Thursday, 01 October 2020
The European Commission published on Wednesday its first annual report on the rules of law in the EU member states covering both positive and negative developments.
In fact, the report is a package consisting of a Communication on the overall situation in the EU and 27 country-specific reports. What is missing is the situation in the EU institutions themselves though the majority of the rule of law indicators mainly apply for national governments.
According to the Commission, the aim of the report is to enlarge the existing EU toolbox with a new preventive tool and to kick-start an inclusive and open debate on the rule of law culture across the EU. It should help all member states examine how challenges can be addressed and learn from best practice in other countries.
The Communication, including the 27 country reports, shows that many member states have high rule of law standards but also that some of them are facing important challenges to the rule of law, some of which are stemming from the emergency measures taken by member states due to coronavirus crisis.
The report was presented by Vera Jourová, Vice-President for Values and Transparency, and Didier Reynders, Commissioner for Justice and Consume, at a joint press conference (30 September). Jourová grew up in an authoritarian country (former Czechoslovakia) without the rule of law. For her, the rule of law cannot be taken for granted and needs always to be defended.
Both of them underlined the preventive purpose of the report. The idea was to map the situation in all member states and not focus on only those with serious problems. The report was preceded by a close dialogue with national authorities and stakeholders, including hundreds of virtual meetings with them.
“The new report looks for the first time at all member states equally to identify rule of law trends and help to prevent serious problems from arising. Each citizen deserves to have access to independent judges, to benefit from free and pluralistic media and to trust that their fundamental rights are respected,” Jourová said. “Only then, can we call ourselves a true Union of democracies.”
Despite the importance of the report, the Commission lowered the expectations of its immediate impacts on the member states.
The report is expected to open a new chapter in the Commission’s dialogue with the member states but not to replace other mechanisms for the EU to respond to more serious rule of law related issues in member states, such as infringement procedures, the cooperation and verification mechanism for Bulgaria and Romania, and , as a last resort, article 7 on suspending certain rights of a member state.
These other mechanisms have not always proven to be effective and much hope is now pinned on the proposed budget conditionality procedure, which aims to protect the EU budget in situations where the Union’s financial interest might be at risk due to generalised deficiencies of the rule of law in a member state. Provided that the member states with such problems will not veto the new procedure.
“The first rule of law report published by the Commission echoes Transparency International’s concerns over ineffective rule of law and anticorruption measures in place in many EU member states, and underpins calls for a robust rule of law conditionality mechanism in the upcoming Multiannual Financial Framework,” commented Nick Aiossa, Deputy Director at Transparency International EU.
The launch of the report started on a wrong footing because of a dispute between Hungary and Jourovà following her interview in a German magazine. She declined at the press conference to comment on the complaint that Hungary has sent to Commission President von der Leyen.
Rule of law definition
When defining the rule of law concept, the Commission starts from article 2 in the Treaty which states that the Union is founded on “the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities.”
The concept has been further developed in case law and the rulings of the European Court of Justice and the European Court of Human Rights. Asked about Hungarian Prime-Minister Orban’s vision of his country as an “illiberal democracy”, Jourová replied that she has not seen any definition of what is meant by this and referred to the principles in the Treaty.
The rule of law includes principles such as legality, implying a transparent, accountable, democratic and pluralistic process for enacting laws; legal certainty; prohibiting the arbitrary exercise of executive power; effective judicial protection by independent and impartial courts, effective judicial review including respect for fundamental rights; separation of powers; and equality before the law.
The reports cover four main pillars with a strong bearing on the rule of law: 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.
While good examples of rule of law standards are reported from most if not all countries, the country specific assessments do show that judicial independence remains an issue of concern in some member states and that this has led to infringements or Article 7(1) proceedings (against Hungary and Poland).
The same can be said about anti-corruption strategies. Besides positive developments, the effectiveness of criminal investigations, prosecution and adjudication of corruption cases, including high-level corruption, is still a challenge in several member states. Media freedom faces threats in a number of countries. Institutional checks and balances have been disrupted by emergency legislation.
Every member state was offered the opportunity to check the factual accuracy of their country report but the assessment of the facts is the Commission’s own.
“We did our best to be factually correct,” Vice-President Jorouvá replied to a question from The Brusssels Times but added that that the rule of law area is not matter of simple accounting but something partly abstract and sensitive. “We have a duty to do the factual assessment as objective as possible. Of course, there were member states that had factual comments.”
Commissioner Reynders, who was in charge of the consultation with the member states, added that the cooperation with all of them “was very good at all stages” and that the Commission did some corrections of factual inaccuracies but not of the assessment itself. “It’s the Commission’s assessment, not a joint assessment,” he underlined.
As usual, the question can be asked if all current member states would qualify to join the EU today if they would have to comply with the same strict conditions as the current candidate countries knocking on EU’s door. Some of the new member states that joined the EU in 2004 and 2007 have been backsliding in their reform processes since the Commission lost its leverage over them.
An issue raised in some country reports is the lack of implementation of whistleblower legislation following the 2019 Directive on Whistleblower Protection. The directive sets minimum standards for the protection of whistleblowers reporting breaches of EU law in areas such as environmental safety, consumer protection, and financial services.
However, the directive does not include the staff members of the EU institutions, agencies, and bodies, said Nick Aiossa, the Transparency International expert. Instead different internal rules are in place, some of which are below the standards required of the member states, resulting in few cases. Public disclosure of wrongdoings is not allowed under any conditions. “Staff doesn’t feel protected.”
The Brussels Times