As part of the 2023 EU rule of law report, Democracy Reporting International will submit a contribution to the European Commission’s stakeholder consultation process touching upon key horizontal developments concerning the rule of law in the European Union. As part of this process, we’d like to present a summary of our key points that we wish to raise as part of the stakeholder consultation process, with a view towards civil society and other actors to consider these items in making their own submission and for the Commission to reflect and address these issues in preparing the report. While the list of issues we highlight here is far from exhaustive and other major concerns with the rule of law in the European Union have long been in our focus, we believe that these critical, yet occasionally less obvious items deserve particular attention.
Examining the impact of the war in Ukraine
The ripple effects of the full-scale Russian attack on Ukraine also affect the rule of law in the EU. Multiple items have been impacted, chief among them the situation of refugees from Ukraine in EU Member States, including the state of laws and policies enacted to facilitate their long-term stay, as well as court protection of their rights and freedoms. The refugees face challenges related to the legal systems of EU Member States operating exclusively in national languages and occasionally English, with a low number of available sworn translators of Ukrainian/Russian and the authorities tasked with the integration of refugees being unprepared for supporting such large numbers of incoming people from an area which had little prior regular migration.
Beyond the challenges of facilitating the refugees, multiple other areas of the rule of law in the European Union have been impacted by the war. We’ve partnered recently with Verfassungbslog to review these and published a series of articles outlining the key rule of law challenges related to Russia’s aggression.
Recommendation: the Commission should take a broader look at the rule of law impact of the war, in particular, the situation of refugees from Ukraine in EU MS
Assessing the non-implementation of CJEU and ECtHR rulings
With an increasing number of judgments from European courts being non-implemented by EU Member States and, in some cases, such courts being directly challenged by governments or constitutional courts in EU MS, there’s a case for expanding the current assessment of non-implementation of rulings from ECtHR and look deeper into the systemic nature of the problem, and examine the status of key CJEU judgments and interim orders which have been ignored or challenges by EU Member States. This pertains to judgments and decisions of either court that directly concern issues covered by EU RoL report, such as courts and judges, media freedom, corruption and checks and balances.
Recommendation: the rule of law report should cover the systemic angle of the non-implementation issue, as well as look in detail into the situation of non-implementation of CJEU decisions
Highlighting the issue of widespread covert surveillance
The recent report from the European Parliament on the use of Pegasus surveillance software by EU Member States, which in itself is a massive right-to-privacy issue, highlights a significant problem of the apparent use of such means to spy on civil society activists, lawyers and journalists. Of particular concern is the use of such means by governments actively involved in undermining the rule of law towards their critics and opponents, paired with a lack of accountability and proper criminal investigations into abuse of surveillance. These issues all build upon earlier problems in EU Member States with overuse of covert spying on individuals and with lack of proper oversight and judicial guarantees.
Recommendation: the Commission ought to include an assessment of the issue of surveillance of persons directly involved in work on the rule of law, such as judges, lawyers, journalists and civil society activists
Factoring informal/contextual issues in the qualitative assessment
The Commission’s approach to assessing the states’ rule of law performance is problematic for two inter-related reasons, namely due to (a) its excessive emphasis on legislative developments and disregard of informal factors that can significantly affect the actual mechanics of decision-making and (b) its standardized approach to the legislative solutions proposed. Because of the varied rule of law culture across the EU, legal arrangements that work well in certain countries will fail in others. For example, in some states, politicians may interfere with judicial independence notwithstanding formal safeguards, while in others they may respect judicial independence even in the absence of such safeguards. Granted, solid formal guarantees can be helpful even in countries that have a well-developed rule of law culture. However, in most countries, they often fail at constraining politicians in practice.
It would be beneficial if instead of advocating the same standard solutions for all states, the Commission adopted a country-specific approach. Also, it would help if the Commission flagged not only legislative flaws but also informal practices (or behavioral patterns) that can render formal rules useless or ineffective. The work of CSOs, academics, and the media often provides ample evidence of such patterns of behavior. Extending the scope of its analysis this way would enable the Commission to contribute to improving the rule of law culture, possibly instigating changes in the mentality and behavior of relevant stakeholders.
Recommendation: The Commission should (a) factor specificities of the local context in its proposals and recommendations instead of taking a ‘one size fits all' approach. (b) flag not only legislative flaws or gaps but also informal practices undermining otherwise adequate legal changes, where possible.
Developing an Assessment scheme
According to its own description, in preparing its annual rule of law report, the Commission carries out a qualitative assessment, focusing on significant developments, highlighting both challenges and positive aspects for each EU member state. However, it does not give a clear assessment of whether the state has declined or improved as regards the areas covered by the report. While the Commission identifies trends, its analysis is somewhat fragmented and does not show, in a structured way, how the states’ performance evolves or how it compares to other states. This is a missed opportunity in terms of exploiting the soft power of the Report and pushing the reforms forward.
The Commission included country-specific recommendations in its 2022 report for the first time. It is not immediately clear how the Commission chooses the issues to focus on and whether those issues are central or peripheral to the rule of law crisis or decline in each country; while some recommendations are sufficiently specific, others are vague as regards the level of effort required. To give an example, the Commission sometimes requires “continuing efforts" without specifying any result to be achieved through such efforts. In terms of follow up, for each recommendation, the Commission should at least differentiate between the performance that is fully satisfactory, partly satisfactory or entirely unsatisfactory. It should set thresholds as to what would amount to full or partial compliance. In case of partial compliance, it would have to clarify what additional action needs to be undertaken.
While the fulfilment of recommendations can improve the rule of law situation in some ways, recommendations address only a portion of issues. The Commission could go beyond qualitative assessments and grade the states in specific areas covered by the Report. This would allow for a) meaningful cross-country comparison and b) tracing the evolution of the states’ performance over time. At least some states are concerned about how they are viewed by other states as well as how they compare to other states. Grades and ratings could stimulate reputational concerns and lead to improvements. The Commission’s conclusions would be picked up by the media and CSOs, maximising exposure and pressure and creating favourable conditions for change.
Recommendation: The Commission should come up with a scheme/methodology for assessing states’ rule of law performance (including but not limited to compliance with recommendations) capitalizing on states’ reputational concerns and thereby enhance soft power of its reports.
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 for DRI’s newsletter and follow us on Facebook and Twitter to find out more about the rule of law in Europe.