Fighting corruption in Croatia with the prospect of European Union Membership: on the non-sustainability of EU conditionality in policy fields governed by the soft acquis communautaire and lessons learned from the previous enlargements to Slovenia, Bulgaria and Romania.

• Author: Hardy, Angelique
• Position: EU AS A GOOD GOVERNANCE PROMOTER

"Greek tragedy is based on myth, and Croatian on corruption." (Ivica Djikic) (2)

Introduction

Croatia could conclude accession talks in 2010. Such was the message that awaited Ivo Josipovic upon his arrival in Brussels for his first visit to the European Union (EU) headquarters as newly elected Croatian President (3). However the positive statement has been counterbalanced by Brussels' officials reminding that Croatia still needs to fulfil some conditions prior receiving the membership sesame. Herman Van Rompuy, President of the European Council, namely declared that "negotiations for accession could be concluded [in 2010], provided that all conditions are met" and specified that "Croatia has to make some improvements in certain areas" (Balkan Insight 2010).

Conditioning EU membership on the fulfilment of specific criteria is characteristic of the method used by the EU to prepare its enlargements. The pre-accession conditionality method was inaugurated in 1993 with the adoption of the so-called Copenhagen Criteria as a response to the application for membership by the Central and Eastern European Countries (CEECs), which were facing great challenges to conform their societies to European standards. Part of the Copenhagen criteria is the political criteria (4). These require the Candidate country to have stable institutions guaranteeing democracy, the rule of law, human rights and respect for and protection of minorities. Though not explicitly mentioned, the fight against corruption comes under the scope of the political criteria since the level of corruption is a crucial determinant of the quality of governance (Vehovar and Jager 2003) which in turn influences the quality of institutions. According to the conditionality principles, a Candidate country shall be 'ready' to be invited to join the EU, in other words all criteria must be fulfilled including that the issues related to corruption should have been tackled by the time of accession. However, empirical evidences backed up by international organisations' reports (5) demonstrated that the fight against corruption has experienced some backsliding in newly integrated countries and notably in Slovenia, Romania and Bulgaria. In the particular case of Romania and Bulgaria, the situation is even more striking since the EU imposed on both countries a post-accession monitoring mechanism--the Cooperation and Verification Mechanism (CVM)--to control the appropriate implementation of measures intended to curb corruption. Obviously the similar backsliding pattern and the apparent lack of willingness from the politician elites to seriously fight corruption--and especially high-level corruption--cast some doubt on EU conditionality and its post-accession sustainability once the membership lever is gone (Epstein and Sedelmeier 2008; Sedelmeier 2008). The concerns with the actual long-term sustainability of EU conditionality are of the greatest importance since the instrument is currently used in countries presenting serious corruption levels such as Croatia. Since the launch of the accession negotiations in 2005, the European Commission (EC) continuously denounced corruption as a serious area of concern in Croatia. Relying on the previous Slovene, Romanian and Bulgarian post-accession experiences, a backsliding scenario shall be considered.

The study will demonstrate that a distinction should be established between hard acquis and soft acquis, the combination of the two constituting the acquis communautaire. The hard acquis refers to the rules that Member States shall comply with at the risk of being prosecuted by the EC as offender to the EU law. Hence the hard acquis encompasses all kinds of legally binding acts, from the Treaties and the currently enacted legislation to the verdicts ruled by the European Court of Justice and the measures agreed under both Foreign and Security Policy and Justice and Home Affairs. Unlike the hard acquis, the soft acquis refers to the rules that are not legally binding but that provide the Member States with certain guidance and recommendations. It notably includes the communications and recommendations issued by the EC, the resolutions and recommendations of the Council and the conclusions delivered by the EU Presidency (Petrov 2008). While post-accession compliance towards hard acquis proved to be guaranteed, post-accession compliance towards soft acquis is much less evident. The study will also argue that a 'Croatian problem' similar to the 'eastern problem' is most likely to occur. While the first part will establish the theoretical background framing the present study, the second will analyse the relationship existing between corruption and EU conditionality through a comparative study of pre--and post-accession Slovenia, Bulgaria and Romania. Building on the findings, the third part will consist in a diagnosis of the Croatian state of corruption and its potential post-accession path in order to provide sounded policy alternatives and improve the current EU approach towards corruption.

1. Theoretical Framework

   1.1. Literature Review

   Corruption

   Corruption and EU conditionality are the two core concepts that will serve as the basis of the present policy analysis. Being a multi-facetted concept, corruption is difficult to grasp and there is no single uniform definition of all the constituent elements of corruption. The EU defines corruption as the "abuse of power for private gain" (EC 2003d: 6). Corruption became a 'hot' topic with the third wave of democratisation and the transition of the CEECs towards democracy and the market economy. The transition process in those countries has been characterised by flagrant corruption and which brought the issue to the forefront of the public debate. Corruption has severe effects on both the economy and the governance of a given country. First, it harms the economy and hangs over the wealth of average citizens. Scholars have established that corruption among other things reduce economic growth and lower the level of foreign direct investment, to undermine the effectiveness of industrial policies and encourage businesses into unlawful behaviours (Rose-Ackerman 1999). Although some scholars, such as Huntington Leff and Lui, stress the positive impact of corruption on the economic growth of sclerosed society, experts usually believe that the short-term gains involved by corrupt practices are counterbalanced by its long-term negative effects, including spillover effects, the perpetuation of an insecure business climate, the additional burden on people unable or unwilling to bribe and the delay of actual state reform (Rose-Ackerman 1999: 16-17). Second, corruption undermines the overall governance of a country: citizens are marginalised from the political process due to the lack of transparency and the policy-making processes rather opaque because of the absence of clear check and balance mechanisms. Additionally, widespread corruption fosters disdain for and saps trust in public institutions, democratic politics, and the rule of law, which in turn delegitimizes democratic governance (Klitgaard 1991, Kainberger 2003). The overall structure of the EU being based on the mutual trust of the Member States, welcoming a highly corrupt Member State could jeopardise the entire mechanism (Alegre, Ivanova and Denis-Smith 2009). Hence, EU commitment to help Candidate countries to face corruption is not surprising.

   European Union Conditionality

   EU conditionality can be traced back as far as to the early 1960s but really became the cornerstone of EU strategy towards potential Candidate countries in the late 1980s (Papadimitriou and Phinnemore 2004, Pridham 2007). Back then, EU conditionality was characteristic of a democratic conditionality under which compliance to the EU rules depended essentially on the adoption costs and the credibility of the conditionality itself (Schimmelfennig and Sedelmeier 2005). Over time, EU conditionality's timing, scope and focus, and priority and procedures have been reinforced--especially with the design and implementation of the Copenhagen criteria--leading to the emergence of a second kind of conditionality (6), i.e. the acquis conditionality (7). Unlike democratic conditionality, acquis conditionality is effective under the combination of credible membership perspective and clear setting of criteria as requirements for membership (Schimmelfennig and Sedelmeier 2005). Though the method presented non-significant results in the 1970s and 1980s, its popularity is increasingly growing: using conditionality enables to exert social, economic or political influence without having to resort to more dangerous, costlier methods with no guarantee of results. Conditionality is expected to create a 'virtuous circle': the initial pressure to engage reforms is believed to create political support, which will in turn support modernisation and the continuation of the reforms (Veebel 2009). The causal relationship between the presence of EU conditionality and successful rule transfer in particular issue-areas has been tested by several scholars on the basis of the external incentives models, which presupposes that the government of the Candidate countries will comply with EU conditions if the benefits of the EU rewards surpass the domestic adoption costs (Schimmelfennig and Sedelmeier 2005: 10-17).

   Despite its astonishing results, the EU conditionality has its own weaknesses. On the one hand, the Copenhagen criteria leaves little room for negotiations and functions instead on a 'take it or leave it' basis. On the other hand, the strength of EU conditionality lies first and foremost on the conditional membership incentive, with the Candidate countries complying with any of the EU requests in order to enter the Union (Mungiu-Pippidi 2009) and the absence of persuasion and social learning (Schimmelfennig and Sedelmeier 2005). Hence, with the disappearance of the membership lever...