Introduction
In November 2020, the EU agreed on a historic recovery plan of €1.8 trillion in response to the severe social and economic disaster precipitated by COVID-19. Member states that have been afflicted by significant corruption have received substantial financial aid. The rescue package is prone to increasing risks of corruption and fraud due to the large sums of money involved, the diversity of funding sources, and the complex allocation criteria. The EU’s most recent response to corruption backsliding, the Rule of Law Reports, and budget conditionality, are ineffective in preventing additional corruption backsliding in Europe. The EU’s formerly extensive anti-corruption strategy has long been forgotten.
The European Commission produced the Anti-Corruption Report in 2014, which was the first EU-wide, standardized anti-corruption monitoring system. The document, in an unprecedented move, addressed corruption as a cross-cutting issue and advised country-specific follow-up steps. The Commission sought to utilize these monthly snapshots as a springboard for more aggressive anti-corruption policy. However, after publicly committing to publish the nearly completed follow-up report, the Commission unexpectedly stated in a widely panned letter to the European Parliament that the monitoring mechanism will be phased out in 2017. Following a period of severe corruption and rule of law reversal in the EU, the Commission proposed a fresh set of steps in 2019 targeted at bolstering the rule of law.
The Commission goals
The Commission redefined anti-corruption as an implicit goal of promoting the rule of law, after pursuing a “two-track strategy” in which corruption and the rule of law were viewed as wholly separate policy areas. Suddenly, the rule of law was seen as the antidote to corruption. This recent shift to an exclusive concentration on the “rule of law track” came at the expense of a comprehensive EU anti-corruption program. One of the primary pillars of the ‘rule of law track,’ the 2020 Rule of Law Report, demonstrates that the Commission’s anti-corruption effort is disjointed and superficial. The broad breadth of the new EU monitoring mechanism, which is designed to review a range of rule of law elements in Member States on an annual basis, diverts attention away from critical sectors with higher corruption concerns.
The studies made no mention of corruption in public procurement, which is the area where EU monies have been misappropriated the greatest. Given that the EU has precise statistics in this area, this is remarkable. The European Single Market scoreboard has been providing red flag procurement indicators that track corruption in the EU in real time since July 2019. Furthermore, there are no country-specific suggestions in the 2020 Report. One can only speculate on how the Commission plans to “measure” success in the next rule of law cycle, which begins in 2021. The Commission’s failure to live up to its goal of “developing feasible remedies… to problems before they worsen” is reflected in this naive type of benchmarking, which renders the rule of law reports entirely impotent. There are also severe methodological errors in the report. Rather than focusing on objective nation facts, the Commission preferred to concentrate on the bloc’s members’ legislative and institutional frameworks, as well as perception-based corruption indices.
However, as has been noted elsewhere, a country’s legislative and institutional structure has little bearing on the level of corruption on the ground. While corruption surveys are useful for identifying general trends, they are unreliable for estimating levels of corruption over longer periods of time. The EU budget conditionality — the second fundamental pillar of the ‘rule of law track’ – calls for money to be removed for members who do not follow the law. While the budget conditionality is an innovative legal device in many aspects, its application is extremely limited, as it only covers rule of law violations that have a negative impact on the EU’s financial interests. Furthermore, it takes a restricted and bribery-centric criminal law approach to corruption.
As a result, budget conditionality will do little to address the pressing issues confronting the EU right now: state capture, the destruction of institutional checks and balances, COVID-19-related public procurement corruption in the health-care sector, and cronyism, nepotism, and favoritism in the recruitment and management of the health-care workforce. Most critically, the EU rule of law track has failed to find a solution to the problem of how to proceed when the bloc’s 27 members willfully attempt to construct corrupt dictatorial regimes while ignoring the rule of law. Increased communication and cooperation — the hallmarks of the ‘rule of law track’ – are unlikely to persuade Member States that deliberately sabotage EU anti-corruption programs or misappropriate EU funding to change their minds.