The EU Anti-Corruption Report

A Reflexive Governance Approach

Andi Hoxhaj

• Publisher: Routledge
• Year: 2019
• ISBN:
  9781351369657
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

This book analyses the development of anti-corruption as a policy field in the European Union with a particular focus on the EU Anti-Corruption Report. It reconstructs the origins of anti-corruption policy in the 1990s when the EU started to recognise corruption as a serious crime with a cross-border dimension. It also analyses the processes surrounding the downfall of the Santer Commission on charges of corruption in 1999 and the enlargement of the EU. This incorporation of transitional new Member States was accompanied by a number of specific measures, instruments and monitoring mechanisms to combat corruption at the supranational level, finally leading to the introduction of the EU-wide Anti-Corruption Report in 2014. The book presents an in-depth analysis of its implementation, abandonment and the way forward under the European Semester as the new instrument for achieving EU anti-corruption reforms. It offers a new interpretation of the Report as a form of reflexive governance that operates at multiple levels and involves not only the European institutions and national governments, but also the role of civil society actors in the process of developing anti-corruption policy. It applies the theory of reflexive governance in analysing the impact of the Report in the UK, Romania and Albania, including the involvement of non-state actors in anti-corruption policy making in these countries. The book concludes with a discussion on how future EU Anti-Corruption policy can make use of reflexive governance and offers recommendations to enhance anti-corruption policies of the EU, the Member States and Candidate States.

Section 1

1 An introduction

A short history of anti-corruption policy in the EU

Corruption is considered to be one of the biggest challenges currently facing the European Union (EU) and its society, after inequality and the rise of populism. It was only in the mid-1990s—in particular after the fall of the Iron Curtain—that corruption first emerged as a policy problem that could no longer be addressed just through domestic policy by individual member states and the EU. Corruption scandals continue to make headlines all around the world on a frequent basis, and the Special Eurobarometer¹ issued in December 2017 suggests that corruption is still very common in Europe—in public institutions, different branches of governments and a source for of party-political funding. The 2017 Eurobarometer suggests that over two-thirds (68 per cent) of Europeans think that corruption is widespread in their country, and a large majority (79 per cent) agree that there are clear links and interchange between business and political leaders in their country lead, based on favouritism and corruption practices. The 2017 Eurobarometer is an indication that corruption is still a systemic problem in Europe and, thus, collective effort is required to tackle the issue of corruption more effectively.

In a globalised and interconnected world, which is characterised by rising flows of capital, goods, people, exchange of information and knowledge, corrupt practices do take place not only within national contexts but also across borders.² Thus, the growing complication of corrupt practices presents a significant challenge for anti-corruption policy success and for anti-corruption institutions. The EU enlargement process has increased political and economic integration, and we should view corruption as a cross-border problem that concerns all the member states, even when corruption occurs at local or national level. As a result, the globalisation of corruption can have great implications for anti-corruption policy efforts, which have traditionally been within the responsibility of national policy and law-making. Over the past two decades, there have been some efforts for collectively addressing the issue of corruption at international level, by introducing a number of international anti-corruption conventions, as well as at EU level, by attempting to develop anti-corruption as a separate policy field. Despite this, we can observe that the fight against corruption has not always been high on the EU agenda, and currently the EU focus is on the rise of populism, global warming, security threats and income inequality. However, in recent years, the EU has taken some more concrete policy steps in addressing the issue of corruption. In accordance with Ralf Rogowski, we can distinguish four different phases that characterise the development of EU anti-corruption policy as a policy field.³ And from 2017, the EU anti-corruption policy has begun evolving into new, fifth phase, after the decision by the EU Commission (hereafter, the Commission) to address corruption concerns under the European Semester.

1 European Commission, ‘Special Eurobarometer 470 “Corruption” Report’ European Commission, Directorate-General for Migration and Home Affairs and co-ordinated by the Directorate-General for Communication (2017) <http://ec.europa.eu/commfrontoffice/publicopinion/index.cfm/Survey/getSurveyDetail/instruments/SPECIAL/surveyKy/2176> accessed 30 May 2019.

2 A Teixeira and others, Corruption, Economic Growth and Globalization (Routledge 2015) 41–51.

3 R Rogowski, ‘ALACs and the Concept of Citizen Participation in the Light of European Law’ Warwick School of Law Research Paper No 2010/25 (25 October 2010).

1.1 The first phase

The EU and other international organisations such as the UN, the World Bank and the IMF started to address the issue of corruption as a policy concern during the mid-1990s by promoting good governance, and during the process of preparing the EU for enlargement in Central and Eastern Europe (which took place in 2004, 2007 and 2011⁴). According to Patrycja Szarek-Mason, in 1995, Transparency International (hereafter, TI) identified in its memorandum to the EU institutions that ‘the EU was not fully aware of its role in fighting corruption; rather, it leaves the issue of corruption to the EU member states or to other international organisations working on corruption.’⁵ Therefore, one might observe that, at this stage, the EU did not engage in anti-corruption policy and left it to the member states to address corruption through their domestic means.

The Commission issued its first Communication on the EU policy against corruption in 1997—the first EU policy document to focus primarily on the issue of corruption.⁶ This Communication can be characterised as the start of the first phase, in developing a separate anti-corruption policy at supranational level by the EU. The Communication highlighted that corruption was having a negative impact on fair competition in the EU and posed a direct threat to the principles of open and free markets within the EU. In particular, corruption was viewed as affecting the proper functioning of the internal market, the financial interests of the EU and international trade. Furthermore, the Communication acknowledged that corruption had a negative impact on the functioning of good governance and the rule of law.⁷ In the 1997 Communication, the Commission declared three main objectives for developing an anti-corruption policy: to protect the EU’s financial interests, to protect officials of the EU and/or of the member states, and to protect the private sector. In all three areas, there were some superficial anti-corruption instruments in place. However, we will see in the following sections, the implementation of the anti-corruption instruments in the member states were inadequate, and their efforts were insufficient for addressing corruption as an issue, let alone tackling the issue of corruption more effectively.

4 D Schmidt-Pfister and H Moroff, Fighting Corruption in Eastern Europe: A Multilevel Perspective (Routledge 2013) 104–105.

5 P Szarek-Mason, The European Union’s Fight Against Corruption: The Evolving Policy Towards Member States and Candidate Countries (CUP 2010) 78.

6 European Commission, ‘Communication from the Commission to the Council and the European Parliament on a Union Policy Against Corruption’ COM (97) 192 final. <https://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:1997:0192:FIN:EN:PDF> accessed 30 May 2019.

7 P Csonka, ‘Corruption: The European Commission’s Approach’ in Barry AK Rider (ed), Corruption: The Enemy Within (Kluwer Law International 1997) 343–353.

The Commission’s first Communication on EU policy on fighting corruption in 1997 also gave the first definition of corruption, as understood by the EU: ‘any abuse of power or impropriety in the decision-making process brought about by some undue inducement or benefit’.⁸ This definition was accepted in 1998 by the European Court of Auditors.⁹ However, the EU’s definition of corruption as the ‘abuse of power for private gain’ is a very broad one and, as such, hard to work with. There are questions over how to define the concepts such as ‘abuse of power’ or ‘private gain’, and it becomes difficult to clearly define or measure how great the ‘private gain’ must be in order to fall under the EU definition. In accordance with Patrycja Szarek-Mason, the EU definition starts from the assumption that formal and informal systems of law and norms exist and are accepted by all sides in the EU—which in fact, at this time, is not the case.¹⁰ The Commission’s definition of corruption is broad and embraces a socio-economic approach which looks to address corruption in the context of good governance.¹¹

To date, defining corruption in the EU still remains a contested issue, stimulating debate over accepting a common definition. However, in this book, we will not engage in the discourse and literature of defining corruption, but rather accept the definition accepted broadly by Transparency International as ‘misuse of public power for public gain’. When it comes to refining and developing an acceptable definition by all of the member states, the EU must take into account as many voices and perspectives as possible. Definitions and perceptions of corruption vary across many of the member states—which members comprise diverse political, cultural and social development. Therefore, coming to a collective definition of corruption in the EU is far from easy. We could argue that it is almost impossible to measure the level of corruption across all of the member states, simply because the legal definitions, as well as the cultural understandings of a corrupt act, differ considerably from one member state to another. Therefore, the ongoing challenge for the EU is to adopt a definition that can incorporate numerous understandings of corruption across the member states.

8 European Commission (n 6).

9 Court of Auditors, ‘Special Report No 8/98’ OJ C 230 22 July 1998.

10 P Szarek-Mason, The European Union’s Fight Against Corruption: The Evolving Policy Towards Member States and Candidate Countries (CUP 2010) 10.

11 ibid 11.

At the same time as issuing the first Communication on EU policy on fighting corruption, the Commission also made a number of recommendations—in particular, the introduction of accounting and auditing standards, the blacklisting of corrupt companies and the banning of tax deductibility to EU member states.¹² The Commission’s objective was to establish an EU strategy to respond to corruption issues within its member states,¹³ because at this time a cross-border dimension started to be linked to serious corruption crimes, such as human trafficking, money laundering and the narcotic trade.¹⁴ Furthermore, the accession process in Central and Eastern Europe (CEE) had begun to provoke the EU’s interest in developing an anti-corruption policy, as many member states held deep reservations about the high level of corruption present in the CEE countries that would accede to the EU in 2004.

These concerns were taken on board by the Commission’s overall report in 1998, on the progress towards accession by candidate countries. The report sugg...

Table of contents

• Cover
• Half Title
• Series Page
• Title Page
• Copyright Page
• Table of Contents
• Acknowledgements
• List of abbreviations
• Introduction
• Section 1
• Section 2    Country Case Studies
• Section 3
• Conclusion
• Appendix A—European semester country-specific recommendations in 2018
• Bibliography
• Index