available languages: english October 1, 2020

On 30 September, the European Commission unveiled its first annual rule of law report for all 27 EU member states.

DRI’s Jakub Jaraczewski and Michael Meyer-Resende answer some of our questions about the report and what it actually means for the rule of law in the EU.

  1. What is this Rule of Law report?

This is the first annual report by the European Commission that examines the state of the rule of law in every member state. It focuses on four main areas: national justice systems, anti-corruption frameworks, media pluralism and freedom, and other institutional issues related to democratic checks and balances.

The report looks at major issues, ongoing developments, positive changes, best practices and other notable information on the rule of law situation in every EU member state. It is grounded, among other sources, in legal standards laid out in EU law, European Court of Human Rights case law and standards established by the Council of Europe.

One significant point to note is that the Commission does not include recommendations on addressing the issues it identifies.

  1. What are the takeaways from these reports?

The report is couched in positive terminology, with several countries highlighted as having very high domestic standards in the four areas mentioned above, with many essential elements in place. Member states commonly associated with outstanding independence of the judiciary, free media, lack of corruption and a strong culture of the rule of law, such as Finland or the Netherlands, were unsurprisingly praised for their achievements.

However, no country got a clean bill of health from the Commission, which identified issues in each country. A few member states face serious challenges and backsliding but the report stops short of using that term.

Unsurprisingly, Hungary and Poland stand out as facing the biggest issues. In both of these countries, extensive and critical concerns regarding core elements of the rule of law have been identified by the Commission.

Several other countries, while not seen as facing similarly severe challenges, are highlighted as facing specific issues. These include Slovakia, Croatia, Romania, Bulgaria and Malta.

While many western countries are praised for their achievements, the report highlights issues present in every one of them, ranging from the government’s ability to instruct prosecutors in Austria and Germany to weaknesses in prosecuting corruption in Luxembourg.

Overall, the most serious concerns arising from the report include:

(a) Justice System: independence of the judiciary and prosecutors from political interference, governmental reprisals against judges and prosecutors, and inadequate resources available for the judiciary.

(b) Anti-corruption Framework: impunity of high-ranking officials, problems with the complexity of investigating financial and economic crimes, and a lack of verification and enforcement for integrity measures.

(c) Media Pluralism: political pressure on private media outlets, attacks on journalists and lopsided distribution of state-funded advertising.

(d) Other Institutional Issues: excessive use of emergency legislation and shrinking space for civil society.

The Commission did not focus solely on negative developments, even in countries facing serious rule of law issues. Achievements and good practices were identified across the board, which could serve as a source for peer learning or impetus for further reforms.

  1. Are there surprising results in this report, or does it confirm existing assessments of rule of law discrepancies within the EU?

While the report presents an overall picture of the rule of law in the EU that is unsurprising, some elements stand out. The Commission highlights a frequently side-lined element, namely an existing or emerging rule of law culture in the society, as a positive factor in many countries, particularly Germany, the Netherlands and Slovakia. Countries that have based their strong legal culture and respect for the rule of law on tradition and custom have begun to codify these measures in response to the backslide seen in other countries.

The covid-19 pandemic created an unexpected challenge to the reporting process already underway, with emergency measures adopted by European governments having a direct impact on the rule of law. The Commission has addressed this challenge unevenly across the country chapters, often offering no more than a cursory examination of the pandemic’s impact. This unevenness makes comparison across the EU impossible (for an overview, see DRI’s legal analysis of the EU-27’s covid-19 measures).

A welcome element of the report is frequent, if uneven, focus on the importance and role of National Human Rights Institutions, which have emerged in several countries as institutions that not only protect and promote human rights but also safeguard the rule of law. One significant example of this is the crucial role played by the Polish Commissioner for Civil Rights and the challenges faced by their office.

  1. How is this new annual report different from tools that already exist?

So far, the Commission has only engaged in ad hoc dialogue on the rule of law with some member states and continues to employ Article 7 TEU disciplinary procedures against Poland and Hungary, as well as the Cooperation and Verification Mechanism for assistance in strengthening the rule of law in Bulgaria and Romania. The Commission has also launched several infringement procedures and taken member states before the Court of Justice of the EU (CJEU), some of which have successfully forced member states to roll back legal amendments or policies that adversely affected the rule of law.

This report is the first Commission tool that takes inventory of the rule of law in all member states. This helps deflect criticisms that the Commission applies double standards on the rule of law and does not examine issues outside states in Central and Eastern Europe.

Unlike other tools, such as the Article 7 procedure, the annual report does not aim to result in direct change. The Commission states that the report is a preventive tool and is intended to provide a basis for an inclusive debate on the rule of law across the EU.

  1. How was the report put together?

The Commission relied on country visits, cooperation with member states and consultations with stakeholders to compile the report. Member states were actively engaged throughout the process and submitted national assessments of their situation. A wide range of stakeholders was consulted, from the EU’s own Fundamental Rights Agency and intergovernmental organisations such as the Council of Europe to civil society groups across Europe, including lawyers’ associations. There was also an open call for input from stakeholders, including an opportunity for anonymous submissions.

The report is firmly presented as a product of the Commission, which takes full responsibility for the text. While the methodology was ambitious, it could be improved in the future. Notably, elections and other democratic participation processes, such as referendums and public consultations, were not included in the report, although they are an essential aspect of democratic lawmaking. As a result, the Commission did not address the fact that elections in member states like Hungary do not conform to its obligations anymore.

Positively, the Commission included a wide approach to the rule of law, including freedom of the media as a key theme of the report, as they provide wider checks and balances to governments. Unfortunately, the Commission decided not to address the issue of state media, which in some countries has become completely biased in favour of respective governments.

  1. How is this connected to the German presidency proposal on budget conditionality adopted by the Council of the European Union?

The report is not directly connected to the German presidency’s proposal for linking EU budget funding to the rule of law. The Commission, and Vice-President Věra Jourová, have emphasised that the reports are a preventive tool, not a sanction mechanism.

In contrast, the conditionality mechanism adopted by the Council is a reactive instrument, far more limited in scope and strongly linked to threats to EU funds arising from breaches in the rule of law.

In short, the conditionality aims to shield EU budgets from concrete threat, while the annual report provides grounds for further engagement and dialogue on a wider range of issues. It thus underpins other actions of the Commission, such as future infringement litigation before CJEU or the ongoing Article 7 procedures.

  1. What is next?

With the report adopted, the Commission is now expected to use it in its long-term work on the rule of law. Jourová and Reynders highlighted the annual nature of the report and its use as a basis for discussion at the national level. Meanwhile, both Reynders and the German presidency have also declared their intention to establish a series of rule of law check-ins with the member states at the EU level shortly.

Basically, the report established rule of law, human rights and democracy more firmly as a subject matter of internal concern for the EU, but it has no concrete short-term impact. It is more of a diagnostic tool than a preventive one. So far, governments that inflict the biggest damage to the rule of law have only responded to hard measures like court decisions and financial penalties. This tool will not be the one that stops rule of law backsliding.

Democracy Reporting International (DRI) works to improve public understanding of the rule of law in the EU as part of the re:constitution programme funded by Stiftung Mercator. Sign up to DRI’s newsletter and follow us on Facebook and Twitter to find out more about the rule of law in Europe.

Photo credit: European Union