Europeanization of Good Governance in Romania: Where and Why Does it Fail, and What Can Be Done About it?

What impact does the European Union (EU) have on good governance Romania? The analysis shows that EU-driven governance reforms improve substantive legality (the alignment of domestic legislation with international best standards), state capacity but weaken formal legality (the inner morality of law), many aspects of impartiality, efficiency-effectiveness and the coherence of state structures and policies. As a result, good governance is undermined. The persistence of bad governance is explained by three fundamental problems of Europeanization: 1. Focus on quantity instead of quality, 2. Partisan empowerment of change agents, 3. Biased assessment of reform progress. The main argument is supported by an indicator-based analysis and qualitative interviews with representatives from the EU and Romania.


Introduction
What impact does the European Union (EU) have on the development of good governance in Romania? Does EU conditionality facilitate or hinder the transition towards good governance? This brief policy-oriented paper argues (and shows empirically) that the EU's promotion of good governance in Romania, leads to some selective progress, but overall to persistence of bad governance. In particular, the paper shows that Romania's process of Europeanization has resulted in (1) some progress across three dimensions of governance (substantive legality, capacity, efficiency-effectiveness) but (2) regress in three others (formal legality, impartiality, coherence). In other words, reforms generate more substantive laws that are adapted to international/European standards (best practices), but at the same time the new laws become instable, incoherent (contradictory), hardly enforced and less general. In addition, reforms improve capacity (inputs) and partly efficiency (outputs) or effectiveness (outcomes), but undermine the procedural and structural aspects of government quality (impartiality, coherence), for instance through increased politicization and fragmentation of the state structures. One of the key findings of this contribution is that EU-driven rule of law, administrative and anti-corruption reforms tend to reproduce the existing mode of bad (fragmented) governance. Thus, it can be claimed that the EU has not only transformative but also "pathological power" (Mendelski 2015;Mendelski 2016a). This negative impact on governance is attributed to the EU's questionable approach to reform, which is based on 1.) A focus on quantity instead on quality, 2.) partisan support of unaccountable reformers, 3.) Biased evaluation of governance.

What is good governance?
Good Governance is conceived as a multi-dimensional concept that relates to the legal, judicial, prosecutorial and administrative quality in a state, and in particular to (1) the existence of stable, coherent, general and enforced laws that are embedded in universal good governance standards, (2) capable, efficient, independent, accountable and non-fragmented state structures that are able to deliver effectively public goods and implement and prioritize (3) coherent policies. Governance consists of two main qualities and six distinct dimensions (see appendix, Figure 1). In particular I distinguish between de jure good governance (quality of laws), which consists of 1) formal legality and 2) substantive legality, and de facto good governance (quality of state structures/government), which consists of four additional dimensions 3) capacity, 4) impartiality 5) efficiency/effectiveness and 6) coherence (see Mendelski 2015;2016b).
De jure good governance reflects the quality of formal rules and the way how these rules are created and enforced. It can be assessed both in terms of formal legality, that is, the technical or formal quality of laws, and in terms of substantive legality, for instance, whether laws are good laws, whether they promote certain values such as justice and fairness, and which are reflected in international best-practices of good governance (e.g. United Nations Convention against Corruption). De facto good governance, on the other hand, reflects the quality of the government, and in particular the impartial, efficient, coherent adoption and enforcement of rules, policies and reforms by state structures (e.g. legislative, judiciary, administration etc.).
Particularly important is the presence of well-coordinated, coherent and integrated (autonomous) state units, structures and policies (OECD 1997). Incoherence, in contrast, is associated with fragmentation, overlap, duplication and detrimental competition within state structures (Mendelski 2013;2016b).
Finally, all six dimensions of governance are interdependent. In order to create good governance, reformers must seek to improve all six dimensions in a balanced way. Achieving progress in one dimension and regressing in others does not necessarily enhance governance.
For instance, aligning domestic legislation with international standards will not establish the rule of law if the new laws and regulations become unstable, incoherent or are not enforced.
Similarly, creating efficient but not sufficiently impartial prosecutorial and judicial structures (and vice versa) will not necessarily improve the rule of law. Adapting to best practices through institutional transplantation without assuring coherence of state structures will undermine good governance. The next section shows that the EU (together with its domestic reformers) had precisely such an uneven effect across the six dimensions of governance.
While substantive legality, capacity and efficiency improved, reforms undermined formal legality, impartiality and coherence.

Substantive legality: Considerable improvement
The first part of Table 1 presents the main a good governance treaty ratification indicator which measures the development of the substantive legality, and in particular Romania's embeddedness in international good governance treaties. The indicator exhibits considerable progress. In a relative short period of time (2001)(2002)(2003)(2004) Romania's leaders signed and ratified all 5 major good governance conventions. In addition, several de jure provisions to strengthen judicial independence, anti-corruption and integrity were introduced. This intensified alignment of domestic legislation with European and international standards can be attributed to EU conditionality which generated incentives for domestic reformers (e.g. Adrian Nastase) who were eager to gain legitimacy abroad and to obtain access to resources (EU funds, IMF credits). Romanian elites thus were able to fulfil most obligations imposed by external conditionality. However, while the de jure alignment with international standards was fairly easy and rapid, the same cannot be said for the second dimension of de jure good governance (formal legality) which experienced regress.  fast-track) legislative procedures during the pre-accession process to the EU were mis(used) in many accession or candidate countries (e.g. Poland, Slovakia, Czechia, Croatia, Serbia etc.), but comparative data on legislative output indicates that this reform pathology (of Europeanization) was especially grave in Romania (see Mendelski 2014). How to explain this deterioration of formal legality?
According to my interviews with several legal experts and judges, legal inflation/instability was directly or indirectly linked to Romania's EU integration process. EU demands for legal approximation and reforms (which were often accompanied by coercive pressure from the World Bank and the IMF) account for a considerable percentage (approx. 30%) of the raising legislative output. In addition, Romania's anti-corruption, judicial and legal reforms were accompanied by intensified political struggles between liberal change agents and reform opponents (Mendelski 2012), which resulted in a vicious cycle of reform counter-reform, increased politicization and the mis(use) of law as a political weapon. In sum, EU-driven reforms had an uneven effect. On the one hand, domestic laws were aligned with international/European laws and standards. On the other hand, laws became more instable, incoherent and less enforced (Mendelski 2014(Mendelski , 2015(Mendelski , 2016.

Figure 2: Legislative output
Source: Database of the Legislative Council, http://www.clr.ro/rep_dil_2002/rep.aspx. Figure 3 presents the main indicator (judicial budget p.c.) to measure (judicial) capacity. The indicator shows that the budget of the Romanian judicial system grew considerably (from 7.8 to 35.0 EUR, p.c.). Improved (judicial) capacity has been the outcome of higher salaries, increased computerization and infrastructural reforms (e.g. investment in court building), creation of new state structures (DNA, DIICOT, ANI), which more than often resulted from demands and support by the EU and international donors (and in particular USAID, Council of Europe). The progress on this indictor suggests an overall beneficial potential impact of EU-driven reforms. Surely, alternative explanations added to this positive trend, such as beneficial domestic economic conditions until 2008 (interrupted only briefly by the international financial crisis).     Overall, good governance developed unevenly across its six dimensions, suggesting a differential/uneven impact of the EU-driven reforms in Romania. With regard to the de jure good governance, SEE experienced progress in substantive legality and a regress in formal legality. Thus, while laws became more similar to European and international standards, they became at the same time less stable. As regards the de facto good governance, capacity was considerably improved but this was not always reflected in indicators of impartiality, coherence, and efficiency-effectiveness which mainly stagnated or declined. Thus, EU conditionality did not lead to transformative change in most dimensions of good governance.

Coherence: Towards increased fragmentation
The reasons for this unexpected lack of progress are explored in the next section.

Why does Europeanization of governance fail?
Why did EU-driven good governance reforms not result in transformative progress and even in deterioration in several key dimensions of good governance? This section identifies three fundamental problems of EU conditionality (Europeanization), which explain why wellintended reforms do not lead to the establishment of good governance.

The problem of valuing quantity over quality
The first fundamental problem of Europeanization is reflected in the EU's quantitative approach to good governance promotion, which follows essentially a "the more the better" mindset. The EU's approach emphasizes reforms which stress quantitative outcomes (more laws, more resources, more convictions, more arrests etc.) over the quality of reform processes and procedures (i.e. how laws, arrests or convictions are made). The EU's approach can be criticized for creating quantitative perverse incentives for reformers by stressing quantitative "track records" to evaluate progress, such as: However, by relying on a 'more is better' mindset, the EU (together with domestic actors) has produced and reinforced legal pathologies which have undermined the rule of law and good governance in general. The demand for more transplanted laws and adaptation to international standards has improved the substantive legality but at the time has fostered legal inflation and instability. The demand for more regulations has increased discrepancy between formal rules and informal practice (see Slapin 2015). The call for more judicial independence has resulted in more independent but less accountable judicial councils, anti-corruption structures and courts (Transparency International 2012; Mendelski 2016a). The demand for a "solid track records" in fighting high-level corruption cases has increased the number of convictions (efficiency), but has undermined the procedural quality of anti-corruption policies (Mendelski 2016a). The demand for more judicial capacity has created expensive information and court administration systems (based on Western technology and software) which expensive to maintain and relies on continuous foreign assistance. Finally, more material resources (in the form of EU funds) have resulted in more opportunities to engage in corruption and rent-seeking (Mungiu-Pippidi 2014). Overall, the EU's quantitative approach with its perverse incentives has produced or reinforced several legal and political pathologies which have undermined crucial aspects of good governance.

The EU's partisan empowerment and evaluation of change agents
The second fundamental problem reflects the EU's selective and partisan empowerment and support of selected, reformist, "liberal" change agents (associated with the PNL), to the detriment of so-called "illiberal" reform opponents (associated with the PSD prosecutorial independence, checks on politicians, integrity, reduction of corruption and organized crime). This is however wishful thinking. The partisan support of reformers is a double-edged sword. It may result in some formal changes but at the same time reduce external accountability over them, potentially leading to the accumulation and misuse of power.
The sobering reality is that both political change agents and reform opponents are embedded in the same environment of bad governance (i.e. legal and political instability, state fragmentation, informality, politicization, clientelism, lack of effective oversight etc.) from which they can hardly escape (only if they leave the country). Thus, change agents often lack the appropriate incentives, norms and skills to conduct reforms in a non-politicised, impartial and inclusive way. In a situation of detrimental political competition between elites, both liberal and liberal political elites, instead of respecting the rule of law, may (mis)use the law and the judicial system as a weapon against each other. In Romania, different competing factions (i.e. both change agents and reform opponents) have repeatedly instrumentalized the law, resorted to informal practices and secret deals which undermined the separation of powers, transgressed their competencies and politicized the reform process (Mendelski 2012(Mendelski , 2015(Mendelski , 2016b. However, despite these structural deficiencies, the EU has selectively supported the liberal-reformist camp in Romania, thus giving them in many instances a free hand (discretion) in conducting reforms without the necessary restrictions. The partisan empowering of change agents thus resulted in new possibilities to accumulate and abuse power. Once reform opponents from the PSD came to power, they tried to launch a protective counter-movement by weakening oversight structures (e.g. at ANI, DNA, Constitutional Court, the CSM) through emergency ordinances or replacing their heads/members with their own protégés. The result of these political power struggles have been recurrent vicious cycles of reform and counter-reform with detrimental effects for the rule of law and good governance (in particular for legal stability, state coherence and the creation of impersonal, impartial and accountable state structures) (Mendelski 2015).

Biased evaluation of progress in good governance
The third fundamental problem of EU conditionality is reflected in biased evaluation of good Why should this lack of objective evaluation be a bad thing? One main argument is that the selective and inconsistent evaluation methodology of EU conditionality cannot function as an impartial external accountability mechanism and can no longer discipline change agents. In fact the EU risks becoming an accomplice who turns a blind eye on the transgressions of change agents within newly created state structures which themselves may become 1.) politicized, captured, or controlled by influential and dominant politicians, transnational coalitions or informal and hidden networks, or 2.) that these autonomous state structures become so independent and powerful that they are no longer accountable to the law, democratic oversight and public scrutiny. First, the EU should refrain from partisan empowerment of reformist, liberal change agents, particularly when they instrumentalize the law, disrespect procedural aspects and human rights and misuse their prerogatives to fight competitors. The EU's empowerment strategies are probably helpful to push reforms and to attain certain geopolitical goals, but they also undermine the establishment of the rule of law (and good governance). Rather than focusing on a small group of selected liberal change agents, the EU should reward elites and movements who have gained domestic legitimacy, foster domestic consensus and unity and regard the law as a necessary constraint rather than a tool. By supporting a small minority of delegitimized and abusive change agents, the EU may further reinforce the polarization of the Romanian polity and society.
Second, EU conditionality should be re-focused from quantitative outcomes towards qualitative processes. In particular, the EU should not link conditionality to specific reform outcomes or benchmarks (e.g. bringing war criminals before the court, increasing the number of high-level corruption cases, adoption of specific laws or one-size-fits-all solutions). Rather, the EU should link conditionality to the reform process itself which underlies these outcomes This process-related and qualitative approach should pay attention to formal legality, coherence of state structures and interdependencies between dimensions of governance.
Third, the EU needs to improve the currently flawed and inconsistent methodology of governance (rule of law) evaluation, which opens the doors to bias and double standards. An enhanced approach requires a more objective, qualitative and multiplicative methodology, which pays attention to reform and policy processes. In addition, the EU's (CVM) progress reports should contain more detailed references and all relevant sources of information in a large appendix (e.g. containing original screening reports by experts, documented interviews, opinions of the respective government and opposition etc.) More objectivity and validity through triangulation and transparency of the evaluation methodology could help to diminish the "EU's evaluation deficit" and the pathological effects it generates.