The European Commission’s Rule of Law Report: a key tile in the mosaic of rule of law protection in the EU

Will the newly launched Report strengthen the already existing toolkit of the European Union to prevent and resolve violations of the rule of law in Member States?

On the 30th of September, the European Commission released its long-awaited first EU-wide annual “Rule of Law Report” on the situation of the rule of law in the European Union. The Rule of Law Report is one of the major initiatives of the Commission’s Work Programme for 2020, and part of the comprehensive European Rule of Law Mechanism announced in the Political Guidelines of the President. The goal is to focus on improving understanding and awareness of issues and significant developments, identifying rule of law challenges and helping Member States find solutions with support from the Commission and the other Member States, as well as stakeholders including the Venice Commission. Largely as a response to the so-called democratic backsliding, the Commission assembled portfolios on every Member State, covering four main pillars: national justice systems, anti-corruption frameworks, media pluralism and freedom, and other institutional issues related to the checks and balances essential to an effective system of democratic governance.

The first Report found that the rule of law is facing important challenges in some Member States, notably Hungary and Poland where the judicial systems are under threat. The report also voiced concerns about the independence of the judiciary and corruption in Bulgaria, Croatia, the Czech Republic, Hungary, Malta, Romania and Slovakia. Unsurprisingly, Hungary immediately dismissed the report as irrelevant and biased, arguing that they are being unfairly targeted, while the European Union has been accusing both countries of violating rule of law standards for years and pursuing sanction procedures against them.

The expectations on the new Rule of Law Report have been especially high with regard to cases like Hungary and Poland. Nevertheless, sanctions and grandiose commitments for action – to which the Report admittedly falls short – are not the only tools to combat the rule of law crisis. While, indeed, intervention and problem-solving lie in the one side of rule of law protection, on the other side, rests pre-emptive monitoring. In this context, the Report should be welcomed, as a crucial tile in the monitoring effort, but also as a significant contribution to problem-solving, and as a good precedent for more initiatives, such as the preliminary agreement to tie access to EU funds to respecting the rule of law.

Contextualizing the Rule of Law Report: the EU’s rule of law monitoring mechanisms

The Commission already has some mechanisms in place to monitor public administration in all Member States as part of the so-called European semester, which provides a framework for co-ordination of national economic policies. In addition, the Commission’s ‘justice scoreboard’ compares Member States’ judicial systems, aiming to encourage a business- and investment-friendly environment. Moreover, the EU can draw on reviews conducted by other organizations such as the Council of Europe or the United Nations. However, the EU monitoring mechanisms in place do not give a full picture of the state of democracy across the Union, and as such remain lacking – instead, the Rule of Law Report seems to address some of the main problems that remain common in the EU monitoring effort.

The first problem that the EU monitoring mechanisms have to face concerns the collection of data. The justice scoreboard, for instance, draws on information from a number of sources, but its quantitative data, such as the length of court cases, rely mainly on data submitted by Member States themselves via the European Commission for the Efficiency of Justice. However, this comes at a cost for there is the assumption that Member States are always eager to share data, whereas reality tells a different story. Since 2014, the UK has refused to submit any data, seeing it as an example of Commission overreach, while a number of other Member States, including Belgium, Germany and Ireland, have also failed to provide some data, whether for political reasons or because their national authorities do not collect some of information the Commission requests.

Against this background, the Report has managed to differentiate itself, by ensuring the uniform provision of the required data. How was this possible? In some respects, the Rule of Law Report shares some similarities with the United Nations Universal Periodic Review (UN-UPR), by replicating “horizontal and country-specific contributions”, and allowing all Member States to participate in the process by providing written contributions and through the organization of dedicated virtual country visits. Nonetheless, the Rule of Law Report goes beyond the UN-UPR, by also involving independent experts. Aiming to give a reflective picture of the rule of law status quo, the Report aims to be the result of close dialogue with national authorities and stakeholders, and to cover all Member States on an objective and impartial basis. The qualitative assessment carried out by the Commission focuses on significant developments since January 2019 and ensures a coherent approach by applying the same methodology to all Member States, while remaining proportionate to developments.

Secondly, except for the Member State’s uncooperativeness, the EU’s own surveys are also often too narrow in scope. The rule of law is in danger not only when a government directly undermines judicial independence, but also when it makes it impossible for media and civil society organizations to scrutinize its actions – issues which EU surveys have so far neglected. The EU co-funds the Media Pluralism Monitor, a tool designed by the Centre for Media Pluralism and Media Freedom to assess the risks to media pluralism in a given country, but has yet to make much of it – it has only been recently that President Von der Leyen asked Vice President, Věra Jourová, to use the Monitor to identify threats to media plurality in the EU.

Instead, the Report seems to widen the scope of investigations and to rectify the omissions of the past. The assessment is not limited to rule of law issues in the narrow sense, but also covers aspects that have a direct bearing on the rule of law, by covering four main pillars, namely national justice systems, anti-corruption frameworks, media pluralism and freedom, and other institutional issues related to the checks and balances essential to an effective system of democratic governance.

Thus, it seems that the preventing objective of the Rule of Law Report is promising – efficient monitoring should in principle enable the Commission to nip any rule of law problems in the bud, before they reach the level of a “serious and persistent breach” (Article 7 TEU) of EU values, and put European co-operation at risk.

Contextualizing the Rule of Law Report: the EU’s rule of law toolbox for intervention

While commentators have been positive in welcoming the Rule of Law report as a more holistic monitoring initiative, they have also criticized it as being “too little, too late”, given that it ensures prevention, but does not provide for sanctions. While this is a legitimate concern for the EU rule of law regime in general, such critiques miss the point of the Report per se, i.e. its clear monitoring objective, and project on it unrealistic expectations for action that are incompatible with its stated aim. After all, the Report does not replace the Treaty-based mechanisms for the EU to respond to more serious rule of law related issues in Member States. Apart from fulfilling successfully its monitoring role, though, it becomes evident that the Report has the potential to also facilitate and optimize the tools that the EU uses to intervene in rule of law crises.

What are those tools? When the EU concludes that a Member State is undermining the rule of law, it has a number of tools to respond. The Commission can investigate threats to the rule of law and recommend policy changes, using the so-called rule of law framework. If dialogue with a recalcitrant Member State does not resolve the issue, the Commission can recommend that the Council determine that, “there is a clear risk of a serious breach of the EU values referred to in Article 2 of the Treaty on European Union” (Article 7 TEU) and activate Article 7 TEU, potentially leading to a Member State’s voting rights being suspended. The Commission can also open an infringement procedure against a Member State when it believes that illiberal reforms violate EU law. Lastly, there is the proposal for the budget conditionality procedure, which aims to protect the EU budget in situations where the Union’s financial interest might be at risk due to generalized deficiencies of the rule of law in a Member State.

While these tools are in abstract well suited to ensure compliance with the rule of law, they are not without problems. Three  such problems in particular are worth highlighting.

First, populist governments have often undermined EU values without breaking EU law as such. The Polish government, for example, has attempted to use this flexibility to limit the independence of the country’s Supreme Court (among other things), without violating any specific EU directive or regulation in the process. The Polish government has claimed that it is up to Member States rather than the EU to decide how their judiciary should be organized, invoking the ‘national sovereignty’ counter-argument. In November 2019 the Court of Justice of the European Union (CJEU) issued two landmark judgments concerning the independence of the judiciary in Poland (Case C-192/18 and Joined cases C-585/18, C-624/18 and C-625/18) – the first concerning the provisions lowering the retirement age of judges and public prosecutors and the second, on the newly created Disciplinary Chamber of the Supreme Court. The CJEU has so far been effective in countering this limitation, by declaring itself competent to assess the judicial independence of national courts that apply and interpret EU law (Case C-216/18). The judicial rectification of rule of law issues render the EU vulnerable to critiques that such channels are not legitimate or democratic enough. Thus, the Report could be a powerful tool in the hands of the Court and a vehicle of legitimization for its judgements, since the Report aims to be the result of close dialogue with national authorities and stakeholders, and to cover all Member States on an objective and impartial basis.

A second problem with the EU’s response to democratic backsliding is that so far it has focused on deploying punitive measures – either via the Article 7 mechanism, infringement procedures or financial pressure. For instance, in May 2018, the Commission put forward a proposal to enable it to reduce or suspend EU funding if a Member State did not respect the rule of law. But there are concerns among independent experts that the draft regulation fails to make a solid connection between the objective of protecting the EU’s financial interests and deficiencies in the rule of law in a Member State. While the EU has various sticks to punish those that flout the rule of law, it has yet to develop any carrots to help encourage public support, and to increase understanding of why it cannot turn a blind eye on the rule of law violations. The Report could be a step in the right direction since, it explicitly covers both negative and positive rule of law developments, highlighting both challenging and reassuring reforms in the member states and indeed, emphasizing positive developments, so as to encourage member states. As pointed out by Didier Reynders, Commissioner for Justice and Consumers, it provides a way to both share good practices and pre-empt challenges before they become entrenched.

Third, the EU is seen as responding to rule of law violations in different countries in an inconsistent way, something that has opened it up to accusations of bias. For instance, although the Hungarian government started undermining the country’s democratic checks and balances to a significant extent in 2010, the Commission refused for several years to invoke Article 7. By contrast, when the Polish government started following Hungary’s playbook just months after it took power in 2015, the Commission was quick to take action under the rule of law framework. The Commission’s different approaches to similar violations in the two countries has made it easier for PiS, Poland’s governing party, to claim that it is being singled out unfairly.

The Report might still be criticized as biased, since its content is controlled by the Commission, and has not been delegated to experts or a new agency. The risk is that the Commission’s analysis can be seen as being politically motivated in some Member States. Proponents of keeping the review in the Commission’s hands will say, however, that since the assessment could form the basis for legal action, the Commission, as the guardian of the treaties, should conduct it; that way it would certainly be admissible evidence at the CJEU. The Commission could also offset such criticism with a public information campaign explaining the factual basis for its assessment.

A real rule of law culture: the foreshadowing of the Rule of Law Report

It will be vital to follow the effect of the Rule of Law Report closely both in terms of its monitoring capacity and its potential to offer the basis for well-designed and substantiated intervention and problem-solving, despite the fact that it seems promising on both fronts. Undoubtedly, the Report cannot single-handedly change the rule of law landscape of the European Union, yet it can certainly be viewed as an important political signal of the EU’s clear intent to uphold core values – more commitments and initiatives, such as the preliminary agreement to tie access to EU funds to respecting the rule of law, could be pursued, while the already existing ones could be strengthened.

Ultimately, one of the main features of the new Rule of Law Report is the initiation of an open and regular dialogue with every Member State, which can ultimately help all Member States examine how challenges can be addressed, learn from each other’s experiences, and further strengthen the rule of law in full respect of national constitutional systems and traditions. As pointed out by Reynders: “The goal is to instill a real rule of law culture across the European Union and trigger a genuine debate at national and EU level.”