Time to reflect on a remarkable document that appeared in Romania just before the holiday season. This is the officially titled Agreement on Institutional Collaboration between the President of Romania and the Prime Minister of the Government.

The document was first seen being handed to Martin Schulz, the President of the European Parliament, by President Traian Băsescu at the EU Summit meeting on 14 December. It was then made public on the website of both the president and the PM, Victor Ponta. There is an English version here. (Thanks to Elliott Bulmer). The official nature of the document is, thus, clear.

The document is explicitly designed to regulate the current period of cohabitation, or, perhaps more accurately, the period following the formation of the new government in December 2012. The aim is clearly stated: “The institutional cooperation agreement is aimed at keeping the country stability and ensuring a functional climate for a good governance and ensuring the confidence of international markets, through harmonization of joint positions within the Executive power, with observance of the constitutional powers of the Romanian President and Government”.

Some of the document has a general ‘political spin’ flavour to it. So, both parties agree to “respect for Constitutional values and fundamental institutions of the state …”. Let’s face it, though, it is difficult to imagine either party ever justifying an action against the other by saying that they are not respecting the rule of law.

That said, there are some more specific commitments. For example, the document states that the parties “commit to refraining from attacks against the rule of law institutions and those included in external commitments, of financial and political nature, opting to cooperate in their common positions towards IMF, WB, Council of Europe, NATO, MCV, Schengen, etc.”.

Interestingly, they agree a formal division of labour (let’s call it the ‘segmented decision-making model), whereby the respective powers of the president and the PM are identified: “President: foreign policy, defence policy, representation to the European Council, according to Constitutional Court’s Decision. Prime Minister: Economic and social policy, country’s government, current problems that do not have direct impact on national security, external relations at inter-government and European levels.”

Perhaps more interestingly still, they identify certain areas of cooperation where they explicitly state that they have to work together. They are:

– foreign policy and cooperation with MAE (Foreign Affairs Ministry):
– policy within EU and cooperation with MA Eur (European Affairs Ministry) and MAE;
– appointment of generals;
– appointment of Ambassadors;
– appointment of the General Prosecutor, Chief Prosecutor of DNA, or other positions requesting Constitutional powers of President and Government;
– developing common positions on third topics;
– domestic policy topics with incidence in the national security area.

The document states that if agreement cannot be reached in these areas, then “the final decision-maker will have priority”. That may beg a question as to who the final decision-maker actually is, but presumably it relates back to the general spheres of influence identified above.

Finally, there are two remarkable paragraphs that give us an insight into the actual decision-making process. Paragraph 6 states that decision-making “is mainly the meeting or direct discussion between President and Prime Minister. Exceptionally, other persons can be involved, with the permission of the two officials, or a topic can be delegated to the administrative system of the two institutions – advisers, technical apparatus.” Paragraph 7 then identifies a conflict-resolution mechanism: “The dispute resolution mechanism comprises advisers and Ministers, with a person designed by each side to manage each component. The designation will be made according to the topic debated, and there will be avoided [sic] controversial persons or unacceptable to the other party”.

This is the first document of this sort that I have ever heard of. While it does contain some very general statements of intent, it also some contains some quite detailed commitments. Of course, it has no constitutional or legal status. Therefore, it is not justiciable. So, it is a ‘working agreement’. If either side violates it, then the only sanction is political or electoral. Even so, there will be some pressure to keep to it.

The pressure to keep to it is emphasised by the fact that the document has not just a domestic but an external audience too. The fact that President Băsescu was handing it out to Brussels is one sign of that. It is also worth noting that the document was issued just before the Venice Commission issued its ruling on the impeachment events earlier in the year. The ruling was quite critical. So, there was a sense that the public institutions felt that they needed to be publicly seen to have regulated the situation. There was a fear that the EU may not be as forthcoming with its aid if this was not the case and that foreign exchange markets and international lenders might react badly at the prospect of ongoing conflict. So, there is an international realpolitik at work.

Whatever the motivation, it doesn’t take away from the uniqueness of the document.