Summary: The EU’s Eastern Partnership (EaP) faces a double challenge. The transformation of post-Soviet countries it was designed to support has largely failed to emerge. In its place, a conflict with Russia has arisen for which the EaP was unprepared. This spells a dilemma. Rather than support EaP governments on the basis of their reform records, the EU is tempted to back them for the geopolitical choices they have made (namely, for their professed pro-European positions). In the long run, however, the EaP cannot succeed without delivering on its “transformational agenda.” Even in countries that have already signed Association Agreements with the EU, the ultimate success of the EaP is in question. This analysis describes the EaP’s “transformational challenge.” It argues that geopolitical competition with Russia was neither avoidable nor will it be easy to overcome. The key obstacle to change, however, is not geopolitical competition but the veto power of vested interests within EaP countries themselves. Since this veto power marks a crucial difference from conditions that prevailed in EU enlargements in Central Europe, the EaP’s response must apply a different transformational logic. The EU must go beyond merely supporting reforms in the EaP and effectively take co-responsibility for them. This involves upgrading the principle of conditionality and getting involved more directly in implementation. The paper concludes by stressing the importance of human resources in state institutions and proposes concrete measures for appointing and retaining qualified personnel and, particularly, independent leaders for key law enforcement and regulatory bodies.
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Between Geopolitics and Transformation: Challenges and Perspectives for the Eastern Partnership
by Hans Martin Sieg
Contents
1 Geopolitical Context: The Ambiguity of the EaP
2 Geopolitical Context: The Ambiguity of Russia’s Policy
3 Russia’s Objections to the EaP
4 The Impact of Russian Resistance to the EaP
5 Obstacles to Reform in EaP Countries: Social Factors
6 Obstacles to Reform in EaP Countries: Vested Interests
7 Comparing the Eastern Partnership to the EU Enlargement Process of 2004–07
8 Reviewing the EU’s Interests in EaP Countries
9 Rethinking Conditionality
10 The Importance of Human Resources in Implementing Reforms
Notes
Excerpts (Sections 9 and 10)
9. Rethinking Conditionality
To meet the transformational challenge, the EU must adjust the EaP’s instruments. Current incentives and support for reforms are insufficient. In Ukraine today, the shockwaves caused by both the Maidan movement and Russia’s intervention may in fact be rallying enough popular and elite support to the reform agenda to make genuine progress possible. As in other EaP countries, however, this outcome is still far from certain, not for lack of general support for reforms within society but because vested interests are still structurally entrenched.
In order to overcome the resistance of vested interests, EU policies need to become involved far more directly in reforms, effectively allying EU efforts with reforms forces on the ground. This shift in the EaP could be described as a change from supporting reforms toward accepting joint responsibility for them. If governments will not – or cannot – implement crucial reforms on their own, the EU must shift from setting general reform goals toward putting concrete reform proposals on the table – and then reinforcing reform implementation directly with EU instruments and experts. Such instruments can be employed without infringing on a state’s sovereignty – a major concern for the EU. At the same time, they would reflect the fact that the political and legal framework of relations between the EU and Georgia, Moldova, and Ukraine goes far beyond “international relations as usual,” reflecting those countries’ European aspirations and the commitments they have already made under their respective Association Agreements.
As a first step, the EU needs not only to employ stricter conditionality but also to upgrade that conditionality by detailing and prioritizing standards. The Association Agreements list the adjustments necessary for DCFTA, but on crucial political reforms, the standards put forward by the EU have remained rather general and broad. This has made it difficult for the EU to employ concrete conditionality and, if necessary, to exert targeted reform pressure, differentiating between those who promote and those who obstruct reforms. And this makes it easier for vested interests to block reforms from the shadows. It also allows them to respond to reform pressure with superficial reforms – reforms that appear to address problems but in fact are rendered ineffective, be it through detail provisions or the leverage of vested interests over key personnel – or pocket reforms. These may appear sound in themselves but are fragmented and can easily be bypassed by oligarchic control or corrupt machinations. Furthermore, since most institutions and areas of legislation require some kind of reform, it is possible to sidetrack conditionality by presenting as successes minor reforms that do not meet much resistance.
To work effectively, conditionality needs to be based on clear priorities and concrete requirements. Finally, it needs to be backed by an EU that is ready to exert its leverage to the full. This requires:
—Prioritizing: Functional state institutions that ensure the rule of law are the precondition for substantial progress in EaP countries. This requires in particular the independence of the judiciary, law enforcement authorities, and key regulatory bodies, without the interference of political actors, oligarchic control, and corrupt interests. In addition, legislation on the transparency of state enterprises, offshoring, media control, and party financing is crucial to limiting the leverage of vested interests. In giving these areas priority, it is crucial to focus on “game-changer reforms”– reforms that will broadly and effectively change the rules of conduct for all actors in the country. An example of such a reform is to be found in Romania, namely in that country’s anti-corruption directorate (DNA): a single independent authority responsible for addressing all charges of high-level corruption. The DNA has the power to directly conduct and supervise the whole process, from investigation to prosecution. The result is an institution strong enough so that even the most powerful oligarch cannot be sure of being able to control or bypass it.
—Getting concrete: A detailed understanding of the desired reforms – not just the desired outcomes – is needed for measuring success. Implementing concrete individual reform steps makes it possible to identify resistance and apply pressure in a targeted way. The EU should be ready to respond to shortcomings not only with criticism but also by putting forward specific and comprehensive reform proposals. Often, models from other countries can be put forward. One basic example of a mechanism for working out such proposals is the peer review mission on the judiciary that the EU recently carried out in Moldova. Here experts from judicial authorities of EU member states provided their analysis and suggestions. Future models could involve independent local experts and members of civil society in such a mechanism as well.
—Using EU leverage: This requires first of all putting the transformational agenda before geopolitics. If the EU shows a readiness to compromise on reform, vested interests will exploit this, rendering conditionality toothless. Vested interests within “pro-European” camps continue to be able to play with the threat of switching their allegiance from the EU to Russia. In fact, they still need the EU for political legitimacy and financial support. If the EU compromises, it will lose credibility still further, bringing about the very geopolitical turn they wished to avoid in the first place. The EU should instead insist that EaP countries stick to the commitments made in the Association Agreements. Failure to meet these commitments justifies extending EU conditionality to reform proposals put forward by the EU itself, and in case of rejection, exerting pressure in the form of withholding financial support or suspending parts of the agreements (just as the countries are themselves free to opt out of the agreements). Instead of sharing the blame for malpractice, the EU should make greater use of public diplomacy and be more outspoken about reform requirements and any resistance.
10. The Importance of Human Resources in Implementing Reforms
To promote real reforms, EU instruments would need to take effect at all stages of reform in which they could be frustrated: their design, their implementation, and the selection of key personnel. Particularly for the major task of institution building, human resources are crucial. The best reform concept for any state institution can only succeed – or be frustrated – through the selection of personnel. The EU should therefore be ready to take a more active role in developing personnel in EaP countries as well as contributing directly with its own missions to the design and implementation of reforms on the ground.
—Civil service reforms and pay-scale reforms: Though improving pay will not alone reduce corruption, it is a precondition for attracting and retaining more qualified personnel. Salaries for positions of responsibility in ministries, central agencies, the judiciary, and regulatory bodies need to be raised to levels found in similar jobs in the private sector. This would, moreover, ensure the financial independence of officials. The EU could both push this and ease the financial burden on EaP countries by offering budgetary support. This could take a regressive form, for instance a payment of 80 percent in the first year, 60 percent in the second year, 40 percent in the third year, and so on. In return, the EU could request that high professional standards be applied in selecting and promoting the public servants affected and see to it that EU officials are admitted to monitor procedures.
—Selecting leaders of major institutions: Next to sound institutional reforms, the selection of independent, competent leaders for key law enforcement and regulatory bodies such as the Prosecutor General’s offices or the national banks is crucial. Public confidence in national institutions is often so limited that independent candidates are unlikely even to enter a competition organized just on the national level. Nor, if they are selected, is the minimum level of public trust ensured for them to act truly independently. By participating, the EU, as an external actor, can restore confidence, keeping in check the influence of vested interests over selection procedures. The participation of EU representatives in selection procedures has in fact been suggested by previous Moldovan governments as well as by Ukrainian reformers and members of civil society. In order to avoid interfering with states’ sovereignty, EU representatives could only cast consultative votes. Outvoting their advice, however, would cause considerable political damage, and their participation alone would push the procedure toward more transparency and accountability.
—Contributing EU missions: The EU should deploy stronger missions to contribute directly to reforms in state institutions. Existing instruments like the EU high-level advisory missions have lacked, and continue to lack, manpower and leverage, as advisors can be sidelined and depend for effectiveness on those they advise. Providing the resources for stronger missions would require a closer combination of the Eastern Partnership with the instruments of the EU’s Common Foreign and Security Policy. A recent example is the EU advisory mission that has been deployed in Ukraine since December 2014 to assist in the reform of the civilian security sector. Primary areas for the deployment of such missions should be the judiciary, law enforcement, and key regulatory bodies. To be most effective, however, strong mandates are needed. To address concerns about sovereignty, the role would be non-executive but could go beyond merely advisory and training roles to also include assisting reform implementation, vetting of officials, monitoring, and reporting – in order to obtain both the intelligence and the capacity for targeted reforms as well as to back and capacitate reform forces on the ground. Since experts can easily be isolated when they are deployed individually, strong mission headquarters would be needed and should be tasked with pro-actively taking up reform requirements with all relevant authorities on the national level – thus reinforcing EU leverage for reforms.
—Delegating officials to state institutions: Whereas EU missions cannot share executive functions, Ukraine has provided a model for employing foreigners in governmental positions by granting them Ukrainian citizenship. This model can also allow for EU experts to take up executive roles in non-political institutions, strengthening their capacities and helping to neutralize them against undue influence from political quarters or vested interests. The EU could support this by identifying and delegating suitable personnel and providing financial assistance for their employment. Such programs could also enable recruiting members of the respective diaspora communities and facilitating their return, which could offer large sources of independent, knowledgeable, and competent experts.
So far, the EU has been reluctant to involve itself to such an extent in the transformation of other countries. There is a reason for this, for the EU is rightly wary of contributing to the legitimacy of corrupt governments and bearing the blame in case of failure. The EU is also eager to avoid accusations that it is behaving in an imperial or neocolonial manner. A higher degree of EU involvement could prompt local elites to rely on the EU to fix their problems instead of striving to do so themselves. Finally, the EU has too many other challenges to address now and is not likely to make an ambitious remodeling of the EaP a priority.
Within EaP countries, however, European integration is already a matter not of foreign policy but of domestic politics. And it is for pro-European governments in the EaP actually a major source, if not the major source, of their legitimacy. The EU will thus be associated in any case with political forces that identify themselves as pro-European, and will in any case be blamed for their failures. This could be even more the case the more the EU keeps out of the domestic discourse and does not distinguish itself with more active involvement. The EU is already accused of behaving in a neo-colonial manner; but it is the lack of progress that really damages its credibility. In the end, it is a matter of failure or success, and the risk of failure may outweigh the additional risk of more involvement.
