Issues in Anti‐Corruption Law: How Can Code of Conduct Laws Be Drafted in Order to Reduce Corruption in a Public Sector like Romania's

• DOI: http://doi.org/10.1111/j.1468-0386.2011.00598.x
• Date: 01 March 2012
• Published date: 01 March 2012

eulj_598289..322

Issues in Anti-Corruption Law: How Can

Code of Conduct Laws Be Drafted in

Order to Reduce Corruption in a Public

Sector like Romania’s

Bryane Michael*

Abstract: International organisations, like the UN and EU, have encouraged their

Member States for years to increase civil servants’ compliance with particular codes of

conduct. Romania represents probably one of the most advanced countries in attempting

to legislate on civil servant ethics through its Code of Conduct Law. Yet, the Romanian

Code of Conduct Law possesses significant weaknesses, emanating both from the inherent

difficulties of using hard law in a soft law area (like civil servants’ ethics) and the Law’s

silence as to specific procedures, which government agencies should use in implementing

the Law. Given these weaknesses, Romanian government agencies should adopt regula-

tory instruments that compensate for these weaknesses at the legislative level. In this

paper, we present the provisions—particularly related to the establishment of agency-level

ethical doctrines—which regulatory drafters can use to implement these codes of conduct

in a civil law system without running afoul of the basic requirements of civil law jurispru-

dence for clarity and predictability. We discuss the legal basis in Romanian administrative

law for the elaboration of specific ethics-related doctrines and the ways in which such a

‘doctrinal approach’ to administrative ethics can help achieve the objectives of the flawed

Code of Conduct Law. We specifically discuss the ways in which Romanian governments

can adopt such regulatory instruments and the types of provisions that should be included

in order to help overcome the flaws of the Code of Conduct Law.

I Introduction

The issue of ethics—particularly public sector ethics—remains one of the most conten-

tious and difficult areas of work in public sector management. Government ethics often

represents an area of law making where no agreement exists in order to pass hard law.

For example, should a civil servant who breaks the agency’s rules in order to help a

citizen in distress be punished—or rewarded? Should civil servants escape legal liability

when they ignore direct instructions from their superiours when they believe that

ignoring those instructions serves the public’s interests? Many civil law legal systems

like Romania’s—which rely on the clarity and predictability of black letter law—have

* Columbia University, School of International Affairs.

European Law Journal, Vol. 18, No. 2, March 2012, pp. 289–322.

© 2012 Blackwell Publishing Ltd., 9600 Garsington Road, Oxford, OX4 2DQ, UK

and 350 Main Street, Malden, MA 02148, USA

been attempting to regulate the conduct of its civil servants through instruments

familiar to the common law system—particularly government codes of conduct.

However, unlike in the US, UK (or even French and Swedish systems), civil servants in

countries like Romania do not have the authority to interpret their code of conduct

regulations, establish legal reasoning—or doctrines—for taking ethical decisions and

cannot absolve themselves of liability for misconduct when they can demonstrate that

they acted according to a particular administrative precedent or clearly in the public

interest.

We argue that legislative provisions requiring the implementation of codes of

conduct in a public sector (like Romania’s) can only succeed if those provisions allow

for the development of legal doctrine(s) to emerge. Simply put, such legislation must

allow for civil servants in civil law jurisdictions to use the rules of thumb, list tests,

balancing tests and other relatively ambiguous criteria that civil servants in common

law jurisdictions use in adjudicating ethical dilemmas at the administrative level. Yet,

such provisions run counter to civil law jurisprudence requiring clarity and predictabil-

ity. We try to show ways in which potential regulators who are setting up government

code of conduct programmes might implement a doctrinal approach to codes of

conduct in a civil law system without running afoul of the basic requirements of civil

law jurisprudence for clarity and predictability.

The magnitude of Romania’s administrative corruption makes such a study timely.

According to the 2009 Transparency International Global Corruption Barometer (the

most recent data available), Romania had the third highest incidence of bribery in the

EU. In 2009, 12% of households reported paying bribes ‘in any form.’ Only Greece and

Hungary households paid more (with 17% of Greece and 14% of Hungarian house-

holds paying such bribes). Only 62% of Romanian households claimed they paid no

money in bribes (on a scale from zero to more than US$1000). Only Bulgaria had a

lower rate of households who could solidly claim to have paid nothing out to corrupt

public administrators. These data suggest that anti-corruption law for Romania—like

many other countries—remains a priority.

II International Instruments Relating to Civil Servant Ethics and

Codes of Conduct

A International Code of Conduct Principles

Almost all international organisations working on issues related to public sector man-

agement and public administration have attempted to draft soft law legal instruments

providing guidance on the creation of public officials’ codes of conduct.1Table 1

1In this paper, we follow the hard law and soft law dichotomy used throughout the literature (and Dr.

Solomon provides a recent overview of the application of such soft law in administrative law tradition,

particularly in civil law jurisdictions). Soft law instruments (such as recommendations, advice as verbal

instructions and other admonitions on civil servants to act in a particular way deemed ‘ethical’ by the

authors of these instruments represent parts of a country’s ethics legal framework containing provisions

in which inefficient consensus exists in order to establish enforcement mechanisms and insufficient

clarity exists in order to define the exact actions prohibited or required. If consensus existed about these

provisions, law makers would have created hard law—writing down the specific measures of black letter

law and included measures to ensure compliance (and punish non-compliance). See J. Solomon, ‘Law and

Governance in the 21st Century Regulatory State’, (2008) 86 Texas Law Review 819. Dr. Friedrich

provides a fascinating discussion of the increasing ‘legality’ of these soft law instruments. See J. Friedrich,

European Law Journal Volume 18

290 © 2012 Blackwell Publishing Ltd.

‘Legal Challenges of Nonbinding Instruments: The Case of the FAO Code of Conduct for Responsible

Fisheries’, (2008) 9 Ger. L. J. 11. We omit work by regional organisations, such as the Organisation of

American States and large non-government organisations (like Transparency International) in order to

focus our discussion.

2UN Resolution 51/59, Action Against Corruption (A/RES/51/59, 82nd plenary meeting, 12 December

1996), available online.

3Codes of Conduct for Public Officials, Recommendation Rec(2000)10, available online.

4Recommendation on Improving Ethical Conduct in the Public Service (23 April 1998), available (with

discussion) online.

5Main features of an Ethics Framework for the public sector, proposal by the Dutch Presidency, available

online.

Table 1. List of International Recommendations on Public Officials’ Ethics

Sponsoring

organisation

Name of instrument Details Philosophical

approach

United Nations

(UN)

International Code

of Conduct for

Public Officials2

The Annex to Resolution 51/59

contains an International Code of

Conduct for Public Officials. The

Code contains general principles

(such as those described below),

provisions related to conflict of

interest, the disclosure of assets,

prohibitions on the acceptance of

gifts, restrictions on the handling

of confidential information and

engaging in political activity. The

Code is relatively brief (about

two pages).

Hard-law approach

Council of

Europe (CoE)

Codes of Conduct

for Public Officials3

The CoE code—spanning 14

pages—deals with most of same

issues as the UN International

Code. As usual, CoE work tends

to be more detailed. A number of

provisions deal with specific

issues considered now a vital part

of a code of conduct—such as

cooling off periods.

Hard-law approach

Organisation

for Economic

Cooperation and

Development

Recommendation

on Improving

Ethical Conduct in

the Public Service4

The least helpful of all the work on

codes of conduct, the

Recommendation provides 10

very abstract categorical

imperatives.

Soft-law approach

EU Proposal for an (EU)

Ethics Framework5

Only slightly better than the OECD

work, the proposal comprises a

think-piece on general attributes

required of a code of conduct.

Soft-law approach

Source: Authors based on cited documents. The dichotomisation of the legal instruments presented in the

table represents our own interpretation—as the division between soft law and hard law provisions is not

clear.

March 2012 Issues in Anti-Corruption Law

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© 2012 Blackwell Publishing Ltd.