Opinion piece on Rule of Law enforcement in the EU
Between the years 2007 and 2019, the political class of Bulgaria, a handful of oligarchs, was able to complete the process of state capture by populating the country’s judicial system with allies of the government, engaging in corrupt practices, and eroding media freedoms. The EU’s Cooperation and Verification Mechanism (CVM), originally meant to help Bulgaria answer its shortcomings in the rule of law following its premature EU accession, failed to recognise and address these issues. Blurry assessment methods resulted in serious reporting deficiencies, mainly visible in the use of misleading diplomatic language and the omission of crucial negative developments. Furthermore, the CVM’s conceptual flaws (vague benchmarking, validation of superficial reforms, and lack of enforcement mechanisms) made it possible for Bulgarian elites to fake compliance. The CVM was instrumentalised by corrupt political figures of Bulgaria to legitimate and extend their power, making the European Commission partly responsible for the authoritarian turn in the country in the late 2010s. However, isolated mechanistic mistakes are not enough to explain the EU’s failure to uphold the rule of law in Bulgaria.
The concept of conditionality lies at the heart of the EU’s transformative power and is a favoured tool to enact change within member states and beyond. To function, conditionality relies on a balance of sanctions and incentives, colloquially called ‘sticks and carrots’, to steer policymaking in the reform direction set by the EU. But, was the EU relying on this familiar strategy to uphold the rule of law in Bulgaria during the Cooperation and Verification Mechanism?
As discussed in the previous part, the use of ‘sticks’ was limited: the threats were weak, and sanctions were never truly considered after 2008. Therefore, perhaps it was the EU’s intention to inspire change in Bulgaria through ‘carrots’ only. What carrots, however? A key distinction needs to be made here between post-accession conditionality and traditional, pre-accession conditionality. The former is an evolution of the latter, applied uniquely to Bulgaria and Romania in the context of the CVM. Eli Gateva (2013), researcher at the university of Manchester, explains that the key difference between them lies in the incentive structure: while pre-accession conditionality leverages the significant reward of membership to drive reforms, with compliance being rewarded at every stage by the opening and closing of negotiation chapters, post-accession conditionality operates without such leverage. The absence of advancement rewards leaves a weak “negative” incentive structure, often resulting in compliance fatigue or even “post-accession
hooliganism”1. A thought to consider is whether the EU was aware of this serious limitation of post-accession conditionality: if it wasn’t, then this would reveal a blind belief in the EU’s own transformative power and a need for serious introspection. However, it is hard to believe the EU would think membership alone would make Bulgaria’s entire political class abandon their own interests.
Perhaps is the case, then, that the EU didn’t conceive the CVM as a framework through which to apply the usual formula of conditionality but as one where change had to come from Bulgarians themselves through sheer political will. A “bottom-up” adoption of rule of law principles is a plausible strategy; yet, as previously observed, the CVM was operated in near total disregard to civil society and local stakeholders, showing that the intention was never to encourage change from below. Instead, cooperation was attempted with the Bulgarian elites. In consideration of Bulgaria’s social and political fabric, however, one might argue this was doomed from the start. Indeed, a good part of the communist-era Bulgarian elites, which concentrated economic and political powers and often prioritised self-interests over public accountability, managed to retain their position and influence after the transition, bringing with them a legacy of corrosive state-society relations. It is therefore hard to believe that the very people benefitting from a culture of clientelism and corruption would have any political will at all to dismantle it. Once again, it is unlikely that the EU was ignorant of such an obstacle. This paradox in how the CVM was carried out raises the question of whether the problem stemmed from a lack of political will on the part of the EU itself.
Did the European Commission have any reason to refrain from enforcing the rule of law principles in Bulgaria? Many scholars seem to think so (Vassileva 2019). At first glance, the decision to terminate the CVM in 2019 seemed premature, letting one think the EU had some sort of desire to ‘get it over with’, in a display of political expediency. Hristo Hristev, Bulgarian professor of EU law, described the last CVM report as “a farewell gift [by the Juncker Commission] rather than an objective evaluation” (FrogNews 2010). Some commentators saw the Commission’s decision as a dangerous move since it left Bulgarian citizens at the mercy of a broken, corrupt system, one which has been legitimated by the fictitious completion of the CVM: “a slap in the face of the rule of law”, according to Joeri Buhrer Tavanier, former permanent European Commission Representative on the CVM (Vassileva 2019). The cause behind this decision is identified more clearly by Hristo Ivanov (Vassileva 2019), who views the behaviour of the Commission in the late 2010s as the result of “political promises enforced in an unprincipled way”.
1 Post-accession hooliganism is a term coined by Ganev (2013) to describe the phenomenon where political elites in newly admitted EU member states, such as Bulgaria and Romania, exploit the limited pressures after accession to revert to self-serving practices and cancel reforms, undermining democratic norms.
Various critics of the CVM, including former MEP Clare Daly, agree to say that the failure of the rule of law promotion in Bulgaria was caused by unspoken political arrangements conducted between the EPP-led European Commission and the Bulgarian government. The European People’s Party (EPP), a right-wing conservative European political family, is the main political force in the European Parliament and European Commission2, and its members enjoy significant power over EU decision-making. To keep that position, the EPP relies on solid alliances with national parties like Bulgaria’s GERB party, led by Boyko Borissov, Prime Minister of Bulgaria from 2009 to 2021. The strong ties between Borissov and the EPP were most apparent during the Bulgarian presidency of the European Union (in the first half of 2018), time during which Bulgaria and its leader were receiving disproportionate praise from multiple prominent members of the EPP: Juncker, then still president of the European Commission, declared Bulgaria’s success was an example for others, Weber3 made a similar comment and Daul4 went as far as calling Borissov the “best chef d’état in Europe” (Vassileva 2019). In return for the EPP’s (and hence the Commission’s) validation of his regime, loyal Borissov provided unconditional support for the EPP by having his MEPs vote hand in hand with the party on several cases: against sanctioning Hungary under Article 7, in favour of electing Weber as EPP’s Spitzenkandidat5, or more generally by not engaging in anti-Brussels rhetoric (Vassileva 2020). A conflict of interest arose: wary of the risk of losing the GERB’s support if the CVM reports overly criticised or sanctioned Bulgaria for its shortcomings in the rule of law, the Commission chose instead to turn a blind eye and legitimise Borissov’s autocratic government to protect their political alliance. Vassileva (2018) describes what this might have looked like in practice: “contentious paragraphs are often deleted from the second to last draft of the report due to political bargaining behind the curtain”.
Further evidence of the politicisation of the European Commission is the double standards with which it enforce adherence to the rule of law: Hungary and Poland, two member states with non-EPP affiliated governments, face much harsher criticism and sanctions for their shortcomings in the rule of law – indeed, both are currently facing Article 7 procedure to suspend their EU
2 Between 2019 and 2024, 8 out of 27 commissioners were affiliated with the EPP. After 2024, that number increased to 11.
3 Manfred Weber: German MEP since 2004. President of the EPP since 2022.
4 Joseph Daul: former French MEP. President of the EPP from 2013 to 2019, leader of the EPP in Parliament from 2007 to 2014.
5 “The Spitzenkandidat process is the method of linking the choice of President of the Commission to the outcome of the European Parliament elections, with each major European political party nominating their candidate.” (Wikipedia)
funding. Bulgaria’s position at the centre of current geopolitical considerations, notably as a neighbour of Turkey, also contributes to shield it from strict measures.
The final consequence of the Commission’s irresponsibility is euro-scepticism; failures of the EU to fulfil its duty of protecting the rights of citizens of a member state are directly reflected in that country’s opinion polls. Indeed, only 60% of Bulgarians agree that ‘the EU plays an important role in helping to uphold the rule of law’ in their country, the second lowest percentage after Greece. (Eurobarometer 2024)
