition at all, takes place in the absence of adaptational pressure; the adoption of domestic reforms in this case is a consequence of increased competition and cooperation between member states and of an increased exchange of information and mutual learning.³⁴ These mechanisms of adaptation therefore have a profound voluntary character, with states enjoying broad discretion in deciding on the timing and the appropriate solutions to be adopted domestically. As a result, adoption of the rules that are transferred through horizontal Europeanization is most likely to require significantly more time, but develop a stable character. Where present, such Europeanization processes most likely lead to continuous and consistent compliance. Domestic reform tends to be more profoundly institutionalized, much slower, yet less contested at the domestic level.³⁵

Viewed in this light, Europeanization is fairly linear in its trajectory. Such a conceptualization leaves very little scope for a reversal of reforms. The underlying assumption is that horizontal mechanisms can successfully trigger policy, behavioural and ideational convergence in the pursuit of common European goals in the absence of any pressure to conform.³⁶ Studies focusing on socialization and learning thus account for voluntary and therefore solid processes of Europeanization; they trace gradual and subtle developments which unfold over long periods of time, but lead to lasting reform. The horizontal model of Europeanization is thus fairly limited in explaining de-Europeanization. While being particularly appropriate for identifying instances of deep domestic change, the horizontal approach is of little help in explaining the reversal of reforms as witnessed in the Romanian context.

Numerous scholars agree that the process of open coordination failed to realize its promise, with the effects it produced being mixed at best.³⁷ Moreover, this kind of open coordination proved to be less applicable to new member states whose participation in the process was much more top-down in character, resulting more from the transposition of social directives than from involvement in the open method of coordination.³⁸ This confirms the thesis put forward in the literature that domestic change in the EU’s Central and Eastern and South-Eastern European member states was foremost a result of a “hierarchical and vertical processes of command, control and steering”³⁹ and less an effect of the horizontal socialization and lesson-drawing.

By addressing processes far lengthier than legislative convergence, such a horizontal approach would be more suitable for a long-term analysis of the impact of Europe. The EU’s new members are still young members of the Union, and their post-accession experience is still too limited to gauge the full impact of socialization, including “unexpected, unintended, or failed socialization”.⁴⁰ A horizontal conceptual design would be most appropriate for a complementary study focused on enduring instead of ephemeral reforms. At the same time, horizontal Europeanization as described above implies a policy transfer which occurs independently from EU directives and regulations and the member state’s compliance in the formal sense; socialization, learning, ideas and attitudes play a far greater role than formal convergence. However, to ignore Romania’s formal compliance and the EU’s adaptational pressure as factors triggering change would most probably distort the insights produced by this thesis. One only needs to bear in mind the undeniable progress made by Romania in its pre-accession phase, which was a clear consequence of the EU’s conditionality and the country’s strong desire for membership.

No less optimistic in terms of the EU’s potential to generate domestic transformation, yet focusing on less subtle and significantly more formal mechanisms of change are the studies of Europeanization which propose a vertical understanding of impact (with either an ascending or descending direction of influence). Both bottom-up as well as top-down approaches place their main focus on the EU level, which is viewed either as a locus of policy-making at the top or as a stimulus for policy-taking at the bottom. While top-down Europeanization emphasizes the importance of an existing European standard, and substantial adaptational pressure on states to converge with this standard, bottom-up models begin and end at the domestic level, grounded on the assumption that member states themselves have a say in shaping many of the EU policies and standards which subsequently impact them at the domestic level. Bottom-up Europeanization thus accounts for domestic change by starting from the member states and putting first the crystallization of domestic preferences, it proceeds to inquire into how rules shaped at the EU level are a reflection of these preferences, and only then questioning their potential to produce effects back at the domestic level. By stressing the role of member states and domestic actors in uploading their preferences to the EU level along with the role of the EU in generating domestic change through adaptational pressures, bottom-up conceptual designs transcend the uni-directional model of conceptualizing the domestic impact of Europe.⁴¹ Their approach to Europeanization “captures the whole life-cycle of public policy, with possible feedback effects between the national level and the EU”,⁴² by relying on both processes of policy upload and policy download. Causality in this case runs both ways; nevertheless, the initiative and the stimulus for engaging in policy upload remains at the domestic level, with domestic actors able to firstly shape rules which they will then subsequently have to adapt to domestically.

The relevance of this approach, and of the bottom-up perspective in general, for the present argument lies in the fact that it acknowledges the weight of domestic preferences in European-level policy-making. It opens the black box of interests pursued at the domestic level by public administrators and economic and societal actors, and it argues that political representatives compete at the EU level in pushing for policies that align with the preferences of their constituencies.⁴³ Successful Europeanization is in this light not a matter of incorporating European rules into domestic structures, but rather the other way around: EU-level policy-making is understood as an integral part of domestic political action. Studies of bottom-up Europeanization assess the domestic usages of Europe instead of the domestic adaptation to European pressures.⁴⁴ The present research, even though concerned with the top-down dimensions of the policy process and isolating the “downward flow of effects”⁴⁵ from the EU-level onto the domestic policy-making level, stays focused on domestic interests. The active role of domestic players in their pursuit of domestic preferences and their potential use of Europe is here judged to be important for explaining problems that are specific to top-down Europeanization. Assessing the top-down impact of Europe in this way, the present argument reinterprets policy download in terms of how domestic actors make use of European policies in pursuit of particular interests, and what meaning they attach to the reforms triggered by the EU. Inspired by the bottom-up logic, the following analysis will show how EU policy-making is instrumentally used by domestic actors, not at the EU level, but rather at the domestic level, during the transposition of norms.

But there is more to the bottom-up understanding of Europeanization than the idea of usage of Europe. Bottom-uppers also address processes of reorientation of national groups towards supranational fora (proaction) and the emergence of pro- and anti-EU movements responding in a positive or negative manner to an increasing level of integration (rejection/promotion).⁴⁶ Such studies emphasize the role played by local actors in embracing and interpreting European rules and opportunities, the importance of collective action and transnational networks and the implications of an emerging European identity.⁴⁷ The common ground of bottom-up Europeanization studies lies in recognizing the major role played by domestic contexts or by domestic actors and their respective preferences, which can feed back into the process of policy- or decision-making at the EU level. By considering the domestic political dynamics in the first place, bottom-up research designs can avoid prejudging or over-emphasizing the role of the EU in generating domestic change. Indeed, change may “draw on domestic channels”⁴⁸ and this is an aspect which top-down Europeanization models often fail to acknowledge.

By starting out from an analysis of an ex-ante domestic situation and an ex-ante assessment of domestic preferences, bottom-up Europeanization research postulates that the process of European policy-(re)formulation depends to a large extent on existing domestic interests that are pursued in EU-level decision-making processes which only subsequently affect domestic policies and structures. Even though the model is cyclical, the descending stage of Europeanization—the transposition and enforcement of norms—is marginal in the bottom-up understanding of Europeanization. Perhaps contra to expectations, this bottom-up approach actually places a very high emphasis on the EU level, where policy is defined, and on the extent to which domestic preferences affect EU policy-making. Such a view leaves very little scope for exploring instances of de-Europeanization, as domestic preferences and the action capacities of those representing such preferences at the EU level remain, in general, largely stable over time. The possibility of reversal is even less likely if one takes into account the fact that bottom-up models of Europeanization rely heavily on the assumption of a plurality of interests pursued in supranational fora, which would make a reversal of an already established status quo very difficult to achieve.

Thus, in the present context, the bottom-up model is rather limited in its explanatory value. It is not only unable to properly account for processes of de-Europeanization, but its application is limited by the requirement that states must have a reasonable impact on policy-making at the European level. Most Central Eastern and South-Eastern European member states, even though eager, are generally still weak in their capacity to upload preferences to the European level. Being still at an early stage of membership, their domestic political dynamics are seldom able to feed back into European-level policy-making. Without neglecting the relevance of policy upload in the context of Europeanization, the present theoretical framework draws mostly on the top-down approach in which change, if any, is thought to be generated at the EU level and trickle downwards through adaptational pressures. The focus is here deliberately placed on the download of legal norms, as Romania is still particularly reserved in its upload of domestic preferences to the EU level. Bearing in mind that policy download depends largely on policy upload and interactions at the EU level, and recognizing the various opportunities that domestic governmental or non-governmental actors have to influence EU policy developments, this approach nevertheless narrows down the meaning of Europeanization to the legal conformity with EU policies, requirements and standards at the domestic level. The ex-ante development of the respective policies at the EU level remains beyond the scope of this restricted conceptualization of Europeanization.

There are three main reasons why a top-down analytical framework is the most appropriate conceptual approach for the present argument. The first takes into account the sources of the imperative for domestic change: while to some extent, domestic reform might be pushed by bottom-up or horizontal forces, the major trigger of reform in Romania, as in other member states in the region, remains the EU’s adaptational pressure and its stimulating policy of conditionality. The second point concerns the upload capacity of new members or accession states: there needs to be a clear distinction between policy formulation at the EU level and its domestic implementation. Placing higher importance on the former renders bottom-up approaches unsuitable to research on states with limited or no capacities to influence supranational policy-making. Longer membership is required for states to substantially increase their upload potential and have a real impact on EU-level policy-making. Closely related to this, the final point reflects on the time frame of the produced or expected change: the adjustment to Europe of Central Eastern and South-Eastern European states has been rather rapid and abrupt, leaving little scope for strong horizontal effects; a wider time horizon is required for socialization and learning processes to take effect and become visible at the domestic level of the EU’s still newest member states.

2.1.2.2 Top-Down Europeanization: The Misfit-Driven Reform

Over the last two decades, top-down Europeanization literature has grown particularly rich, with approaches varying significantly in terms of the variables defined, the methodologies adopted, the policy areas under study, and the geographical areas addressed. Emerging from a comparative politics perspective, top-down Europeanization research largely regarded the EU and its policy-making as an independent variable in explaining changes in domestic political activity, structures and policies.⁴⁹ Numerous studies touch upon the EU’s impact on domestic institutions, focusing either on the adaptation of executives to membership⁵⁰ or prospective membership,⁵¹ or the adaptation of parliaments⁵² or courts.⁵³ Other scholars address the manner in which the EU affects political actors—be they parties and party-systems⁵⁴ or interest groups and social movements.⁵⁵ However, the major share of top-down Europeanization literature is dedicated to policies, concentrating on policy domains as diverse as environmental policy, transport policies, telecommunications policy, labour policy or asylum policy.⁵⁶

These numerous studies addressing Europeanization and policy change give rise to a cautious optimism with regard to the EU’s potential to generate reform in its member states or candidates. There is indeed strong agreement among scholars on the impact of the EU at the domestic level. However, approaches vary in their assessments of the degree of impact, the factors enabling or inhibiting change, and the states or clusters of states across Europe that are most prone to sustainable reform. There are three questions that lie at the heart of top-down Europeanization research: (1) What triggers change at the domestic level? (2) What are the domestic factors that could hinder or enable such change? (3) What are the domestic responses to Europeanization pressures? Against this background, the intense debates that fuelled the development of Europeanization research moved beyond the study of supranational triggers for domestic reform, and descended to the domestic level to identify facilitators or inhibitors of change, the resulting degree of policy adjustment, and the success or failure of implementation.

Theoretically, top-down Europeanization research draws on new institutionalism, building on the discussion that institutions matter and asking how institutional configurations at the EU level have an impact on policy outcomes at the domestic level. The underlying logic is that European institutions and policies shape the behaviour of domestic political actors, who consequently adopt and implement reforms at the domestic level. In this light, Europeanization is mainly concerned with the manner in which “one set of institutions—the European rules, regulations, and collective understandings—interact with another set of institutions—the given domestic structures in the member states”.⁵⁷ Grounded in a hierarchical understanding of the EU, domestic conformity to supranational institutions is mainly framed in terms of a three-step model, stating that the Union—through its norms, rules, regulations, procedures and practices—gives rise to adjustment pressures, which, by means of domestic-level mediation, can produce domestic outcomes.⁵⁸ This three steps model incorporates the three questions noted above, with different scholars emphasizing different aspects of the model.

• 1. What is it that triggers Europeanization in the first place? The response most widely discussed in the literature revolves around the notion of misfit: an identified level of misalignment between European and domestic structures. It is this incongruence between the supranational and the national levels that generates adaptational pressures: a higher level of misfit will most likely increase the pressure to adapt. The implicit guiding logic of this argument is that change is to be expected only wherever there is a necessity for it, i.e. wherever the domestic policies or institutions do not fit with developments at the European level and where the respective misalignment leads to adaptational pressures on domestic structures.⁵⁹ This degree of misfit is considered necessary but not sufficient for domestic change.⁶⁰ It is merely the trigger and not per se the source of adaptational pressures. The misfit can only lead to compliance when there is significant adaptational pressure exercised domestically by committed domestic political actors or structures that favour change (pull) and when there is substantial adaptational pressure from above via infringement or conditionality mechanisms at the disposal of the European Commission (push).⁶¹

  Pressure for adaptation, emanating either from push or pull mechanisms, differs across states and across policy areas; the impact of Europe on domestic policies and structures is differential.⁶² The asymmetrical impact of Europe has long been a commonplace in the literature, suggesting that there is no automatic response to the build-up of adaptational pressures among European states. Most scholars agree that Europeanization has neither led to a convergence of administrative structures nor to a harmonized use of policy instruments across EU member states.⁶³

• 2. What are, in this case, the factors that account for this variation? Europeanization scholarship⁶⁴ highlights the importance of veto players in explaining differences in transposition and implementation across member states, along with other intervening factors that may inhibit or foster domestic change: domestic institutions, political and organizational cultures, the differential empowerment of actors at the domestic level, the readiness for learning, or the existing preferences and beliefs of the domestic political actors.

  The most prominent approach in this respect remains the one proposed by Börzel and Risse,⁶⁵ who fit the factors that mediate change at the domestic level into an institutionalist framework that incorporates both rational and sociological explanations. They take as their point of departure an assumed level of misfit that generates adaptational pressures directly proportional to the level of misalignment and add to it a further condition for change: the existence of domestic facilitating factors, actors or institutions that respond domestically to the misfit. They identify two manners of conceptualizing the domestic response to adaptational pressure, which they combine in a comprehensive model of top-down Europeanization, that accounts for the domestic response through both a rationalist institutionalist logic of consequentialism and a sociological institutionalist logic of appropriateness.⁶⁶ The logic of consequentialism assumes that the misfit between the European and the domestic level leads to changes in the political opportunity structure. The domestic political actors—rational, intentional, goal-oriented, and with strategies formed in their respective institutional contexts—might seize new opportunities or face new constraints in pursuing their goals, and thus facilitate or impede change. Their capacity to act is highly influenced by mediating factors such as the number of veto points, or the domestic formal institutions. On the other hand, the sociological institutionalist perspective draws on the logic of appropriateness, arguing that domestic change is determined by a collectively shared understanding of what constitutes proper behaviour. The domestic political actors, while exposed to new rules, norms, practices and structures of meaning, are thereby influenced in how they define their interests and identities. Here, mediating factors are also identified as determinants of the degree to which the misfit generates change: norm- and idea-promoting agents, or domestic political culture and other informal institutions being highlighted as impactful. Börzel and Risse’s model of Europeanization makes a distinctive contribution to the literature, as it provides a synthesis of rational choice institutionalism and sociological institutionalism. They thereby provide two distinct explanations for domestic change that are not mutually exclusive, but rather complement each other; either one or the other pattern for change prevails—more or less distinctly—at different times and in different phases of domestic adaptation.⁶⁷

  As already argued above, the present theoretical approach does not deny the importance of socialization and learning processes to inducing deep, substantial change. However, they are considered to be long-term processes, able to induce convergence only in the long run, after several decades of membership experience. The EU’s newest member states in general, and Romania in particular, did not reach just yet the phase in which adaptation and convergence result primarily from socialization and learning processes. Indeed, studies covering a wide variety of Central Eastern and South-Eastern European states⁶⁸ found that socialization- and learning-related factors were largely irrelevant for Europeanization East and did not account for a significant variation in norm adoption. The incentives offered by the Union and a candidate’s cost-benefit calculation were factors considered to be more adequate to explain rule transfer in Central Eastern and South-Eastern Europe. The EU’s approach to eastern enlargement, they argue,⁶⁹ primarily evokes patterns of “old governance” associated with highly asymmetrical top-down processes, triggered from above by means of high external conditional benefits which often exceed the domestic costs of reform. In line with these approaches and drawing on countless other scholars who have underscored the relevance of cost-benefit calculations for change processes in Central and Eastern Europe, the present book will explain Romania’s de-Europeanization using a rational choice framework, inspired by Börzel and Risse’s logic of consequentialism.

• 3. What are the domestic responses to Europeanization pressures? At the member-state level, distinct forms of adaptive behaviour can be identified that differ both in the degree and direction of domestic change.⁷⁰ The effects of Europeanization are expected to vary depending on domestic mediation, ranging from absorption to transformation, with little scope for processes of de-Europeanization. Indeed, while grounding their models on both rational choice and sociological institutionalism scholars of Europeanization show a subtle inclination towards the historical institutionalist idea of path dependency. In most top-down Europeanization models, there is an implicit affinity with the thesis of the “stickiness” of institutions and policy arrangements.⁷¹ On the one hand, it is often assumed that a high level of misfit between European and domestically established practices and structures may lead to difficulties in the implementation of EU norms,⁷² as many domestic institutions “have been around much longer than the EU.”⁷³ Still, a significant part of the literature agrees—though not always explicitly—that once change has occurred, it becomes established. In a rationalist vein, scholars then go on to argue that domestic change is likely to be lasting as member states may either benefit from new rules or be reluctant to face the costs of reversing the newly acquired status quo.⁷⁴ The majority of social constructivist arguments lead to the same claim that political actors mutually influence each other’s behaviour, relationships and expectations, relying on the principle of pacta sunt servanda,⁷⁵ with socializing effects then being just as likely to lead to sustained domestic change.

  Taking as its starting point an observed formal reversal of reforms, the present study thus rejects the thesis of the persistence of domestic change. It also dismisses the premise that compliance and non-compliance depend solely on structural factors, highlighting instead the important role played by domestic political will. The institutional focus of top-down Europeanization research has already drawn criticisms from several authors who oppose the reduction of policy actors to mere facilitating factors and who consider such approaches to be excessively structural.⁷⁶ By the same token, we will support here the idea of an instrumental use of European rules by domestic political actors, and search for an explanation of de-Europeanization at the level of the political elite. Institutions are here viewed more as instruments for political leaders to realize their goals, with political structures depending heavily on decision-makers’ interests, their will and capacity to act. This is not to deny the importance of institutional structures, but to add to its actors-centred approach an observation of how structural factors may affect the conduct and preference formation of political actors. In a nutshell, it will be argued that Europeanization and reforms in Romania are driven by the rationalist logic of consequentialism; they are not however so much the result of EU’s adaptational pressure coupled with facilitating domestic factors, but follow from the preferences and strategies pursued by domestic political elites, who are able to overcome institutional and structural barriers in order to realize their goals. Persistence of reform would in this case reflect the stability in the preferences of the domestic actors, while conversely, de-Europeanization would mark a shift in the interests pursued at the domestic level by the members of the political elite. As we will see, a high level of misfit, a strong pressure for adaptation and the presence of domestic facilitating factors can account for sustainable domestic change, but only as long as the preferences of domestic political actors remain constant.

2.1.2.3 Europeanization East: The Conditionality-Driven Reform

Studies assessing the implementation of EU rules and policies have made valuable contributions to our understanding of the degree of reform stability and the level of domestic institutionalization of EU norms across European member states. As emphasized above, a recurring theme in the literature is the fact that Europeanization generates different adaptational pressures and different responses to them. A wide and still evolving literature addresses the implementation of EU norms (how they are transposed, enforced and applied in member states); it indicates the leaders and laggards in implementation and provides multi-country groupings based on shared Europeanization experiences and similar compliance records.⁷⁷ Oriented towards a territorial logic of Europeanization, studies of implementation have reviewed the impact of the EU on member states and groups of member states, attempting to stake out different regional clusters: northern,⁷⁸ southern Europe,⁷⁹ or Central Eastern and South-Eastern Europe.⁸⁰ Broad studies group European states according to their administrative capacity and their power to resist pressures to comply exerted on them by enforcement authorities,⁸¹ or according to their so-called culture of compliance.⁸²

What characterizes the Central and Eastern European (CEE) cluster is the significant gap between the transposition and the institutionalization of norms. Adopted legislation often fails to become effective in practice largely due to weak bureaucracies, court systems or civil society.⁸³ Already at the level of transposing legislation, the pattern that dominates in CEE is one of domestic political considerations, in which compliance depends largely on the constellations of actors and interests at the domestic level.

There is however a broad consensus, particularly among scholars of pre-accession Europeanization, that in terms of compliance the regional commonality of CEE derives less from a shared “culture of compliance” and the constellation of interests at the domestic level, and more from the fact that the Union’s newest member states faced a particular form of adaptational pressure that was determined by the EU’s conditionality mechanism.⁸⁴ It is broadly assumed in the early Europeanization East literature⁸⁵ and more recently in the literature on the Western Balkans⁸⁶ that domestic change, if any, is enlargement-led. Reform is triggered top-down through a mechanism of “reinforcement by reward”, through which a candidate is offered the opportunity for membership if it complies with the EU’s conditions and standards. Treaty-based sanctions are replaced by strong instruments of persuasion, and the Union denies assistance, association or membership and withholds conditional rewards for those candidates failing to meet the established criteria. Relying mostly on a rational choice perspective, Europeanization East scholars almost unanimously employ a top-down framework for their analyses, in which domestic change is brought about by a significantly high level of misfit between the Union and a candidate state, which sets in motion reforms. Being utility maximizers, the candidate states bear the costs of adaptation in their pursuit to secure EU membership, thereby diminishing the misfit.

There are two types of conditionality identified in the literature: the democratic conditionality and the acquis conditionality.⁸⁷ The former is an expression of the states’ requirement to adopt the general rules of liberal democracy, while the latter concerns the specific rules of the EU acquis communautaire explicitly formulated as prerequisites for EU membership. The former was intended as a precondition which would bind the respective states to a democratic course of future action, and was linked to the reward of opening accession negotiations with the EU. The latter implied a formal transposition of EU laws, which was linked to a much greater reward: the promise of acquiring membership.⁸⁸ Upon entering accession negotiations, domestic change in CEE became mainly driven by the acquis conditionality, with democratic conditionality usually playing only a background role. The European Commission continued, however, to monitor the democratic performance of states throughout their accession, and candidates faced the possibility of a breakdown or delay in negotiations.⁸⁹

Over time, the EU leverage translated into domestic change in Central and Easter Europe, yet mostly in those areas where the Union had a well-developed acquis.⁹⁰ At least since the establishment of the Copenhagen criteria and the mechanism for democratic conditionality, the EU sought to build and consolidate democracies in CEE, yet with a questionable success. The external incentives for reform played a major role in initiating democratic change, yet other domestic factors must have had a significant effect on the stability of such democratic reforms. The changes in Hungary and Poland referred to in the introductory chapter stand out as a proof of an inefficient democratic conditionality. Without any post-accession monitoring and sanctioning tools, the EU lacked, and still lacks, adequate mechanisms to prevent member states’ potential assaults on the rule of law and the democratic values.⁹¹

While the use of conditionality by the European Union during its Eastern enlargement has increased greatly in comparison with previous enlargement rounds, the literature singles out Romania and Bulgaria as the only candidate states in the region on which the Union was able to exert active leverage during their pre- and post-accession period.⁹² For Bulgaria and Romania the accession conditions were rendered more severe: in addition to the unilateral suspension clause, which allows cooperation to be terminated if either party does not comply, was added an unprecedented postponement clause, which allowed accession to be delayed in case the candidate proved to be unprepared. More relevant still, they were not only expected to meet tighter integrity standards before gaining EU membership, but their justice and anti-corruption reforms continued to be monitored long after their accession. The still ongoing Cooperation and Verification Mechanism (CVM) that the two new member states have been subject to since 2006 is aimed at ensuring progress in reform areas closely related to good governance and the rule of law: judicial reform, the control of corruption and, in the case of Bulgaria alone, organized crime.

As displayed in Fig. 2.2,⁹³ the EU’s policy of conditionality towards the states in CEE preserved a high degree of flexibility, allowing the Union to better regulate the range and timing for delivering its rewards to each candidate individually while taking into account the merits and performance of each accession state.⁹⁴ Anticipating the bigger challenges posed by Bulgaria and Romania, the EU tightened its pre-accession democratic requirements in order to prevent “the short term effectiveness of rule transposition in the context of conditionality (to) be compromised by medium-term ineffectiveness of implementation”.⁹⁵ Also bearing in mind the fact that Bulgaria and Romania had to go through significant institutional, administrative and political adjustments in a relatively short period of time and under strong adaptational pressure from above, a post-accession slowdown or even halt of reforms was to be expected and thus counterbalanced by an extended conditionality.⁹⁶

Fig. 2.2

EU’s policy of conditionality for Central and Eastern Europe

Can enhanced conditionality secure sustainable reforms? Scholars of Europeanization East do question the effectiveness of conditionality and rule adoption and implementation in the new member states once they acquired full membership.⁹⁷ They firmly maintain that the EU’s conditionality has an expiration date. Enlargement is viewed as a bargaining game with accession as the last and least surprising round and with conditionality unequally efficient throughout the game,⁹⁸ the EU’s bargaining power drastically diminishing once the accession date is set and even more so once the accession is complete. Consequently, it is in the phases before accession that the Union can successfully use its leverage to lay down and enforce conditions. Once accession is set and done, compliance and progress with further reforms have to be based on other mechanisms than those used in the pre-accession phase. Arguably, post-accession conditionality for Romania and Bulgaria was therefore established to counterbalance the diminished effectiveness of conditionality once the reward of full membership was delivered. The regular biannual reports issued by the European Commission and its monitoring under the Cooperation and Verification Mechanism aim at upholding the threat of withdrawal of benefits and subsidies for the two member states and ensure they act in compliance.

But were these tighter accession and post-accession criteria enough to secure long-term compliance? Empirical studies of Europeanization East paint a mixed picture of the institutionalization of change and the enforcement of the norms adopted before accession. In certain policy areas, the EU appears to have played a major role in triggering compliance, yet in other areas it has not.⁹⁹ All in all, however, despite the EU’s diminished leverage to ensure compliance in the post-enlargement phase, it still appears to have a rather strong influence in Central and Eastern Europe after having delivered the highly desired membership reward.¹⁰⁰ Assessing post-accession infringement of European legislation among Central and Eastern member states, research¹⁰¹ reveals that the success of pre-accession conditionality proved to be largely sustainable even after these states had acquired full membership. Quantitative data on compliance gathered in the countries that joined the Union in 2004 show that post-accession compliance in the EU8 proved to be “surprisingly good” and in fact at the moment of inquiry outperformed the old member states in terms of alignment with EU law.¹⁰² It is persuasively argued that domestic institutional obstacles or costs arising from an eventual reversal of change might have a positive impact on post-accession compliance. A “lock-in” of pre-accession-institutional change contributes to sustainable reforms after a state’s accession to the EU.¹⁰³ With a focus on the domestic costs of reform reversal and the potential domestic veto players that might oppose an eventual setback, such studies provide good reasons to expect post-accession Europeanization to be consistent with pre-accession developments. Relying on both the idea of enhanced and widened EU conditionality—extended in the case of Romania and Bulgaria to the post-accession period—and on the idea of a path-dependent trajectory pursued by new members after their joining the Union, much of the research assumes and provides reasons to believe that produced change is sticky. New member states are expected and seen to slow down or even halt reforms after their accession, yet the results already achieved are reasonably believed to persist during the post-accession period. One recent study on the EU’s ability to foster member states’ compliance in the areas subject to post-accession conditionality covered all CVM reports published by the Commission between 2007 and 2018; the developments in Romania in particular are regarded as fairly positive, with an optimistic outlook on the success of the EU’s “mechanism of monitoring without enforcement”.¹⁰⁴

Yet, a more fine-grained analysis conducted at the level of legislative drafting in Romania after January 2007 shows clearly that the mechanism of conditionality, even though extended through the post-accession period, lacked strength. Romania’s post-accession developments offer a puzzling picture: it successfully Europeanized in fields where less adaptational pressure was posed from above, and at the same time, it de-Europeanized its integrity and anti-corruption reform which was subject to intense monitoring both before as well as after accession. The EU proved much more successful in promoting positive economic effects and in enhancing Romania’s institutional capacity,¹⁰⁵ without however actually improving either the anti-corruption legislative framework, or the control of corruption on the ground. As counter-intuitive as it may seem, a high level of corruption and a highly developed social order are not at all mutually exclusive.¹⁰⁶

By making a clear distinction between the opportunity structure and the incentives pursued at the EU level on the one hand, and at the domestic level on the other, studies of post-accession Europeanization¹⁰⁷ rightly claim that the European Union’s leverage translates into domestic change only if the EU incentives are echoed by the interests pursued at the domestic level. As soon as the preferences of the domestic actors diverge from those of the EU, states are likely to halt reforms or even reverse them. Indeed, measures promoting justice and anti-corruption reforms, while serving the interests of a society at large become inconvenient for corrupt ruling elites, since the latter are tempted to compromise on the quality of adopted reforms and reverse the positive legislative changes that have been undertaken. Romania—and likewise, the Czech Republic, Slovakia, Bulgaria and Latvia—display high levels of “corporate state capture” throughout their post-accession period, with the domestic political elites instrumentally using public power to achieve private benefits.¹⁰⁸ In a valuable contribution to the body of Europeanization East literature, Innes stresses this aspect:

The stable party competitions and Weberian states of post-war western Europe were founded on strong elite commitments to democracy and socially embedded through sustained productivity growth and universally rising living standards. But those conditions have never existed in central Europe.¹⁰⁹

She gives a compelling account of how the evolution of political parties into “brokerage firms” in states like the Czech Republic or Romania reveal a pragmatic approach to politics, in which ruling elites use and abuse the existing democratic framework in pursuit of personal gains.¹¹⁰ Seen in this light, fighting corruption is very unlikely to be done by the very political elite which profits from the embeddedness of corrupt practices in state institutions. Implementing sound anti-corruption reforms would cause the already corrupt political elites to suffer more losses than gains.¹¹¹

Quantitative research¹¹² into the EU’s potential to influence corruption levels in Central and Eastern European states provides strong support for the argument that these countries’ control of corruption increased prior to their membership and significantly weakened in its aftermath. The candidates joining the Union in 2004 and 2007 generally experienced significant setbacks in comparison to their own anti-corruption efforts undertaken before accession. Such a shift was experienced not only by “the usual suspects, Romania and Bulgaria”,¹¹³ but also by Hungary, Lithuania, Poland, Slovakia and Slovenia. The observed U-turn can be explained by a change in the EU’s political leverage after enlargement. In the post-accession period, in contrast to pre-accession, the Union seems to have lost its ability to motivate and mobilize domestic opposition parties to pressure their governments to seriously fight corruption. The failure of Central and East-European opposition parties to challenge the corruption-prone practices of governments is not at all surprising in states in which “corrupt behaviour is the only game in town.”¹¹⁴ In contexts where corruption is endemic and where neither governments nor opposition parties are genuinely committed to achieving rule of law, the EU’s conditionality cannot generate substantial anti-corruption reforms. The present theoretical approach builds on this line of argument, stressing the crucial role played by domestic political elites in bringing the legal and social reality in line with EU requirements.

Following this logic, we can explain Romania’s reform reversal since January 2007 by focusing in particular on evidence of legal corruption, which occurs when legislators use their entrusted power in order to extract personal benefits, despite their declared commitments to integrity and good governance and despite the EU’s continuous monitoring and benchmarking. This argument is grounded in the assumption that the EU’s democratic and post-accession conditionality alone is insufficient to curb corruption and ensure the rule of law, and that the interests of the domestic political elite play a key role in the success of EU-driven reforms. As already mentioned above, the European Commission set high standards and ambitious requirements for Central and Eastern European states, and even more so for Romania, by means of post-accession conditionality. Yet, as a result, instead of implementing genuine integrity and justice reforms, Romania developed novel methods of abuse. Despite being the subject of intense monitoring through the Cooperation and Verification Mechanism, the member state not only failed to specifically and adequately outlaw corrupt behaviour, but it adopted instead legislative measures that show a shift from overt to more discreet forms of abuse. We cannot understate the importance of identifying (ideally at an early stage) the subtle ways in which political elites reverse legislation and weaken the mechanisms for curbing corruption.

By situating extensive empirical research within a revised framework for assessing (non-)compliance, this study is able to address a number of gaps in the literature on Europeanization. It contributes to existing top-down Europeanization literature in general by adopting a less institutionalist perspective and investigating the relevance of the elite’s interests for the effective transposition and application of EU norms, and contributes to Europeanization East literature by providing a more rigorous explanation of post-accession setbacks by placing the emphasis on domestic, rather than European, catalysts for change. This is not to suggest that the Union’s policy of conditionality is irrelevant for Europeanization and sustainable domestic change, but rather that the adaptational pressure posed by the EU both before and after a state’s accession is not the primary driving force shaping reforms. Successful Europeanization is highly dependent on the personal preferences of domestic political elites. In contrast to the literature that emphasizes the inherent stickiness of domestic reforms, the current research will build instead on the idea of the resilience and flexibility that is inherent in law-making, and thus bring into sharper focus the legislator’s ability to amend legislation on the one hand, and the rational motivation that informs policy change on the other. This approach allows us to assess Europeanization with a focus on preferences to be pursued, rather than institutions to be strengthened and capacities to be built. The domestic political elite is thought to be capable of overcoming any institutional and structural barriers to realizing its goals, especially in the context of (de)Europeanization; by acting in compliance before achieving full EU membership, the elite demonstrated that institutional capacities exist when there is adequate political will. In fact, this marks a phenomenon that still persists in most of the Central Eastern and South-Eastern European states, in which political institutions can only be as strong as their actors allow them to be.¹¹⁵

Europeanizing reforms aim to serve a broad European public, their design being detached from the narrow personal interests of individuals or particular groups. It would, however, be naïve to expect that all reformers always commit to such reforms. Domestic reformers, particularly in allegedly corrupt contexts, might advance, or on the contrary even frustrate, change in pursuit of interests other than those serving the society at large. As a result, they may reverse reform as soon as the newly acquired status quo becomes inconvenient. The aim here is to embark on an in-depth assessment of Romania’s legislative reforms shaped by EU conditionality with a careful view to laying bare the intentions and interests of the legislators in passing and amending the respective acts. The model put forward here offers a pertinent explanation of Romania’s post-accession de-Europeanization, its questionable political governance and its rather weak respect for the rule of law. An elite-based approach is needed for understanding what drives and constrains reforms in Central Eastern and South-Eastern Europe, and potentially in other EU member or candidate states, with a focus on the behavioural patterns of the political elites and the factors that trigger a self-interested conduct of these elites, their abuse of power and their readiness to sacrifice societal well-being for narrow personal benefits.

2.2 An Elite-Based Approach

The entire European construction, the commitments made and the numerous steps taken towards integration would not have been possible without the efforts undertaken by political elites. The contractual and legislative nature of ongoing European integration and Europeanization accords a key role to the members of the national political elites, who are guiding and driving these processes.¹¹⁶ Therefore, if one takes for granted the importance of treaties for the European integration, one cannot deny the pivotal role played by the political decision-makers in reaching those agreements and signing those treaties. Similarly, if one takes for granted the importance of law-making in the process of Europeanization, one cannot deny the relevance of national lawmakers in such a process of domestic legislative reform. It is the political elite in a state which is pre-eminent in deciding on the nature, form and content of any EU-driven law and, more importantly, on the extent to which the rule of law is de facto realized at the domestic level. An overwhelming amount of Europeanization literature, however, largely disregards these aspects, “attributing to elites, perhaps with the exception of initiating the process, the subsidiary role of merely following a predetermined course of history.”¹¹⁷

The present research departs from such deterministic narratives by questioning the stickiness of institutions and of adopted norms, and by disputing the fact that Europeanizing change is mostly the result of a path-dependent process of adaptation or inadaptation. It stresses instead the flexibility and reversibility of reforms and the direct and immediate impact that legislators have upon the legislative output, and thus on Europeanization itself. While acknowledging the importance of formally established institutions, the present theoretical model postulates that the political elites play a crucial role in shaping and changing institutional designs, and in controlling and managing a state’s political architecture.¹¹⁸ Drawing on elite theory, this model moves beyond existing research and links Europeanization literature with studies on democratic leadership.

The domestic political elite is crucial in bringing social and legal reality in line with EU requirements on the one hand, and the desires of the society at large on the other hand. The members of the political elite are the actors who, in pursuit of societal goals and honouring their European commitments, set the agenda for decision-making, and draft and adopt legislation which leads to successful Europeanization. Their behaviour and actions therefore play a highly significant role in both meeting European requirements and satisfying societal preferences. By assessing the behaviour and the interests pursued by the political elite, the present approach not only provides a more comprehensive analysis of compliance and non-compliance with European norms, it also gives a valuable account of the quality of political representation, by showing the extent to which political representatives respond to the preferences and concerns of those they represent.

The present argument is based on an understanding of Europeanization as primarily driven by the pursuit of societal interests and the satisfaction of societal needs. De-Europeanization, conversely, is associated with a divergence from societal needs and preferences. This does not mean that every society in Europe is here understood to be characterized by homogeneous preferences across its various population groups. The concern here is not with the plurality or homogeneity of societal interests, but rather with those instances in which political decision-making does not accommodate any societal preferences, and is reduced to a mere pursuit of personal goals by the members of the political elite. Assuming that private and societal interests tend to conflict in corrupt contexts, this book consequently seeks to locate the areas in which the preferences of the elected representatives and the preferences of the electors diverge. It does not claim that the decisions adopted by the elite necessarily contradict or ignore societal interests, but that when they do, it distorts political representation and hinders reform. Theorists of representative government, such as John Stuart Mill, have long voiced such concerns:

One of the greatest dangers … of democracy, as of all other forms of government, lies in the sinister interest of the holders of power: it is the danger of class legislation; of government intended for (whether really effecting it or not) the immediate benefit of the dominant class, to the lasting detriment of the whole. And one of the most important questions demanding consideration, in determining the best constitution of a representative government, is how to provide efficacious securities against this evil.¹¹⁹

The elite’s behaviour, its attitudes and preferences take on significance here only in terms of this relationship between rulers and ruled, between representatives and the represented. Turning the focus to the domestic political elite in studying the process of Europeanization does not imply that the preferences of the society at large are of lesser explanatory relevance. On the contrary, nonelite preferences in fact provide the metric against which to measure the appropriateness of elite actions, for the interests of the society at large are the ones that orient—or should orient—the decisions of the political elite. The model of de-Europeanization proposed here thus assesses the impact of the political elite on the process of domestic reform, by inquiring into the extent to which the members of the elite put their own personal interests before the interests of their constituents.

Highly relevant in this respect is not only the degree to which the elite allows personal—and not societal—preferences to shape domestic legislative decisions, but also the degree to which the nonelites are vocal in defending their own interests. The underlying logic in this respect is that in order for elites to adequately respond to nonelites’ desires and needs, they must know what these desires and needs are, and more importantly, they must have incentives to respond to them.¹²⁰ If the elected representatives are to consider the interests of the electors, a mobilization of societal action needs to occur. Indeed, the success of reforms and of Europeanization is a result of the preferences of domestic representatives, but also of the involvement and behaviour of those represented. An active participation in policy processes and a vigorous overseeing of the elite’s performance and conduct by civil society and the broader public (e.g. by taking part in advisory or governing panels, by filing petitions that invite policy-makers to consider specific measures, or by attending public consultations and contributing with expert opinions) enhances the quality of representation, and encourages decision-makers in legislative fora to pursue sound and stable reforms. Without such an involvement of the nonelite, the elite would remain “likely, when faced with a discrepancy between their own interests and those of their followers, to favour the former.”¹²¹ On these grounds, the inquiry into the interests of political elites in promoting or inhibiting legislative reforms that embrace Europeanization will be complemented by an assessment of societal engagement and public scrutiny over legislative action. This will be a recurring theme throughout the subsequent analysis.

At heart, this book explains reform reversal in European domestic contexts by proposing an elite-based theoretical model observing (1) the structural factors that influence the behaviour of the elite, (2) the preferences pursued by the members of the ruling stratum in their legislative capacity, and (3) the linkages or divides between elites and nonelites in what regards the content of adopted legislation. It thus examines the extent to which Europeanization, and de-Europeanization, respectively, are elite-driven and elite-interest-based process. In this section we will first refine our definition of an elite, conceptualizing it for the present purpose as a centre of legislative power. Secondly, we will reflect on structural factors and the extent to which they might impact the behaviour of elite members, their preference formation and their use of power. In line with more conventional theories on political elites, we will delve into the study of elite permeability, the circulation patterns and dynamics of the political elite, the institutional context in which elites are situated and the linkages between the elite members with a particular emphasis on their respective level of solidarity and value consensus. Finally, we will examine the nature of the relationship between representatives and the represented, between elites and nonelites. This will involve questioning the extent to which leaders and the governed are congruent in their values and interests, and examining the role played by nonelites (civil society, among others) as a control factor that secures the responsiveness of elites to societal needs and wishes. This discussion of political elites serves as an ideal preface for the next section, which will propose a model of de-Europeanization.

2.2.1 The Political Elite: A Site of Legislative Power

Classical elite theorists—Mosca, Pareto and Michels¹²²—recognize the existence in every society of a narrow ruling minority that monopolizes power and fulfils all the political functions: the political elite. They build their argument on the premise that power is distributed asymmetrically in society and that, for practical reasons, societies neither could nor should function otherwise. These early elite theorists advanced the argument that an elite of some kind is unavoidable in any stable society, as only a small minority has superior organizing capacities. Elites are crucial for any democratic system, which is propelled by masses but driven by political leaders.¹²³ Building on this premise of a functional imperative that every society needs to be led by a political elite, the present study will broadly subsume under the notion of political elite the group of politically effective actors in a society. The elites are, in brief, the holders of direct power over political decision-making.

The focus on the elite as a group of directly powerful actors requires first and foremost a clarification of the understanding of power employed here. Drawing on Putnam,¹²⁴ the present approach will distinguish in the first place between power as the ability to influence others and power as the ability to influence collective decision-making. The two are not mutually exclusive; it may be expected from a political elite to use its power over people in order to achieve power over decision-making. At the same time, having power over decision-making often results in influencing the behaviour of those people affected by the respective decisions, that is, in exercising power over people. However, in studying political elites, as Putnam argued, what alone counts is the elite’s ability to influence political outcomes.¹²⁵ Indeed, power over people is only politically relevant when used to produce political outcomes. Political elites have power over people as long as they “devise and deploy political formulas tailored to independently existing nonelite interests and sentiments.”¹²⁶

Accordingly, the notion of power employed in this book, even though of a pluralist nature, does not lend itself to the kind of relational zero-sum interpretation proposed by Dahl in his early studies. In broad terms, Dahl conceptualized power as a relation between people in which one actor exploits a set of resources in order to alter the behaviour of another;¹²⁷ any increase of one’s power can only come, in his understanding, at the expense of someone else’s power. For the present study, it is more appropriate to single out the non-relational and non-coercive dimension of power, and thereby adopt a positive-sum pluralist view. Political power here indicates an ability rather than a relationship between actors, excluding altogether the idea that power is exercised over people; it is “power to” rather than “power over”.¹²⁸ Sharp’s definition of power best captures the mechanisms under study here, and is well tailored to the theoretical point which drives this study. Power, he argues, “means the capacity of people to act in order to achieve objectives even in the face of opposition”.¹²⁹

At the core of this definition is the belief that power is not necessarily held by those few occupying pivotal positions, but rather that it rises from many parts of society.¹³⁰ The power of the elite depends, for instance, upon the consent of the society it rules and is not necessarily generated by the ruling few. Such a pluralistic perspective has a particular merit, in that it allows for the possibility that the power of the governing elite is either challenged or supported through the actions of various social groups, mass mobilization and civil engagement. What distinguishes elite from societal power, however, is the manner in which it is exercised, and the actual decisional involvement among the respective holders of power. If we take for granted the fact that plenty of individuals may have the power to affect collective decisions, yet few decide upon public policy, we can identify three degrees of power that shape political outcomes: direct influence, indirect influence and spurious influence.¹³¹ As Fig. 2.3¹³² illustrates, an actor or a group of actors can exert direct influence over political outcomes through participation in final decision-making, indirect influence by swaying the decisions of other actors involved directly in decision-making, or spurious influence by affecting policy-making directly while at the same time determining the stand taken by other actors with no capacity to influence the political outcomes directly themselves.

Fig. 2.3

Three types of political influence

The political elite as conceptualized here is distinguished by the fact that it is granted exclusive possession of direct power over political decision-making. Each society is formed of various groups of power holders, yet most of this power is an expression of indirect influence over political output; societal groups—forming the nonelite—depend upon the elite to implement decisions leading to the achievement of their goals. Building on this premise, the definition of political elite employed here resonates well, albeit not entirely, with Burton, Gunther and Higley’s¹³³ understanding of the term as a group of persons who are able, by virtue of their strategic positions, to affect national political outcomes regularly (their points of view and actions are important factors for any continuities and changes in regimes and policies) and substantially (without their support or opposition a political outcome would be noticeably different).

This rather broad definition applies to a number of functionally differentiated groups, including political, administrative, economic, military, religious or social elites, among which there are members of the legislature, members of the government, party officials as well as senior public servants; owners and CEOs of important business corporations or companies; leaders of large labour unions and pressure groups; top military officers; key religious figures; as well as prominent lawyers, economists or journalists.¹³⁴ Although used in recent studies evaluating democratic performance in CEE,¹³⁵ such a far-reaching definition would fall short of accurately reflecting how the behaviour of the political elite impacts on the legislative output and in particular on the transposition of European norms. Moreover, employing such an extensive definition would make it difficult to establish the boundaries of the elite group, and thus render the analysis ineffective. A much narrower use of the term will better serve the purpose of the present book.

As noted above, the notion of the political elite will here be essentially linked to the idea of direct influence on political and legislative outcomes and confined to those political actors who are directly involved in policy-making by initiating, drafting and adopting legislation (i.e. the parliament, the government in its capacity to initiate legislation and to legislate by decree, and the president as the promulgator of law). In restricting the analysis to those legislative bodies at the very top of the chain of representation, who exercise direct power over policy-making, and thus play a pivotal role in the process of Europeanization we will be able to focus more closely on the impact of their behaviour and interests in the process of adopting EU-driven reforms.

Narrowing down the understanding of domestic political elites to the legislative bodies is not to claim that legislatures govern and drive the entire process of Europeanization. Given, however, the definition of Europeanization as employed here, which is restricted to the transposition of norms generated at the EU level, it is critical to assess the interests and behaviour of legislators, who formulate, amend, adopt and promulgate European norms. They transpose European legislation, but also limit, check and balance governmental powers, and more importantly, they play a crucial role in linking governments with the represented, opening avenues for public participation and formalizing nonelite interests into law.¹³⁶ Therefore, an inquiry into the behaviour of the legislative bodies is relevant to understanding the progress of Europeanizing reforms, but also the level of attainment of societal goals. At the same time, employing such a highly restrictive notion of the political elite helps to identify and measure the occurrence of legal corruption and its impact on reform development, issues and nuances that may otherwise be overlooked or downplayed in the study of Europeanization.

Obviously, such an approach leads to a clear differentiation between the domestic elite and the nonelite. The political elite is made up of those actors whose role is to translate nonelite interests into specific legislative acts. This definition is close to Plamenatz’s¹³⁷ view of democracy: it is a government by consent of the governed, where the elected are entrusted by the electors to represent their interests, enjoying a free mandate and a high degree of autonomy in their actions. At the same time, Plamenatz claims that voters “must understand the significance of what they are doing”; they must grasp the relevance of their choice and be able to hold—ex ante or ex post—their rulers to account.¹³⁸ An essential point underlying the present conceptualization of the political elite is that elites and nonelites are equally but differently powerful. This rather bold statement follows from the fact that while political elites shape political outcomes, adopt collective decisions, define policies and activities of the state, and enjoy a high degree of independence in order to act in the name of nonelites; the nonelites still play a pivotal role in investing the elite with power and legitimizing their authority. Direct power is institutionally designed to lie in the hands of the political representatives, but the legitimacy and authority of the political elite ultimately rests upon how embedded the respective legislature is in society as a whole.¹³⁹ Accepting this claim is not to deny the importance of the rule of law, of due process or of institutional checks and balances, but rather to maintain that formal constitutional and institutional arrangements alone are insufficient to guarantee the pursuit of societal interests and prevent abuses of direct power. A constitution and a set of norms outlining the structure and the proper functioning of a democracy do not suffice to limit the power of the ruling few whenever they have the tendency to abuse this power. A counter-tendency is required; a need for societal forces with the capacity to constrain and control rulers’ abuse of influence and ensure their pursuit of societal goals.¹⁴⁰ In a weak society unable to exert indirect power over its political elite, the latter may extend its powers beyond its legitimate limits. It is on these grounds that the present study inquires primarily into the preferences and behaviour of the Romanian legislatures in the process of Europeanization, but assesses at the same time the societal interests, the civic responses to Europeanizing reforms and the level of engagement among those represented.

In sum, building on the premises of democratic elitism, the term political elite refers here to the political actors who hold direct power over legislative decision-making and thus, over Europeanizing reforms, and who are expected to act in compliance with their legal obligations under EU law and in a responsive and responsible manner towards the nonelites they represent. As has already been noted, the notion of the political elite gains much of its substance when used to examine the relationship between elites and nonelites. Consequently, in line with mainstream Europeanization studies, the present book determines how capable the domestic political elite is to comply with its European obligations, but at the same time it explores the extent to which representatives’ legislative choices reflect the preferences and needs of those they represent. In contrast to neo-institutionalist theorizing—which builds on the assumption that institutional design itself limits elite choices and prevents abuses—the present argument places a much higher emphasis on agency rather than structure, taking for granted the elite’s autonomy and its freedom of action vis-à-vis European and domestic institutional constraints. Institutional rationality recedes here to the background, the focus being placed on the elite’s behaviour, their level of commitment towards their European obligations on the one hand, and their level of responsibility towards societal needs on the other hand. Nonelite participation and public contestation are here regarded as effective instruments to influence the behaviour of political elites. If they are absent, European pressures for reform and EU conditionality cannot lead to successful and sustainable Europeanization.

Finally, it is important to highlight the fact that the notion of the elite is here not conceptually linked to the idea of a cohesive group, as it is by C. Wright Mills in his model of the “power elite”.¹⁴¹ While all members of the political elite, as political representatives, are presumably equally powerful to influence law- and policy-making, with an equal and effective opportunity to affect political decisions, the actual exercise of power and the ability to impact on decisions and policies is still a result of interaction among these members of the political elite, who compete in order to represent and protect the interests of their respective constituents. Different constellations of actors may adopt distinct positions and support different decisions at different points in time, which will affect legislative output to varying degrees. As employed here, the concept thus follows a pluralist logic: the elite consists not of a unitary group, but rather of a multitude of groups with a power structure that varies from issue to issue, such as Dahl has described.

There exist many different sets of leaders, each set has somewhat different objectives from the others, each has access to its own political resources, each is relatively independent of the others. There does not exist a single set of all powerful leaders who are wholly agreed on their major goals. Ordinarily, the making of government policies requires a coalition of different sets of leaders who have divergent goals.¹⁴²

The elite rarely represents a single general will, but fairly often a plurality of varying and conflicting wills.¹⁴³ The members of any political elite are seldom homogeneous in terms of their preferences and their control over decision-making, just as the members of any society are seldom homogeneous in terms of their interests and needs. Romania is no exception. Following this logic, the competitiveness rather than the cohesion of Romania’s political elite is here taken for granted. However, the extent to which this political elite is internally united or disunited is a detail worth considering, not least because the lack of an underlying consensus of the ruling class (with regard to the democratic rules of the game and the values to be observed while legislating) may contribute to political destabilization and reform reversal. Understanding how the structure of the elite, its integration or the lack thereof affects its members’ patterns of behaviour, and thus its impact on reforms, lies at the core of this argument and will be discussed in greater detail in the following section and substantiated empirically in the following chapter.

2.2.2 Elite Fragmentation

The structure of the political elite, and in particular the extent to which this elite is integrated, has important implications for the functioning of a democratic system, for the efficiency of policy-making, and for the quantity and quality of legislative output. As noted above, the present argument holds the pluralism of elite structures as axiomatic, the elite consisting of various narrowly based groups whose influence is confined to those issues that are relevant for their respective constituencies. A certain degree of fragmentation of the elite is in this case crucial for preserving the democratic balance. However, neither a too weak nor a too intense fragmentation of the ruling class in terms of power, views and pursued preferences is desirable in a democratic society. Best and Higley clearly formulate this concern in their pertinent claim that “neither a deeply disunited nor a tightly united political elite is compatible with representative democracy.”¹⁴⁴ A strongly united political elite may be hostile and intolerant towards preferences or positions diverging from their pursued ideology or goals; a very high level of cohesion and integration of the political elite is very likely to reduce its accountability, limiting its flexibility and sensitivity towards opposing viewpoints and interests. Conversely, a profoundly disunited political elite may be unable to reach a consensus either on issue-specific questions or on the rules of the political game in general. A very low integration of the elite may be equally harmful for a functioning democracy; a highly fragmented political elite only allows for a limited flow of information and impedes the creation of mutual trust among its members, which delays political reforms and eventually leads to stagnation.¹⁴⁵ The degree of integration or disintegration of the elite thus conditions the nature and stability of reforms, and more broadly, of the democratic governance.

Drawing on the work of Putnam¹⁴⁶ the following analysis will emphasize those structural characteristics of the elite that may significantly influence its level of integration or disintegration: the dynamics of the ruling stratum (the recruitment patterns and the permeability of the political elite), the institutional context (the existing cross-institutional synergies or conflicts of interest) and the linkages between elite members (their level of value consensus and their degree of group solidarity).¹⁴⁷ Conventional theories on elites consider the manner in which the elite renews itself over time—its circulation patterns—to have a profound influence on its level of integration, and thus indirectly affect the conduct of its members. Additionally, the institutional context—the division of roles and duties, the defined strategies and the adopted organizational loyalties characteristic of each law-making body—might either discourage the integration of the actors within it, if institutional preferences diverge, or on the contrary, might lead to complementary actions in the case of an overlap of institutional interests.¹⁴⁸ Yet the most central dimension of elite integration is the extent to which the members of the ruling stratum agree on policy procedures on the one hand, and on policy choices on the other.¹⁴⁹ The degree to which political elites are coherent with respect to the rules of the game, their agreement on political procedures and their commitment towards democratic principles and the rule of law, their readiness for cooperation as well as their level of mutual confidence are all crucial factors that contribute to elite integration.

The first factor assumed to be relevant for the degree of integration within the ruling stratum is the circulation of the elites. As noted above, the element most stressed by classical elite theory in determining the degree of elite integration or disintegration is the manner in which elites seize and preserve power, their permeability and renewal patterns. Both Mosca¹⁵⁰ and Pareto¹⁵¹ emphasize the tension inherent in every society between the elite group, formed by old members willing to preserve power, and new nonelite forces contesting this established ruling order. Such a conflict can only be avoided by a gradual elite change and a high degree of openness of the governing elite towards recruiting and incorporating nonelite members. Conversely, a lack of willingness on behalf of the old elite to recruit new members forces the ruling stratum into a more dramatic change: revolutions and radical replacements. Elite change patterns thus significantly affect the stability of the political system, while they at the same time influence the level of unity and consensus among political representatives.¹⁵²

Drawing on Mosca and Pareto, Higley and Lengyel¹⁵³ construct a model of elite circulation, proceeding on the same assumption that elites are the ones responsible for elite change.¹⁵⁴ Their model (Fig. 2.4¹⁵⁵) is parameterized in terms of the scope and mode of elite change, with the former addressing the horizontal range of affected positions and the vertical depth from which the new recruits come, while the latter refers to the speed and manner in which elite circulation occurs. With respect to the scope of elite circulation, the extent to which it has a wide or narrow range of affected positions co-varies with the vertical depth from which the newcomers enter the elite: either from second-echelon positions (shallow circulation) or from lower positions in the political hierarchy (deep circulation). Regarding the second dimension, the mode in which elite change occurs, the model distinguishes between sudden and coerced elite change (as in violent overthrows, coups or revolutions) and a gradual and peaceful incremental replacement of the elite.¹⁵⁶

Fig. 2.4

The circulation of political elite: patterns of change

Arguably, radical and coercive elite change is an exception rather than the norm. Replacement circulation involves the deposition of the old elite by violent revolution and the imposition of a completely new set of elites; this most likely leads to the establishment of an ideocratic regime and to the silencing of all opposing forces as a tactical repression. In terms of unity or disunity of the ruling class, this type of elite circulation is associated with the emergence of a totalitarian or post-totalitarian regime, led by a new, strongly unified elite with a single belief system, homogeneous values among its members and with networks running through highly centralized structures.¹⁵⁷ At the opposite pole with respect to elite integration is quasi-replacement circulation, which, equally sudden and coerced, occurs within an already divided ruling stratum and leads to the continuation of disunity and conflict. It is a rapid and violent displacement of the governing group by an ascendant clique from the uppermost political positions, which adds to the climate of distrust and suspicion while amounting to “no basic change in the character of politics, which remain poisonous and violent.”¹⁵⁸

Elite change, however, generally occurs in a slow, gradual manner, upon the retirement of old elite members, upon their voluntary resignation or upon their individual transfer. A classical elite circulation, gradual and peaceful in manner and wide and deep in scope, promotes the crystallization and persistence of a consensual elite drawn from different political and social roles, and that is thus not bound by a single ideological commitment. This consensual elite engages freely in disagreements and at the same time agrees on clearly defined rules and procedures. Such a process of elite renewal requires a high degree of permeability and openness on behalf of the ruling group, and is widespread among fully consolidated democracies. In sharp contrast, in non-consolidated democracies, reproduction circulation of the elite is likely to endure, being gradual and peaceful in manner but horizontally narrow and vertically shallow in scope. This pattern of elite change is associated by Higley and Lengyel with a “musical chairs exchange of positions”,¹⁵⁹ in which political leaders cling to power by whatever means necessary, thus contributing greatly to the fragmentation of the elite group.

Tentative and partial elite pacts and armistices aimed at staving off open political warfare may be fashioned, but no elite ethos of unity in diversity develops. Instead, conflicts remain heated and a ‘party of power’ is likely to emerge and throw its weight around. But whereas strategies and tactics in a divided elite involve sharp polarizations and exclusions, with opponents typically regarding each other as mortal enemies in unchecked struggles, those in a fragmented elite involve more complex manoeuvres across multiple and cross-cutting cleavages that skew the outcomes of, but do not prevent, democratic competitions.¹⁶⁰

In sum, Higley and Lengyel develop a meaningful and comprehensive typology of political elites based on the extent of their integration or disintegration and their circulation patterns, linking these aspects to different types of political regimes (Fig. 2.5¹⁶¹). It is this model that will guide the empirical assessment of the permeability and dynamics of Romania’s political elite; the less permeable the Romanian ruling stratum, the more intense its fragmentation, and consequently, the more shallow and unsustainable its reforms. In this case, the state is more likely to resemble a non-consolidated democracy.

Fig. 2.5

Relating circulation patterns to elite unity

The permeability of political elites, the manner in which new members are recruited and interact with one another are, however, not free from the influence of the broader institutional context. In addition to the aforementioned elite circulation patterns, the interaction of institutions in a particular constitutional context is highly relevant to the study of elite unity or disunity. Institutions themselves may encourage elite integration by building on organizational interdependence and a coincidence of pursued interests; leaders in institutions with overlapping interests will take complementary actions, whatever their personal affinities or linkages. Similarly, institutional contexts may inhibit elite integration through the pursuit of conflicting interests, functional specialization and organizational loyalties, which might force leaders to pursue different goals, adopt different perspectives or take divergent actions.¹⁶²

Generally speaking, even the constitutional provisions that limit government through the separation of powers in a system of democratic checks and balances are thought to “set ambition against ambition in a manner expressly intended to reduce elite integration.”¹⁶³ Even more so, in a European context of multi-level governance, national parliaments could be regarded as primarily assuming the role of scrutinizing agents and co-legislating bodies in their relation to their executive counterparts engaged in decision-making in European fora. Indeed, the polycentric structure of the EU requires national parliaments to be willing to engage more in European matters and exercise a control function; from this point of view, plenary debates may be seen as primarily a form of government scrutiny.¹⁶⁴ Viewed from a rational-institutionalist perspective, the institutional context and the relationship between national legislatures and their governments—acting both domestically and at the European level—has a principal-agent nature in which the act of delegation by national parliaments to their executives is at times obstructed by conflicts of interests or by structural information asymmetries. The sectoralization of Council decision-making at the European level may render more likely the possibility for ministers to use the Council to pursue preferences divergent from those of their legislatures and disregard parliament’s mandate or even the effects a proposal may have on various societal groups or other policy fields.¹⁶⁵ At the same time, the two-level game framework for interaction and decision-making within the EU widens the information asymmetries between ministers at the European level and domestic representatives.¹⁶⁶ Arguably, participation in the EU and the new role assumed by executives within the European decisional framework influences the behaviour of both governmental and parliamentary elites, which increases conflict and friction between institutions.

National parliaments across the EU have at their disposal various control mechanisms—such as no-confidence votes or parliamentary questions—through which they reduce the information advantage of their respective executives and oversee the decisions taken in EU affairs. To this end, national parliaments gradually improved their rules of procedure and committee systems, demanding more regular reporting from governments on their activities at the European level.¹⁶⁷ The executives at the same time generally act domestically in their role as the primary agenda setters and interact, within the format of parliamentary procedure, on the one hand with the government majority—having an interest in supporting the incumbents—and on the other hand with the parliamentary opposition, enjoying both an institutionally prescribed right and a strong interest to scrutinize the executive’s actions.¹⁶⁸ All things considered, it is plausible to argue that institutional factors may increase the level of elite fragmentation, particularly in a European multi-level governance structure.

The last factor affecting elite integration and coherence is the linkages among elite members, their shared values and mutual confidence. Political institutions are incentive-based structures, shaping the motivations of leaders, and therefore, their policy choices.¹⁶⁹ Yet, institutions depend heavily on the meaning they are given. The institutional framework can set limits and direct elite conduct, but it cannot reliably guarantee democratic and responsible behaviour, especially when elites are driven by self-interest, shaping political processes according to their own needs.¹⁷⁰ Elite commitment to due process to values and principles and to the rule of law is in fact an equally important dimension of elite fragmentation, having a strong impact on the stability of adopted norms and of the system itself. Stable pluralist democracies are typically characterized by a high level of elite consensus with regard to codes of conduct, displaying a high degree of predictability, commitment to a politics of bargaining and compromise, and a strong willingness to abide by the rules of democratic procedure.¹⁷¹

Political consensus on democratic procedural matters does not, however, preclude fundamental substantive disagreements. In line with the pluralist perspective adopted in this analysis, elites are considered competitive rather than consensual, and their behaviour is considered as rather adversarial in terms of their political and ideological choices. Leaders take often divergent positions on public matters, their preferences being generally closely tied to their party and ideological identification. Both parliaments and governments are party-political institutions. Political parties decide on the agenda, on the balance of power in the committees and the plenary and on the rights of individual members or party groups.¹⁷² From this point of view, the degree of value consensus among members of different political parties forming the elite is highly relevant for reforms and the legislative output. A sharply divided elite with a high number of veto players and a marked ideological incoherence will be constrained in its ability to produce significant legislation.¹⁷³

The existence of a shared normative basis and a certain degree of value consensus among the elites is closely connected to their sense of mutual trust and solidarity. As Putnam has noted, “[t]he mark of a unified elite, therefore, is not the absence of disagreement, but rather sufficient mutual trust, so that its members will, if necessary, forego short-run personal or partisan advantage in order to ensure stable rule.”¹⁷⁴ In contrast, an intense fragmentation of the political elite—resulting either from narrow and shallow circulation patterns, from conflicting institutional or organizational interests or from a lack of value consensus—makes instability of reform more likely, enabling the pursuit of narrow particular interests and contributing to the failure of democracy even if democratic institutions are in place.

2.2.3 Overlapping Interests Linking Elites and Nonelites

Legislative bodies serve the purposes of a democracy in a particular manner: “They are the only ones who combine a close attachment to the citizens of a polity with explicit legal rights to participate in policy-making. They are the locus in which the sovereignty of a people is institutionalized and the most prominent place where the people formulate their preferences and ideas in a politically effective way.”¹⁷⁵ The members of the political elite have then, by definition, not only the ability to influence policy-making significantly, regularly and directly, but they also play a key role as representatives by reflecting in their political actions the needs and interests of those they represent. Lawmakers will then largely mirror in their decisions the preferences of their constituents, while at the same time ensuring that the implementation of the respective decisions matches the desires of the electorate as far as possible. In this light, it is reasonable to argue that societal interests maintain and secure the linkage between the political elite and the mass public.

The thesis that political representatives favour the interests of those they represent is fairly widely shared in European studies, often taken for granted and seldom carefully scrutinized. Yet it remains quite unclear whose interests the political elite actually represents, what motivates political leaders, what their incentives are and what links they establish with their electorates. Arguably, both parliaments and governments are institutions whose members pursue party-political purposes while supporting the circular relationship between representatives and the represented: they offer citizens the chance to indirectly affect policy-making by selecting policy proposals made by political parties that compete for parliamentary and governmental mandates.¹⁷⁶ Democratic representation relies heavily on political parties publicly assuming different positions on various issues, opening up matters to debate and thereby providing their voters with policy choices. Political parties serve as a linkage mechanism in five respects: campaign linkage (they are in charge of the electoral process and the recruitment of political personnel), participatory linkage (they mobilize the electorate), ideological linkage (they provide voters with policy choices and alternatives), representative linkage (they ensure congruence between voters’ policy preferences and the ideological composition of parliament and government), and policy linkage (they translate their programmatic promises into policies while in office).¹⁷⁷ Political parties are then, at least in theory, essential instruments for representation, which serve as vehicles for the recruitment of political elites, but also as a medium through which citizens can indirectly participate in the political system.

It is true that nowadays, political competition is drifting more and more towards a battle focussed on form rather than content, with re-election and policy influence being by and large the main goals pursued by political representatives.¹⁷⁸ This political opportunism most likely leads to a failure of political parties to meet societal expectations, with political parties turning more and more into mere electoral organizations, losing their socially integrative function.¹⁷⁹ Regardless of this trend, the general claim remains valid that political parties pursue interests largely overlapping with the preferences of their respective constituencies; they orient their decision-making towards public interests and receive the approval of their voters. Even when elected representatives are primarily concerned with electoral or financial rewards, and with political power and career advancement, as long as getting into and remaining part of the elite depends, at least to some extent, on the support of the electorate, each member of the elite has strong incentives to pay regard to the views of those voting. Electoral competition is expected to push competitors to produce policies appropriate to the needs and desires of the voters.

The interests of the public are, at least in theory, the parameters that orient policy- and law-making. Note, though, that these parameters are often wide, living elites with significant leeway regarding their choices and actions. At the same time, more often than not, the voters have little in-depth knowledge of the legislative performance and the decisions taken by those representing them. Legislative activities of the representatives are seldom taken into account by the represented in their electoral choice, which gives elite members a high degree of flexibility in their policy-making. Indeed, legislative entrepreneurship does not affect in any significant manner the re-election of a representative.¹⁸⁰ This is not to claim that law-making is generally detached from the interests of the voters, but rather to suggest that political elites have opportunities to pursue policies and reforms not necessarily in the best interest of their constituencies, as they are generally unconstrained by the pressure of elections. While in office, the members of the political elite can set legislative priorities and make decisions based on considerations other than the interests of their electorate; they can invest time and energy in legislation or legislative amendments on matters they care about, disregarding the effects such acts might have on their constituents.¹⁸¹

In this context, an important consideration concerns what constitutes appropriate elite behaviour across a public-private divide. Recent political practices tend to obscure the boundary between public and private interests.¹⁸² While law- and policy-making are meant to serve the public good, being isolated from private narrow interests, all our current law and policy-makers are private individuals with their own preferences, ambitions and networks.

Politicians will be more successful if they can raise money from friends outside politics, make friendships with other politicians, draw on knowledge gained outside politics to evaluate the bills before them, and rely on their family members to facilitate their constituency duties (if only to serve as gracious hosts and/or hostesses).¹⁸³

Political decision-making is thus not only grounded on representatives’ evaluations of how a certain outcome would affect their respective constituency; the individual backgrounds, previous careers and personal experiences of elite members inform political decisions and lead representatives to allocate more legislative time and resources to certain issues on the agenda.¹⁸⁴ Scholarship demonstrated decades ago that representatives belonging to a minority group—based on race, gender, age or sexual orientation—are more likely to use their legislative involvement to pursue the interests of that respective group;¹⁸⁵ at the same time, scholarly work sheds light on how engagement in policy-making is influenced by the representatives’ prior occupations and backgrounds.¹⁸⁶ This is what Barry C. Burden persuasively calls the personal roots of representation. He refers to instances in which the legislative preferences of political representatives cannot be correlated to partisanship or to constituent interests.¹⁸⁷ Given these patterns of behaviour, it can be argued that the members of the political elite are primarily representatives of the groups they feel affiliated with descriptively, occupationally or experientially, and only secondarily of the people who voted for them.¹⁸⁸

Following this reasoning, the present argument is premised on the assumption that political elites may pursue interests that at times do not coincide with the preferences of their constituencies or of the society at large. If policy-making can be open to the pursuit of personal interests detached from the constituency’s preferences, it is reasonable to believe that it may just as well be detached from the pursuit of any societal interest. Political action may be driven solely by the narrow self-serving purposes of the elite, particularly in contexts plagued by high-level corruption.

It may be useful at this point to incorporate into the analysis another element that defines the difference between a low degree of elite representation and responsiveness in policy-making and no representation and no responsiveness at all: the notion of self-interest. When members of the political elite are motivated in their legislative decisions and policy formulations by societal interests—even though these might differ from those of their respective constituencies—their representative role is still fulfilled to some extent. The book at hand is concerned instead with those instances when policy- and law-making lack genuine representation and have devolved into a mere pursuit of individual interests and a self-serving instrumental use and abuse of the democratic framework. In the following, the pursuit of personal interests will therefore be described as inherently opposed to the pursuit of any societal interests. The personal interests of the political elite are here understood solely as narrowly defined individual incentives that are pursued regardless of the harm done to society at large, to the reforms that promote Europeanization or to the democratic rules of the game.

In an endeavour to identify the extent to which individual interests may impact on policy-making, the present book does not dismiss the possibility that political elites act on behalf of their constituencies or of society at large. The goals pursued by the political elite may not diverge from the needs and desires of the electorate.¹⁸⁹ Yet, as seldom as the case may be, whenever a state is ruled by self-interested actors aiming at using policy-making to extract individual benefits that go far beyond holding power or gaining electoral returns, its legislative output and its reforms are likely to be heavily compromised. Especially in corrupt contexts, it can be expected that political elites will fail to reconcile their individual interests with those of the citizens. Frequently, members of these political elites subtly abuse the democratic framework and the spirit of the law, while in fact they largely conform to the letter of the law. Behind the appearance of democratic institutions, self-serving elites might not genuinely adhere to the norms of solid democracy, political reliability and representation, and may deviate from these norms in action. This type of behaviour approximates legal corruption, when political representatives act in the belief that what is not specifically prohibited is acceptable.¹⁹⁰ They make legislative decisions with a view only to their own interests while failing to take into account any societal concerns. As Lengyel and Ilonszki rightly point out, such patterns of political behaviour are a characteristic of “simulated democracies”,¹⁹¹ in which elites merely imitate the acceptance of democratic norms and the rule of law. While being severely unrepresentative, in breach of the spirit and at times even of the letter of the law, the behaviour of political elites in simulated democracies does not, however, destroy the democratic framework; the democratic institutions in place continue to operate, with the actions of the political elite making their work relatively ineffective and precarious. Therefore, a fine-grained assessment of the relationship between legislative practice and the boundaries between public and private interests is thus necessary in order to account for instances of reform reversal in which no major institutional changes were involved. Paying greater attention to the behavioural patterns of the political elite and the goals pursued by political representatives while legislating could help make analyses of Europeanization more accurate and explain de-Europeanization processes.

2.2.4 Civil Society Bridging the Elite-Nonelite Gap

The present approach singles out the legislative bodies at the top of the representation chain as those actors capable of influencing political and legislative outcomes directly and whose actions and interests have a decisive impact on reforms in general and on Europeanization in particular. The political elite, so defined, fulfils a pivotal role in the process of Europeanization, being ultimately responsible for transforming both societal preferences and EU requirements into domestic law.

The cornerstone of the entire argument is that while legislative bodies are representatives of and responsible to the public that elects them, political practice shows that elite actions do not always meet nonelite desires. Legislative elites at times fail to refer back to the interests of their constituents while proposing and adopting reforms. Political elites may well be representatives only in a formal sense, and in fact be detached from the preferences of those they represent, failing to be faithful in their actions to the voters who elected them. Elite selection by means of elections does not all by itself guarantee responsible and responsive political leadership that pursues societal interests. Active participation in the process of ruling and being ruled is also a key responsibility of the nonelite, which needs to be vocal in expressing its preferences, needs to be aware of how these preferences translate into policies and needs to understand the significance of its political choices.

By and large, and without overgeneralizing, it is safe to say that in Romania, the mass public’s levels of political engagement, attentiveness and preparedness to respond to policy change were for a long time rather disappointing. The detachment and disenchantment of the general public with political action may be explained by a deficient downward flow of information from the political elites to their voters and upwards from the electorate to their representatives; the represented know too little about the decisions taken by their representatives in domestic or European fora, while leaders remain unaware of the preferences of their electorate. What is even more likely is that the disenchantment of the electorate with Romania’s political elite has been caused by endemic high-level corruption and the lack of responsiveness of the latter towards societal concerns; citizens may be inclined to engage politically only as long as their engagement produces changes, yet when the prospect of success is perceived as dire, they are very likely to abstain from political participation. In either case, as the empirical analysis will subsequently show, things change as civil society gains strength in filling this uncomfortable gap between the representatives and their represented. In some fields much more than in others, civil society gradually grows in its ability to fill the information gap and efficiently mobilize the nonelite in order to protect its interests through active participation and political and civic engagement.

As mentioned above, the understanding of democracy proposed here diverges from Schumpeter’s elitist model,¹⁹² in which political competition only allows the electorate to make a choice among representatives, but not among policies. The present approach departs from this view that the involvement of the electorate in a democratic government is limited to accepting or withholding its acceptance of political elites. Instead, it postulates that, in addition to producing political representatives, the active engagement of the general public is also necessary between elections in order for policies to be framed in accordance with a broad societal interest. Citizens need be politically informed and remain in touch with their political and legal reality, their participation being a means to influence the agenda and reach specific policy goals, even in contexts where high-level corruption is endemic. Elections do give the general public the opportunity to express its preferences directly and to elect leaders who represent its interests. However, electing political representatives is not a sufficient mechanism in order to ensure responsive and responsible elite behaviour and maximize societal welfare.¹⁹³ A retrospectively voting electorate may indeed hold elite members accountable, but only as long as it can discern whether and to what extent elites represent its interests, and can sanction or reward them with re-election accordingly. Yet, as voters often have insufficient information to evaluate incumbent governments, elections fall short of adequately inducing representation.¹⁹⁴ Similarly, prospective voting—in which electors evaluate candidates’ programs and promises for the future—leaves a great number of specific societal or group interests unrepresented; numerous issues remain unaddressed and latent until they are brought into the spotlight and included in a candidate’s political offering. There is, however, an alternative to the ballot box, or as noted above, a complementary to it: an active partaking in political life through civic engagement provides the possibility to pursue common interests, and to influence and control policy-making at all times. Civil society—broadly understood here as the space between individuals and political institutions where groups organize formally or informally to act in the public sphere—makes possible the aggregation and communication of specific group interests which may potentially produce policy change during the much longer periods between electoral contests; it also fulfils a very important control function, exposing and denouncing representatives’ misuse of office without depending on a fixed electoral calendar.¹⁹⁵ Moreover, unlike elections in which all actors and actions are evaluated at once, the exercise of control through civil society and civic engagement is sectorial and selective, and therefore more efficient, as it takes into view specific goals and focuses on particular policies or particular interests and wants; “citizens do not need to use one instrument to achieve many purposes simultaneously”.¹⁹⁶

The concept of civil society is used here to refer to a form of political participation based on self-constitution and self-mobilization, and focuses primarily on the pursuit of common societal interests as opposed to private, narrowly-defined ones, such as economic interests. The nuances in the meaning given here to civil society can be easily grasped with reference to what civil society is not: it is here distinguished from both a political society of parties, political groups and political elites, and from an economic society of firms, cooperatives or partnerships, corporations, privately owned media or other for-profit organizations.¹⁹⁷ In very broad terms, civil and political society differ from an economic society in that they constitute the domain of common societal interests as opposed to a domain governed by the pursuit of profit, which characterizes the latter. In this respect, the concept of civil society as used in the following distinguishes clearly between civil and economic society by suggesting that the actions of the former are not—at least not directly—oriented towards the satisfaction of material self-interest.¹⁹⁸ Equally relevant, it distinguishes also between civil and political society, isolating civic activism from a type of mobilization aimed strictly for political ends. This careful consideration of the nature and goals of the various organization and movements considered here as civil society is inspired by the warning example of Hungary, where the emergence of state-supported and state-directed forms of civic engagement amounted to the creation of a “fake civil society”.¹⁹⁹ In assessing here the strength of civil society, the letter will be regarded as a locus for social interaction between the economy and the state, with a logic of action distinct from both. It is constructed through self-constitution and self-mobilization, and it includes the sphere of association, public interest organizations, social movements and other organized forms of public action and communication. This book will intentionally place emphasis on civil society’s essential function to serve public well-being.²⁰⁰ More specifically, the focus is placed on organizations, associations, and movements whose primary aim is the construction of social bonds in order to communicate and protect public interest,²⁰¹ unsubordinated to any direct economic or political ambitions.

Civil society, as understood here, reflects societal concerns, distils and aggregates public preferences, thus forming a locus for communicating grievances and developing proposals for change. It not only plays a key role in the construction of public interest, but it is, at the same time, involved in protecting it. It holds public officials accountable, acting as a body of oversight and political control and exposing and redressing eventual elite abuses of public power.²⁰² The understanding of civil society proposed here thus combines these two views which are, in fact, two faces of the same coin: the neo-Tocquevillian idea of social capital, which presumes that civil society works by creating an associative texture of society,²⁰³ and the idea of social accountability,²⁰⁴ which is based on the model of oversight and refers to the different mechanisms employed for holding political elites accountable. In this light, the practices of civil society are on the one hand used as an indicator of what societal interest are, while on the other hand, they hint at the extent to which political and legislative decision-making responds to those interests and reacts to changes in societal preferences.

Civil society is thus pivotal with respect to its capacity to foster citizens’ engagement in public and political life and to enable the articulation of societal needs. It fulfils an important mediation function, reducing the information gap and the tension between representatives and the represented; it not only informs the represented and prepares them for retrospective judgement during elections, but it also monitors the state of mind of the electorate for the representatives, which in fact allows voters to gain influence over policy-making prior to elections.²⁰⁵ Civil society is not only an important facilitator of a broad policy dialogue, but it also serves as an important linkage between nonelites and the political elite by creating the space for citizens to organize and take action in order to protect and promote their interests.

A strong and dense civil society is the most important interface between representatives and the represented and completes the triad comprising citizens (with their raw interests), civil society (that aggregates and communicates those interests) and the political elite (through which public interests are reflected in policy choices). Civil society constitutes an alternative forum for rights to be advocated and protected and for interests to be voiced, which completes and complements the accountability of political representation.²⁰⁶ Its actions thus have significant impact on reforms in general and on Europeanization in particular.

In the context of Europeanization, civil society plays a critical role in identifying and voicing societal concerns and expectations expressed in relation to EU integration or EU membership. It acts as a conduit between citizens and decision-makers at both the national and the European level, assessing on the one hand whether European demands receive appropriate policy responses at the domestic level, and on the other hand, whether EU-driven reforms match societal needs and wants. The EU offers a broader context for civil society actors to voice and articulate social and political concerns. As early as 2007, Della Porta detected a trend towards the externalization of protests at the EU level, in which domestic non-governmental actors who feel weak at home use the supranational level in order to produce change in national politics.²⁰⁷ However, despite empirical evidence pointing towards an emerging transnational civil society within the EU’s borders, there is still a clear inclination towards using domestic sites in order to voice concerns, even when those concerns regard the EU’s policy output.²⁰⁸ This domesticated²⁰⁹ reaction to Europeanization does not necessarily imply diminished pressure or weaker impact, but rather reflects a sense of inertia across civil society to search for protection or relief at a national rather than supranational level.²¹⁰

The importance of civil society assumes a different emphasis in the context of Eastern enlargement, the EU’s accession or post-accession conditionality and the demand for a transposition of laws and norms. In the context of a challenging accession process in which states face great difficulties in meeting the conditions for EU membership, often lacking funding, expertise or administrative capacity, involvement of civil society and non-state actors in public policy-making was expected to be stronger, and such cooperation with civil society was thought to be capable of significantly strengthening the capacity of state actors to cope with EU-led reforms.²¹¹ However, research finds only limited evidence of sustained cooperation between political elites and civil society in Central and Eastern Europe,²¹² despite the high incentives of the former to seek the expertise and support of the latter; the non-governmental sector assumes an opposing rather than a cooperative role.²¹³ The second case study below will reveal instances of successful cooperation which led to a higher degree of stability and irreversibility of reforms. Romania’s nature conservation reform, associated with an improved capacity of civil society to participate in policy formulation and implementation, offers an example for sustainable Europeanization.

The engagement of civil society—active at the domestic level as an alternative form of political control—is all the more necessary as a crucial component in the broader European effort to curb corruption and enhance the quality of government in the Union’s member and accession states. Still, the EU’s accession and post-accession conditionality for Central Eastern and South-Eastern Europe makes scarce reference to civil society as an essential factor in the process of judicial reform and the fight against corruption. While stating clearly its commitment to integrity and the rule of law, the EU seemed to rely solely on the response of formal political institutions in curbing corruption at the domestic level. The practice, and until very recently, also the literature of enlargement-led Europeanization, disregarded domestic civil society as an important centre for action. Yet allegedly corrupt political elites are less likely to commit to pursuing sound anti-corruption reforms in the absence of societal pressure, and EU conditionality is not enough to ensure such a commitment. Therefore, in line with the most recent approaches to democratic consolidation in Central and Eastern Europe,²¹⁴ the present book will draw attention in its first case study to the yet-unfulfilled potential of non-state actors to restrict the abuse of public office and the reversal of anti-corruption reforms.

Civil society certainly cannot act as a substitute for formal checks and balances and cannot be regarded as a stand-alone trigger for meaningful Europeanization reforms and good governance. It cannot be a guarantee for sustainable reform, as policy-making at the European and domestic levels still depends, in fact, on political will.²¹⁵ And yet, it is reasonable to presume that in order for European policy-making to reflect societal needs and concerns, and thus for domestic reforms to be genuine and just, the self-organization of citizens in pursuit of common interests remains a very important condition.²¹⁶

2.3 Theorizing De-Europeanization

As discussed above, studies on Europeanization and the EU’s impact on member and accession states are inspired by a disproportionate optimism with regard to the success and irreversibility of EU-driven reforms. For more than two decades, a consistent body of literature has pointed out the importance of adaptational pressure from above which, if combined with supporting facilitating factors at the domestic level, can produce significant and lasting change towards Europeanization. This view held true particularly in Central Eastern and South-Eastern Europe, where states’ eagerness to acquire full EU membership was thought to induce compliance and to push domestic actors into adjusting to their European commitments. Most Europeanization East scholars view reforms adopted by acceding states as a direct consequence of the EU’s policy of conditionality, while any post-accession slow-down or halt of reforms is explained by conditionality’s diminished effectiveness. While cautiously anticipating that once membership is granted, the EU’s capacity to trigger domestic reforms would diminish and Europeanization would therefore stop or advance at a much slower pace, most studies are in fact hesitant to bring to the forefront the reversal of already produced change. Like the studies discussing the Europeanization of old member states, Europeanization East approaches design their models to accommodate the idea of sticky reforms and account for the reasons why states are unable and unwilling to pay for dismantling already adopted domestic changes.²¹⁷ They assume too easily that reform is incremental. Such a view underestimates the role of reform reversal, as Europeanization is seen rather in terms of a linear reform trajectory pursued by states, most likely at a faster pace before their accession and at a slower pace after joining the EU. The present approach, by contrast, rejects the thesis of the persistence of reforms. It acknowledges the effectiveness of EU conditionality in setting in motion domestic change in Romania, yet it questions its effectiveness in bringing about stable reform. It claims that Europeanization can be reversed, and aims to uncover the causes of such a reversal. In response to this research desideratum, this chapter proposes a theoretical model that accommodates the idea of reform instability and the potential for setback by drawing attention to the flexibility of law and to elites’ sovereign capacity to reshape their legislative responses to EU demands. The emphasis is thus self-consciously placed on those members of the ruling stratum who adopt legislation at the domestic level, who are viewed as key players in the process of Europeanization and are able to advance or frustrate change.

This model draws a fine line not only between instances of compliance and non-compliance, but also between reform steps that are inconsistent and those that are intentionally inconsistent with European requirements. In this manner, it highlights the direct and contradictory impact that self-serving legislators have on the legislative output and on Europeanization itself. Such a position is at odds with most studies of Europeanization, where scholars regard the preferences of the political actors as given: domestic elites pursuing Europeanizing reforms are treated as European-minded decision-makers seizing opportunities derived from their state’s convergence with the EU. This almost unanimously accepted perspective is here considered to be legitimate and fruitful, but not necessarily universally valid. When seeking to explain why a reform and its reversal are orchestrated by the very same domestic political actors, it becomes relevant to explore the motivations behind reform adoption or reform reversal, and the interests pursued by reformers; then, it also matters whether political elites are European-minded or not, and if their political and legislative choices are based on ideology, party loyalty, strategies to satisfy voters, or simply on self-interest.

Taking a closer look at Romania’s reform record after January 2007 gives rise to the question: What could explain the state’s post-accession selective backtracking? This chapter sets out to answer this research question by proposing an explanatory model of de-Europeanization that finds inspiration in the field of elite studies, and combines an assessment of a state’s EU-driven reforms with an inquiry into the patterns of behaviour and interests pursued by political elites responsible for adopting the respective reforms. This will provide the conceptual framework for the empirical investigation which will then follow in Chaps. 3, 4 and 5.

2.3.1 The Proposed Theoretical Model

Börzel and Risse’s²¹⁸ seminal model, and in particular their logic of consequentialism (Fig. 2.6²¹⁹), emerged as one of the major conceptual and theoretical tools for understanding the Europeanization of Central and Eastern European states.

Fig. 2.6

The classical rational choice approach to Europeanization

This rational choice explanation of the domestic impact of Europe has been echoed—even though not always explicitly—by numerous scholars focusing on CEE, who consistently argue in favour of a unidirectional causal relationship between (1) the EU’s adaptational pressure (triggered from the top down through the Union’s policy of conditionality), (2) the facilitators or inhibitors of reform at the domestic level, and (3) the resulting changes to domestic policies and institutions. While early studies of Europeanization East placed emphasis on the external incentives for reforms,²²⁰ more recent approaches have moved to stressing the relevance of domestic factors in promoting or inhibiting change.²²¹ But neither external incentives nor the identified domestic factors can adequately explain why a state may reverse its formally adopted EU-driven reforms.

A weaker leverage position for the EU means that it can exert less adaptational pressure on its member states, which may be reluctant to implement new reforms. This, however, cannot lead them to dismantle the cost-intensive reforms already adopted. Existing reforms (as opposed to the reforms not yet adopted) are thought to be locked in by the fact that their dismantlement would incur additional costs states may be unwilling to pay. Similarly, the identified domestic factors most often considered in the literature²²² to account for non-compliance (high costs of reform coupled with weak capacities for implementation, or the mobilization of veto players at the domestic level against the application and enforcement of reforms) cannot explain legal backsliding. They may inhibit the transposition of new laws or prevent the transposed legislation from being adequately enforced, yet they are not an adequate explanation for a reversal of formally adopted laws. The fact that EU law was already transposed successfully at the domestic level shows that the number of veto points was low enough and the domestic institutions were supportive enough in order to permit legislative adaptation to EU requirements.

Building on this literature, the following pages propose a theoretical model which explains the formal reversal of Europeanizing reforms by paying close regard to the manner in which the expected change also aligns with the goals pursued at the domestic level by the political elite (Fig. 2.7²²³).

Fig. 2.7

An interest-based approach to Europeanization

This model contends that the legislator’s preferences and the extent to which they correspond with the interests of society at large may have a significant impact on the course of reform. Persistence of domestic change (Europeanization) in this case can be attributed to the stability of the preferences of the domestic actors, while policy and legislative setbacks (de-Europeanization) are the result of a shift in the interests pursued at the domestic level by the members of the political elite. Under the assumption that the domestic political elite always acts in the interests of its electorate, the claim above would not differ substantially from other rational choice accounts of domestic policy change. Thus, it is here anticipated that representatives do not always act in the interests of the represented. The logic behind this prediction is straightforward: in contexts with high-level corruption, political elites are likely to seek the highest concentration of gains for themselves, even though this may incur significant social costs. The cost-benefit calculations of the political elite do not always take account of the benefits or costs at a societal level. It is on these grounds that the above rather unspecific independent variable (elite interests) will be further specified and contextualized (elite personal interests) in order to explain de-Europeanization. This model proposes that instability of reform be attributed to the pursuit of personal rather than societal interests by the domestic political elite.

Yet, assessing the preferences driving the adoption of certain legislative measures and the rejection of others poses methodological problems. In the law-making process, although representatives may pursue narrow individual interests that differ completely from those of their electorate, the legislative output may nevertheless meet constituents’ expectations. In other words, a pursuit of personal preferences by the members of the domestic political elite may just as well lead to promoting Europeanization as to inhibiting it. This obfuscates the causal relationship between elite preferences on the one hand, and Europeanization or de-Europeanization on the other. In order to escape this difficulty, the independent variable (the personal interests of the political elite) will be limited to those elite preferences that clearly diverge from any societal concerns. This conceptual choice and the specific understanding of personal interests is motivated by methodological considerations. Isolating the causal impact of the elite’s self-interested behaviour requires a definition of interests that clearly distinguishes between a pursuit of policy goals that correspond with societal preferences, and policy-making that responds only to the individual concerns of decision-makers. The nature of the interests pursued by political elites is therefore considered against the background of societal preferences and needs. The elite’s pursuit of personal interests as understood above is here explored for its impact on Europeanization and its potential for triggering reform reversal. Advancing such an interest-based model by focusing on the elite’s pursuit of personal as opposed to societal interests is uniquely able to provide an account of Romania’s post-accession de-Europeanization, while it at the same time correlates this development with the quality of political representation in the member state (Fig. 2.8²²⁴).

Fig. 2.8

The proposed model of de-Europeanization

The model opens the black box of how EU requirements and standards are incorporated into domestic legislation. The focus is on the relationship between personal preferences that motivate specific policy choices (the independent variable), legislative output and reform stability, or more specifically, reform reversal (the dependent variable). The relevant actors in this relationship are (1) the political representatives who enjoy exclusive power to adopt and amend legislation and (2) the represented, who by means of engaging in civil society, ensure the responsiveness of the elite to their needs and interests. As regards the political representatives, their patterns of legislative behaviour are influenced less by European compliance mechanisms and more by internal elite structural characteristics and dynamics. Elite configurations and circulation patterns cause their integration or disintegration as a group and their linkage or estrangement from those they represent. Unlike previous studies in the field of Europeanization, this account does not take for granted elite permeability, the robustness of party competition, the role of ideology and values in policy-making or the legislators’ respect for the letter and the spirit of the law. Political elites may be impermeable, ideologically non-committed, lacking in mutual trust and value consensus, and lacking in respect for both policy procedures and already made policy choices. Such symptoms are indicators of a high level of elite fragmentation, which itself is associated with a tendency on behalf of the political leaders to engage in legal corruption. As regards the represented, only a strong civil society that is able to aggregate, voice and defend public interests can prevent such a short-term self-interested behaviour of the domestic political elite. The lower the engagement and the fewer the constraints posed by civil society in a particular field, the stronger the pursuit of personal preferences by an intensely fragmented elite.

Consequently, postulating that the pursuit of personal (as opposed to societal or group) interests is more likely to occur in a fragmented political elite and is only possible when there are no constraints put in place by civil society, the present model proposes the assessment of the values of two antecedent conditions: the level of fragmentation within the ruling stratum and the strength of civil society. These antecedent conditions are considered to significantly enhance the impact of the independent variable mentioned above (Fig. 2.9).

Fig. 2.9

The proposed model of de-Europeanization (including the antecedent conditions)

This model supports the idea of an instrumental self-serving use of Europe and of European policies, which is particularly likely to occur in states not yet immune to high-level corruption. By focusing on the motivations behind representatives’ legislative choices in different fields of reform and their respective convergence or divergence from the public interest, this approach discloses more elusive forms of abuse and draws attention to the fine variations across policy domains. It refrains from painting a broad picture of an overall backslide, but instead uses a fine-grained analysis in order to derive lessons from one field and apply them to others, thereby drawing attention to a new range of factors to be taken into account when shaping expectations with regard to the success or failure of Europeanization.

2.3.2 Research Design

Despite all hopes that states would at least preserve the level of Europeanization they have reached before joining the EU, some areas of reform have proven more stable than others. Conditionality occasionally leads to thorough and lasting policy change, while at other times it fails to bring about genuine reform. As noted above, this book will focus on de-Europeanization, i.e. on instances where the Union’s pressure for reform did produce domestic change, yet this was not sustainable enough to have had a lasting impact.

Romania is in this regard an illustrative case, as it went through a fairly irregular process of Europeanization despite being subject to constant high adaptational pressure from the EU. Romania has been one of the two countries considered less stable, less prosperous and less dynamic than the East-Central European candidates, therefore having its entry into the EU postponed from 2004 to 2007. This postponement was intended to provide the state with additional time to adjust and implement reforms. During its candidacy, Romania was thus exposed for a longer time to the EU’s adaptational pressure and its streamlined conditionality. Moreover, EU conditionality was considerably broadened in scope during the 2007 enlargement, with an unprecedented post-accession mechanism of cooperation and verification being put in place to compensate for the diminished effectiveness of the Union to trigger compliance once the reward of full membership was delivered.²²⁵ This exceptional extension of the EU’s conditionality beyond the post-accession period means that Romania is to this day subjected to a monitoring regime that aims to ensure compliance through the threat of denial or withdrawal of benefits. In this light, Romania is an obvious choice for a study on (de)Europeanization, as it is one of the EU states with the highest overall conditionality burden, which in turn raises expectations with regard to the stability of its reforms.

Indeed, regular monitoring and benchmarking—specifically targeting the field of justice and anti-corruption—allow the Commission to continue to evaluate Romania’s level of performance and provide guidance in this sensitive area of reform, but also to single out the conditions under which further rewards will be delivered. It is not surprising in this context that Romania was denied Schengen Area membership, which was originally scheduled for March 2011, arguably less on grounds of non-compliance with the acquis frontalier, than on account of a declining trend in democratic governance and respect for the rule of law.²²⁶ The EU’s policy of conditionality, characterized by a high degree of flexibility, allows the Union to constantly adjust the range and timing for delivering rewards. Reconciliation of its conditions and requests with the goals and limitations of each individual state certainly adds to the strength of EU post-accession conditionality. Yet, as mentioned above, even personalized conditionality may not be enough to guarantee enduring domestic change.

Even though it did not undertake any major constitutional changes that would have significantly affected its already fragile democratic checks and balances, concerns were raised that Romania embarked on a de-Democratizing path similar to the one taken by Poland and Hungary affecting its overall level of Europeanization. The repeated attempts by the political elite to dilute the already adopted integrity legislation and to abuse the limits of their power in pursuit of personal interests may have, but in the end did not lead to a complete state and constitutional capture. The explanation given in the following pages as to what keeps Romania from sliding towards authoritarianism is more nuanced than that provided in the literature to date. The intense fragmentation of its political elite prevents them from acting in concert and forming a “quasi-monopolistic power centre”²²⁷ that could capture democracy, although at the same time it does make self-serving corrupt behaviour more likely. Also, the feeble but well-directed efforts of Romanian civil society proved to some extent successful in sanctioning severe abuses and in preventing any complete dismantlement of democratic checks and balances. These very efforts of civil society, coupled with a high level of public trust in European institutions, have in fact been the principal means through which not only democracy, but also certain Europeanizing reforms were kept in place, by giving traction to the EU compliance inducing mechanisms. However, the lack of an abrupt reversal of democracy does not mean the lack of an abrupt reversal of Europeanization.

Prior to the state’s accession to the EU in January 2007, legislative bodies at the domestic level showed a high degree of support for the conditions laid down by the Union, undertaking major changes in numerous reform areas. They have, however, attempted to reverse some of these changes since. This study, designed as a within-case comparison, attempts to provide a plausible explanation for these post-accession developments, accounting for what makes certain areas of reform in Romania more prone to de-Europeanization than others. It is the state’s post-accession compliance record that makes Romania a highly interesting setting for observing legislative behaviour and formal de-Europeanization. Romania offers a particularly puzzling example: it tends to Europeanize in fields where the EU poses limited adaptational pressure, while it de-Europeanizes in areas where it is subject to intense monitoring and benchmarking; it shows an abuse of the democratic framework in settings assumed to be rule-governed and transparent, yet without a complete democracy capture; it shows instances of reversal, but not of a complete reversal. This indicates that there is no linear correlation between external incentives and constraints on the one hand and domestic legislative performance on the other. It also indicates that there are other factors that keep reforms stable and prevent Romania from entering a deep democratic backslide, such as the strength of civil society.

2.3.2.1 Case Selection

The following empirical research will firstly engage in an analysis of Romania’s compliance record in the area of public integrity and the fight against corruption. This focus on integrity and anti-corruption reform is justified on the one hand by the increased priority placed by the EU itself on fighting corruption in Romania, and on the other by an expected self-interested behaviour of the largely corrupt political elite, which was likely to be reluctant to genuinely engage in curbing corruption. Corrupt practices have a strong potential impact on the implementation of the acquis communautaire, on the proper functioning of the single market, and on the quality of institutions and core democratic values that the Union seeks to represent. As mentioned above, the EU made significant efforts to trigger substantial domestic change in this particular area by introducing a post-accession system of benchmarks and sanctions for Romania, in order to regularly assess the state’s performance in this field. In essence, what makes this area of particular interest is precisely the fact that although it is under the Commission’s permanent supervision and monitoring, reform developments nevertheless remain uneven, unpredictable and inconsistent. At the same time, in no other area of reform is the contrast between elite and societal interests more pronounced, with numerous corrupt representatives being least inclined to act in the interests of the represented. Therefore, studying anti-corruption reforms in a political context already known to be affected by high-level corruption renders easier the discussion and identification of the personal interests of the political elite. While this will be discussed in Sect. 4.1 in greater detail, suffice it to say here that in a state where grand corruption remains high and notorious offenders are part of legislature, the adoption of sound anti-corruption reform is fairly unlikely, at least as long as political elites may face trial, mandatory prison sentences or seizure of their assets and as long as self-interested considerations take priority in forming political judgements. This area of reform was thus selected for observation on the basis of the very high value of the independent variable (the pursuit of personal interests by the political elite), which might explain the changes in the observed dependent variable (de-Europeanization).

The account of justice reform is complemented by a comparison with Romania’s environmental reform, which helps to render the impact of the independent variable more plausible. For Romania, environmental reform marked an equally high transposition challenge, given the quantity and quality of its existing laws and the high pressure from the EU on accession states to adapt and adopt an ambitious green acquis.²²⁸ Environmental policy is indeed one of the most developed policy fields in the European Union, which places accession states and EU members under considerable adaptational pressure.²²⁹ Countries aspiring to EU membership, Romania included, were required to adopt no less than 450 pieces of environmental legislation before their accession.²³⁰ This brings the two case studies on par in terms of the policy-load demanded. Yet, despite the massive policy transfer that Romania was expected to undergo during its accession period, its environmental reform was not subject to any post-accession monitoring mechanism. The adaptational pressure exerted by the European requirements in this area of reform is from this point of view high, yet lower than the adaptational pressure faced by Romania in its anti-corruption reform. On these grounds, and also due to the fact that this policy field requires significant financial and administrative resources, Romania’s reform would be expected to stagnate, or at least to advance at a slower rate in the post-accession period. Indeed, if taking these aspects into account, the state would be likely to respond to the EU’s adaptational pressure by Europeanizing at a comparatively slower pace or even by halting environmental reform after becoming a full member of the EU, when its compliance record is presumably inspected less often. However, decision-making in this field leaves considerably less scope for a pursuit of personal interests by the domestic political elite. Environmental policy is in general not only relevant for the citizens of Romania or of Europe, but for the entire planet. In adopting legislation for protecting the environment and natural resources, the Romanian political elite is surely less influenced by selfish considerations of personal gain. This second case study would hence display lower values on the dependent variable, which might predict either a linear or a stagnant reform (depending on the degree of EU adaptational pressure), but no reform reversal.

These two case studies will render plausible rather than test and prove the correlation between the pursuit of personal interests by the political elite and a state’s reversal of reforms. They offer a point of departure from which to better understand the process of Europeanization and to explain why the assumption held so widely in the literature—that a high level of conditionality brings about successful domestic reform—holds true only for certain reforms. However, in examining the success and stability of Romania’s Europeanization in two specific policy-making areas, both characterized by high and very high adaptational pressure posed by the Union, the focus here is more on the extent to which the self-serving behaviour of the political elite may interfere with the course of reform regardless of the EU’s adaptational pressure. A comparison is then drawn between the two cases, with the high variation in the explanatory variable (the personal interests of the domestic political elite) being expected to account for the divergent results in the degree of Europeanization in the two policy domains (Fig. 2.10).

Fig. 2.10

Case selection

The analysis of the concrete developments and subsequent amendments of two legislative proposals in these domains will illuminate the relations between the elite’s pursuit of personal interests and an eventual post-accession reversal of reform. Looking into the different provisions of each law and its development over more than a decade will help to overcome the difficulties of the small sample size:²³¹ such a fine-grained approach generates detailed observations at the levels of law production and amendment across the different law-making bodies and across the selected period of time. The two legislative proposals from which the analysis starts are Law 144/2007, establishing the National Integrity Agency (ANI Law), and Ordinance 57/2007 regarding the legal regime used to protect environmentally significant habitats and species (Nature Conservation Law), both adopted in 2007 and subsequently complemented by further acts on the same subject matter. These two legislative proposals, which constitute the main units of analysis,²³² were selected because (1) their adoption is highly relevant for both the European Union and the member state, and for the respective reform in general, and (2) they are very different regarding the extent to which they allow a pursuit of narrow personal interests by the political elite. Furthermore, the choice of the two laws is particularly suitable for a top-down analysis, given their legislative origin, emanating from the EU.

Law 144/2007 establishing the National Integrity Agency (ANI Law) responds precisely to one of the benchmarks laid out by the European Commission for measuring Romania’s progress in its justice and anti-corruption reforms after January 2007. One of the four benchmarks set by the Commission as part of its post-accession conditionality concerns the establishment of an Integrity Agency, the purpose of which is to ensure the integrity of high public and elected officials. It has “responsibilities for verifying assets, incompatibilities, and potential conflicts of interest, and for issuing mandatory decisions on the basis of which dissuasive sanctions can be taken”.²³³ This benchmark is particularly relevant here, since it is the only parameter against which the Commission measures Romania’s legislative actions, rather than the state’s implementation and institutionalization of norms or its efficiency and administrative capacity. It places Romania’s legislative performance under a magnifying glass, and targets directly the conduct of the state’s political elite. A smooth adoption of the ANI Law—granting a newly established Integrity Agency a robust mandate to detect and sanction conflicts of interests and unaccountable income—would indeed prove the country’s commitment to pursuing the fight against high-level corruption. It would significantly raise the stakes on grand corruption, and corrupt officials would face a much higher risk of being exposed.

At the opposite pole in terms of the potential pursuit of personal interests by the domestic political elite is Ordinance 57/2007 (Nature Conservation Law) aimed at the conservation of Romania’s wildlife. It derives from two EU directives: the 1992 Habitats Directive (92/43/EEC) and the 1979 Birds Directive (79/409/EEC). These two directives are the cornerstone of the EU’s nature-conservation policy, being highly important for the environmental agenda of the Union, ensuring “the long-term protection, conservation and survival of Europe’s most valuable and threatened species and habitats and the ecosystems they underpin.”²³⁴ Compared to other environmental sectors (such as waste management, air and water quality, or industrial pollution), Romania was granted no derogations or transition periods in this field. Concerned about the potential economic costs incurred by the implementation of stringent environmental standards, domestic governments often made efforts to obtain derogations prior to their state’s accession to the EU. Romania itself succeeded in negotiating eleven environmental derogations,²³⁵ but the Nature Conservation Law was not one of them, and Romania was expected to implement the respective acquis by the time of accession. This placed high pre-accession pressure on the member state to re-align its legislation so as to accurately reflect the environmental requirements agreed upon at the EU level.

Romania’s nature conservation reform ran in parallel to the state’s anti-corruption reform, with legislative amendments adopted by the same political elite, applying the same procedural standards, but resulting in very different Europeanization outcomes: an improved compliance. Both laws were amended through new legislation over time, with numerous new measures introduced that significantly affected their substance and core aims and their level of convergence with European norms or standards. Seen in comparison, they reveal how the Romanian political elite can be at times self-interested adopting legislative amendments to reverse uncomfortable reforms, and other times responsive to societal concerns allowing Europeanization to unfold.

2.3.2.2 Operationalization and Methodology

As discussed above, so far no model of Europeanization has provided a convincing explanation of post-accession reform reversal. This can be addressed by demonstrating that the interests pursued by the domestic political elite, largely neglected in the literature, can plausibly explain instances of de-Europeanization. Accordingly, the proposition on which this argument is founded is that a setback of EU-driven reforms is likely when political representatives striving for narrow individual gains find such a U-turn beneficial.

The stability of legislation at the domestic level, it is argued here, depends on the EU’s policy of conditionality, but more importantly on the interests pursued by the elite in the process of law-making or law-amending; if political representatives pursue narrow self-serving preferences, legislative reforms are likely to be reversed, regardless of EU conditionality. Two antecedent conditions were singled out as significant to the functioning of a self-serving political elite: the level of fragmentation within the ruling stratum, and the strength of civil society. These two indicators illustrate, on the one hand, the linkage among elite members, their integration or disintegration as a group, which heavily impacts the conduct of its members; while on the other hand, they illustrate the linkage between the elite and the nonelite and the extent to which the represented can communicate and protect their interests and maintain political control over representatives.

The research goal will be met by employing a backward-looking approach,²³⁶ starting from the explanandum, in this case de-Europeanization, and subsequently tracing back the factors that led to it, focusing in particular on the interests pursued by the members of the political elite, but also on the level of elite fragmentation and the strength of civil society. The point of departure is Romania’s puzzling de-Europeanization in the field of anti-corruption; the research is designed not to provide an empirical confirmation or refutation of a single-factor hypothesis, but rather to seek a detailed explanation for this surprising post-accession development. It seems highly plausible to use the pursuit of personal interests by the political elite in the process of adopting ANI legislation as a causal factor that brings about the reversal of Europeanization. The plausibility of this approach is further supported by the selection of a second case study, Romania’s nature conservation legislation, that is significantly less favourable to self-serving behaviour of the political elite. This case also has a backward-looking orientation, starting from representatives’ legislative choices in this new field of reform, coupling these choices with the elite’s pursuit of personal or societal interests. In sum, using process tracing, an identified level of (de)Europeanization will be correlated, on a case-by-case basis, with the extent to which the members of the elite pursue personal rather than societal interests, paying close regard also to the antecedent conditions that enabled the elite to behave in such a self-interested manner. In order to achieve construct validity²³⁷ and predictive reliability, the operational measures of the important variables will be detailed in the following.

2.3.2.2.1 The Level of De-Europeanization

As detailed in Sect. 2.1.1, Europeanization is defined in strictly legislative terms (as the transposition of European laws and requirements) and modelled as a reversible process. De-Europeanization is then an ex post formal repeal of certain provisions after they have been adopted and produced effects at the domestic level. The standard of comparison for assessing reform reversal is in this case Europeanization in so far as it has already been achieved.

As noted above, the empirical study captures Romania’s post-accession period, during which the two selected legislative proposals (both first formulated in 2007 and running in parallel) were repeatedly amended and revised. Each step in the formal process of law-making and law-changing is observed and assessed in relation to all previous steps, but also in relation to the benchmarks and requirements set by the European Union. The variance in the level of (de)Europeanization is thus extracted on the one hand by tracing the developments of each of the two legislative proposals and their linearity, and on the other hand, by the extent to which they respond, on a constant and permanent basis, to the EU’s adaptational pressures.

The narrow conceptualization of the dependent variable proposed here allows for it to be observed and measured directly, through document analysis. The law-making process, being a sequence of proposals, amendments and voting stages involving different institutions, is accessible to the public either in the form of live or recorded media (video recordings of the debates in parliament or the committees) or as published official documents. These will provide the basis of the empirical assessment of de-Europeanization.

In order to account for Romania’s reform progress or reform reversal a number of sources will be analysed in great detail: all the documents and media relating to the initiating of legislative proceedings, formal statements of motifs, the positions issued by parliamentary committees, the amendments adopted or rejected in plenary sessions in the two chambers of parliament, any constitutionality checks, and any changes proposed during the law’s promulgation. At the same time, this study will pay close attention to the reports, letters of formal notice, reasoned opinions or any other documents drawn up for infringement proceedings by the European Commission. These documents will clearly illustrate the expected European standards and the domestic developments to be achieved, specifying which provisions of the laws remain intact and which are added, modified or removed.

Since the formal process of law-making affects the content of legislation, this analysis is equally concerned with not only the substantial but also the procedural aspects of the law-making process. On the substantive side, it will scrutinize all the provisions within the two pieces of legislation and all the amendments brought thereto, keeping in view the level of coherence and stability in law-making, the legislative intent and the convergence with or divergence from European requirements. On the procedural side, it will consider the legislative performance, the efficacy and appropriateness in the law-making process and the extent to which the legislative procedures serve the same aim as their form does, i.e. whether they are in harmony with the spirit of the law. In short, de-Europeanization is reflected in the adoption of formal legislative changes, but also in any procedural issues that may unjustifiably delay or hinder the enforcement of the respective laws.

2.3.2.2.2 The Elite’s Pursuit of Personal Interests

As detailed above, the concept of personal interests was for the scope of the present argument insulated from societal interests. A pursuit of personal interests by the political elite approximates in this case legal corruption, a self-serving use and abuse of the legislative framework for individual gain at the expense of the public interest. This conceptualization in fact rules out those instances in which a pursuit of personal interests by the political elite brings about legislative outcomes that are at the same time responsive to public needs (as, for instance, vote-maximizing and office-seeking goals). Only that behaviour that takes into account individual rather than public concerns is here believed to significantly affect the process of Europeanization.

However, this independent variable, the pursuit of personal interests by the political elite, poses some difficulties for empirical research. Individual interests orienting legislative decision-making cannot be directly observed. The present analysis will therefore infer the preferences that orient political decisions from (1) the chosen courses of action, (2) the justifications provided by the representatives and (3) the extent to which the adopted measures are aligned with the needs and wants of the represented. Let us take each of these points in turn.

• 1. The nature of the preferences pursued by the political elite will be determined empirically first and foremost by relying on the representatives’ choices among alternative courses of action. The preferred legislative solution, reflected in the voting record of each member of the elite, will be assessed in terms of its implications and the benefits to be derived from it. To this end, each legislative amendment proposed and voted upon in plenary sessions or in committees will be analysed, with particular attention being given to what consequences they produce and for whom.

• 2. In contrast to most rational choice approaches, the present analytical framework does not assume that political elites are inevitably self-interested actors. They may pursue various goals, and be compelled to explain what motivates their legislative choices, to justify their decisions. These justifications serve as important indicators of the interests pursued by political decision-makers, and are a way of legitimizing one’s preferences by proving their compatibility with shared societal goals.²³⁸

  Actors who in truth seek to maximize their own interests or those of their clients, and who care not for the common good, nevertheless are forced to use the mode of justification in political discourse.²³⁹

• 3. The failure to adequately justify their choice of legislative action may point to the elite’s disengagement from public interest, as well as to poor legislative representation and responsiveness to societal concerns. On that account, the chosen courses of action and the justifications provided for them by the members of the elite will be evaluated in relation to societal preferences on the matter. Public opinion polls, participation in political movements and demonstrations, or any other collections of public sentiment will provide relevant evidence with respect to the needs and wants of the represented, and the degree to which elites respond through law-making to these needs and wants.

  No in-depth interviews were conducted with members of the political elite, as such interviews would fall short of accurately revealing the interests pursued by elite members in their legislative action; interviews were believed to be—for this study—rather unlikely to generate new insights into what motivates political leaders and potentially lead to false conclusions. As a result, in order to account for the pursuit of personal interests by the political elite, the present book relies merely on clues gathered from legislative practice itself (choices for action, justificatory practices and responsive law-making).

  Specific attention is also paid to two antecedent conditions that are able to foster or hinder the elite’s pursuit of personal interests: the fragmentation of the elite, and the strength of civil society. A high value of these two antecedent conditions is considered to significantly enhance the impact of the independent variable described above.

2.3.2.2.3 The Fragmentation of the Political Elite

The extent to which political elites are integrated or disintegrated has important implications for the quality of legislative output, and thus, for the quality of representation. While a strongly integrated political elite may be hostile and intolerant towards opposing views and interests, thereby harming the functioning of a democratic system, a highly disintegrated political elite may be equally detrimental to democracy, allowing for a very limited flow of information among its members, impeding the creation of mutual trust, and thus inhibiting reforms and leading to stagnation or even to reform reversal. The higher the level of elite fragmentation, the more likely it is for the members of that elite to adopt a self-serving behaviour and instrumentally use the democratic framework for private gain. Guided by the scholarly literature on elites, this study will posit that an excessive fragmentation within the ruling stratum occurs when the following conditions are reached: (1) a narrow and shallow circulation of the elite and a lack of permeability, (2) an institutional context marked by cross-institutional conflicts and (3) a lack of solidarity and value consensus among elite members. Let us look at these conditions in more detail.

• 1. Elite dynamics, their renewal patterns and the manner in which they seize and preserve power significantly affect the level of unity and consensus among political representatives. Whenever elite circulation is horizontally narrow and vertically shallow in scope, political leaders tend to cling to power by any means possible, perpetuating a climate of distrust and political tension. In order to adequately grasp the patterns of elite renewal in Romania, they will be measured over a period much longer than the time after the state’s accession to the EU. The empirical analysis will focus on the highest levels of political leadership in Romania, and inquire into how many of the prominent leaders of the 1990s are still active in the highest political echelons. At the same time, the permeability of the ruling stratum will also be measured with reference to the changes in the personal composition of the elite and the degree to which subsequent election results led to broader or narrower political renewal at the national level. While numerous changes may occur in the positions held, the composition of the elite may remain largely unmodified, with traditional elite members merely rotating through positions of power. For this reason, the circulation of the elite will be assessed both by examining the dynamics with regard to key leadership positions and by reviewing the overall fluctuation rate, the rate of newcomers to the elite group.

• 2. Regardless of its circulation patterns, intense fragmentation of the elite may be explained by institutional divergence, conflicts of interests and a lack of synergetic efforts. Such a lack of overlapping interests and divergent organizational loyalties are not at all new if explored against European multi-level governance. Members of government may, and often do, use supranational decision-making to pursue preferences that are sometimes at odds with those of their legislatures, this compelling the national parliament to assume an oversight role and control its government’s EU policies. Such a positioning, on both sides, may significantly alter the relationship between elite members and increase the level of fragmentation within the ruling stratum. The impact of the institutional environment on elite behaviour and cohesion will be addressed by an analysis of the legal and constitutional roles of different state powers in Romania, particularly after January 2007, when the state gained EU membership. The manner in which EU accession altered the terrain and ways of policy-making will also be explored, as will the level of convergence or divergence in governmental and parliamentary preferences and the extent to which the two institutions act in a complementary, or rather competitive, manner. The text of the Constitution itself will serve here as the basis for discussion. Data from secondary sources will be used to identify the trends in the elite’s use of its constitutional powers. These data will be supplemented by recent studies and reports or by official declarations sanctioning an eventual lack of cooperation between the government and the Romanian parliament.

• 3. The third factor determining the level of elite fragmentation is the achieved degree of solidarity and value consensus. Representatives’ commitment—or lack of commitment—to the rule of law and due process has a strong impact on their functioning as a group, on the stability of adopted norms and eventually, on the democratic system itself. While assessing the level of solidarity and value consensus, the present study will be less concerned with the ideological distance between elite members, but rather with their respect for procedural matters, political predictability and stability. It is not implied that achieving solidarity and value consensus results in a lack of substantive disagreements, but rather that it leads to a sustained willingness on behalf of the political leaders to abide by the rules and act in a predictable and responsible manner, with preferences remaining tied to their party and ideological identifications. A constant forming and breaking of coalitions, a grounding and dismantling of political parties, and a constantly shifting party membership of individual representatives account for an unpredictable and antagonistic elite behaviour, and are most probably not balanced by any ideological commitments. An analysis of the alternation of Romanian political parties in power, the lifespan of coalitions and the percentage of representatives shifting their party membership will thus provide relevant evidence on the level of solidarity and value consensus, and reveal a more or less fragmented political elite.

  It is important to note that no variation on a case-by-case basis is expected in terms of elite fragmentation. Romania’s ruling stratum is likely to remain equally fragmented throughout the entire period of analysis, regardless of the reforms debated. Fragmentation requires fulfilment as an antecedent condition, without which political elites would be more inclined to pursue group or societal interests, but as a factor, it does not refer to substantial aspects of reform; therefore, it does not co-vary in relation to the laws under consideration. On these grounds, the fragmentation of Romania’s political elite will be discussed in a separate chapter—Chap. 3—before proceeding with the analysis of the two selected case studies.

2.3.2.2.4 The Strength of Civil Society

Relying on the assumption that elected representatives would tend to act differently if they were constantly made aware of the preferences of their electorate, and would refrain from self-serving decision-making if they were under close societal scrutiny, the present study focuses on the strength of civil society as an essential condition affecting the behaviour of the political elite and thus, the stability of reform. Civil society as understood here includes two aspects: one relates to its role as an interface between representatives and the represented (distilling, aggregating and communicating public interests); while the second relates to its role as a body of oversight and political control (holding public officials to account, exposing and redressing abuses of power and corruption). Under the notion of civil society are subsumed both the idea of social capital and the idea of social accountability. Accordingly, the strength of civil society will refer here to both the associative texture of society, its capacity to communicate public grievances and develop proposals for change, and also to its control function and its capacity to restrict the abuse of public offices by the members of the elite. The indicators used to assess the strength of civil society will relate to both these roles; thus, on the one hand it is measured in terms of the number of organizations set up to formally articulate shared interests in the two fields, the extent to which these organizations prioritize the discussed issues in their work, the impact they have on policy-making and their level of collaboration with the government or with legislative bodies; while on the other hand it is measured in terms of their public reach and the number of participants they involve in social movement activities, as well as their potential to influence legislative decision-making through their public reactions to abusive elite behaviour. In order to map civil society organizations and the environment in which they operate, and in order to measure their strength, the empirical analysis will rely in the first instance on global indexes such as USAID’s Civil Society Organizations Sustainability Index, the CIVICUS Civil Society Index, Charities Aid Foundation’s World Giving Index, the Hudson Institute’s Philanthropic Freedom Index, and Freedom House’s annual Freedom in the World and Nations in Transit Reports. This broad analysis will be complemented with evidence gathered from published research that addresses directly the development and practices of civil society in particular fields of activity. Additionally, a detailed account of the activities in several major organizations and movements in the two fields will provide a clear understanding of their potential to aggregate public interests, and the challenges and limitations they face in successfully protecting these interests against legislative abuse.

2.4 Conclusion

This chapter proposed a model to explain de-Europeanization. Instead of trying to identify factors that lead to successful reform, it focuses instead on reversal and disruption; instead of trying to assess whether, and to which extent, joining the European Union has an impact on policies at the domestic level, it points out the factors that can cause legislative setbacks. The aim is to find a plausible explanation for Romania’s selective backtracking and puzzling de-Europeanization in the area of justice and anti-corruption.

The formal reversal of reforms is explained with reference to the elite’s pursuit of personal interests. Having developed the theoretical model in its conceptual, methodological and operational details, the challenge now is evident: how can the legislative preferences of the political elite and the nature of these preferences be unpacked? It seems as if this book sets out to measure the unmeasurable. Engaging in an analysis of private interests of the domestic political elite gives rise to serious methodological problems, as individual preferences are almost impossible to identify and measure. It is particularly difficult to assess whether the political elite is really self-serving in its legislative decision-making when almost every policy or legislative reform is framed in terms of public needs or public interests. However, the author strongly believes that it is precisely this variable that merits close attention, as it is most likely to provide an accurate account of Romania’s process of de-Europeanization.

Only in a fragmented political elite would representatives be inclined to shape legislative reforms in accordance with narrow personal—as opposed to group or social—preferences. It is a high degree of elite fragmentation that conditions de-Europeanization by making legal corruption more likely. On these grounds, Chap. 3 will examine the level of fragmentation within Romania’s ruling stratum before we move on to engage in an extensive discussion of the two case studies. The picture that emerges as a result seems at first glance to suggest that any opportunistic political elite in a democratic system could change the course of legislative reform in an effort to extract personal profit. However, this relationship holds firm only when there are no constraints in place to prevent such an instrumental use of the democratic framework by political decision-makers. As the two case studies below will make clear, the existence of a strong sectoral civil society with capacities to communicate the needs and interests of the represented in a particular field, and with the power to hold elites accountable, is an essential condition framing the adoption of sound and stable reform.