The accession of Romania and Bulgaria to the European Union (EU) is portrayed as one of the most challenging enlargement waves in the history of the EU Integration Process. A member of the EU since 2007, Romania had to overcome significant obstacles to qualify for EU membership. Not fully prepared for EU accession, Romania required post-accession monitoring through the Cooperation and Verification Mechanism in order to stimulate compliance in the fields of corruption, the judiciary, and the rule of law. The problems of the unfinished transition have impacted on its positive post-accession evolution in the first 10 years of EU membership. It has accomplished limited results in the field of democratic consolidation, combating high-level political corruption and experiencing episodes of democratic backsliding. Also, in this period, it has failed to materialize strategic opportunities; it proved unsuccessful in its efforts to join Schengen or in adopting the currency. Playing a more substantial role in EU policymaking proved to be another shortcoming of the Romanian political elite, stressing the incremental pace of Europeanization. Still, despite this pessimistic account, in many respects, Romania has not fallen behind. It had a general compliant behavior with EU legislation, in line with other EU member states; support for the EU has remained high throughout the decade, an indication of the benefits it has brought to broad categories of people. It is not surprising, as more than 3 million people work in an EU member state. Economic growth was another positive side of the first 10 years—despite the adverse effects of the economic crisis—with a substantial GDP growth rate. And not to be dismissed , a great benefit was the consolidation of civil society.
The term “governance” refers to interactive forms of political steering, characterized by the coordination of a wide spectrum of actors in pursuit of common goals (e.g., Rhodes, 1996; Pierre & Peters, 2000, 2005; Kooiman, 2003; Torfing, Peters, Pierre, & Sörensen, 2013; Ansell & Torfing 2016). Governance processes involve multiple actors and institutions into cooperative relationships and network structures. The corresponding steering mechanisms may range from hierarchical rule to mere persuasion. The governance perspective appeared particularly suited to analyze political steering in the European Union (EU). The Union is not sovereign; it therefore developed steering mechanisms that do not (or only partly) rely on formal competences and hierarchical rule. The evolving system of European governance constituted the EU as a multilevel polity, held together by interlocking relationships of policy coordination and cooperation (Marks et al., 1996; Hooghe & Marks, 2001; Piattoni, 2010). Scholarly reflection on EU governance evolved comparatively late during the 1990s (Hix, 1998); it proliferated after the turn of the century, when the European Union introduced the so-called Open Method of Coordination (OMC) (Kohler-Koch & Rittberger, 2006). Later, the perspective widened to the whole spectrum of governance modes and its innovative forms (e.g., Sabel & Zeitlin, 2008, 2010a; Tömmel & Verdun, 2009a, Héritier & Rhodes, 2011). Yet salient issues remained under-researched, particularly the power dimension of EU governance (Torfing et al., 2013, pp. 48–70).
Judicial control over the bureaucracy is a means to defend the rule of law and important principles of democratic governance. It refers to the power of the courts to consider whether the actions of public authorities respect the limits prescribed by law. Regimes of judicial control vary in legal and administrative systems. Two major traditions can be mainly distinguished. The first characterizes continental Europe. It assigns judicial review to specialized administrative courts and involves a special branch of law, that is, administrative law. The second relies on ordinary courts and characterizes the Anglo-American system of common law. The two traditions also differ regarding the role of the courts and particularly their possibility to shape rules (common law tradition) or to apply rules (continental tradition). The expansion of state activities, including economic and social regulation and welfare service provision, has blurred the old politics–administration distinction since more and more decisions are delegated by parliaments to the administration, endowing it with wide discretionary powers. These developments have added a new meaning to the implementation of the rule of law. When the content of decisions is bound by a legal rule, legal compliance is more straightforward than when there is a margin of appreciation and choice. Circumscribing administrative discretion passes first and foremost from regulating the process of decision-making. Procedural standards have indeed been an area of primary concern for courts. Increasingly, nevertheless, substantive aspects of the administrative decision-making process and even service provision come under judicial scrutiny. Its extent inevitably differs from one legal system to another. The intensity of judicial review and its impact on (a) administrative operation and (b) policy decisions raise critical questions: how is it possible to achieve a balance between managerial flexibility, efficiency, and responsibility on the one hand and legal accountability on the other? To what extent may the courts substitute their own judgment for that of policymakers and the administrative or expert opinion underlying the decision under examination? How far do they go in scrutinizing policymaking and implementation? Judicial control involves constraining as well as constructive effects on the administration. It may contribute to an institution-building process (e.g., strengthening of Weberian-type features, increasing formalization, etc.) and to the agenda-building process, and it may influence policymaking. In certain contexts, courts even tend to become political actors. The reverse side is that they may step into matters of management and policymaking for which they are not prepared or institutionally responsible. This points to potential tensions between the administration (the executive) and the judiciary but also underlines the limitations of judicial control. Delicate issues regarding the separation of powers may emerge. Furthermore, cost, delays, the degree of administrative compliance with judicial decisions, and the ability of courts to integrate into their reasoning issues of efficiency and effectiveness constitute growing challenges to judicial control.
Nick Sitter and Elisabeth Bakke
Democratic backsliding in European Union (EU) member states is not only a policy challenge for the EU, but also a potential existential crisis. If the EU does too little to deal with member state regimes that go back on their commitments to democracy and the rule of law, this risks undermining the EU from within. On the other hand, if the EU takes drastic action, this might split the EU. This article explores the nature and dynamics of democratic backsliding in EU member states, and analyses the EU’s capacity, policy tools and political will to address the challenge. Empirically it draws on the cases that have promoted serious criticism from the Commission and the European Parliament: Hungary, Poland, and to a lesser extent, Romania. After reviewing the literature and defining backsliding as a gradual, deliberate, but open-ended process of de-democratization, the article analyzes the dynamics of backsliding and the EU’s difficulties in dealing with this challenge to liberal democracy and the rule of law. The Hungarian and Polish populist right’s “illiberal” projects involve centralization of power in the hands of the executive and the party, and limiting the independence of the judiciary, the media and civil society. This has brought both governments into direct confrontation with the European Commission. However, the EU’s track record in managing backsliding crises is at best mixed. This comes down to a combination of limited tools and lack of political will. Ordinary infringement procedures offer a limited toolbox, and the Commission has proven reluctant to use even these tools fully. At the same time, party groups in the European Parliament and many member state governments have been reluctant to criticize one of their own, let alone go down the path of suspending aspect of a states’ EU membership. Hence the EU’s dilemma: it is caught between undermining its own values and cohesion through inaction on one hand, and relegating one or more member states it to a second tier—or even pushing them out altogether—on the other.