by Prof. Laurent PECH; Senior Research Fellow, Petra BÁRD, Associate professor, Eötvös Loránd University, Faculty of Law; Researcher, CEU Department of Legal Studies and CEU Democracy Institute; Fernand Braudel Fellow, European University Institute
Rule of law backsliding represents a major, existential challenge for the EU as it structurally endangers the foundations of the EU as a Union based on the rule of law and fundamentally threatens the functioning of the EU’s interconnected legal order. To address the EU’s worsening rule of law crisis and more broadly, the unprecedented and spreading attempts by some national authorities to organise the systemic undermining of EU’s shared foundational values, the European Parliament proposed a new EU mechanism in 2016 to better monitor and enforce the values of democracy, the rule of law and fundamental rights (DRF mechanism).
Instead of embracing the European Parliament’s proposal, the Commission designed its own new annual European Rule of Law Mechanism. The European Rule of Law Mechanism provides an annual process for dialogue on the back of an Annual Rule of Law Report (ARoLR) which the Commission has presented as a new preventive tool. Launched for the first time in 2020, the ARoLR takes the form of twenty-seven country chapters and an umbrella report presenting an overview of the situation of the rule of law situation across the EU. To date, the ARoLR has focused on four “pillars”: (i) national justice systems; (ii) national anti-corruption frameworks; (iii) media pluralism; and (iv) other institutional checks and balances.
The Commission’s ARoLR differs in many respects from the European Parliament’s DRF proposal. Most importantly, the ARoLR foresees lesser involvement for other EU institutions and does not provide for any formal involvement of external experts. It is also narrower in the sense that its scope is more limited as it does not directly cover democracy and fundamental rights; does not (yet) include country specific recommendations and does not automatically lead to the adoption of specific Council conclusions and a Parliament resolution.
This study offers a critical assessment of the Commission’s ARoLR within the broader context of the EU’s DRF architecture, and formulates recommendations in order to address the ARoLR’s negative features identified by the present authors: the creation of false expectations; the use of euphemistic language; the lack of context and connected failure to see the wood for the trees; the denial of (autocratic) reality and resulting category errors; the emphasis on “dialogue no matter what”; and finally, the opportunity costs and possible displacement effect the ARoLR has had on enforcement. This is not to say that a number of positive features cannot be identified. The ARoLR can indeed be commended for offering a compelling definition of the rule of law; a clear outline of why the rule of law matters; a broadly suitable selection of relevant “pillars” and main sources of information; and increasing the political saliency of the rule of law.
This study’s main recommendations summarised below aim to remedy the ARoLR’s identified gaps and shortcomings in the short to medium term. On the long term, it is recommended that renewed consideration is given to
(i) the extension of the ARoLR’s scope so that all Article 2 TEU values are subject to annual monitoring given that these values must be viewed as interconnected, interdependent and mutually reinforcing;
(ii) the extensive involvement of an expert panel and
(iii) the adoption of automatic legal and/or financial actions when country specific recommendations (which the third edition of the ARoLR is expected to contain for the first time) are not fully and promptly addressed.
Considering the Commission’s continuing opposition to the adoption of a mechanism akin to the Parliament’s proposed DRF mechanism, this study has prioritised the elaboration of recommendations which can be actioned in the short to medium term with the view of improving the effectiveness of the ARoLR without fundamentally changing its current scope and structure.
Recommendations on methodology:
• A better preparation and publication cycle should be organised and in particular, the same time window should be used each year so that planning can be done ahead of the timeline’s official publication in respect of the next edition of the ARoLR;
• The Commission should promptly publish the input documents they receive from national governments so as to enable experts and civil society groups to fact check them as soon as possible;
• The Commission should be mindful of deliberate attempts to deceive it by those engaged in the systemic dismantlement of checks and balances and their proxies, such as government-organised non-governmental organisations (GONGOs). In this respect, it is recommended that the Commission provides clearer details than currently regarding country visits and interviews; selection of stakeholders, information selection, as well as greater protection for government critiques, especially those based in countries subject to an ongoing Article 7 procedure;
• The Commission should elaborate on the indicators taken into account for assessing the rule of law situation in each of the Member States and should aim to undertake a comprehensive assessment of the same elements based on the same indicators in all country chapters;
• The Commission should seek to take better account of the data and findings from relevant indices such as the Worldwide Governance Indicators (WGI) project, the World Justice Project Rule of Law Index, or the Varieties of Democracy (V-DEM) project;
• The involvement of an expert panel/network of external experts and/or the EU Fundamental Rights Agency should be considered if only at first to merely provide feedback to the Commission and help inter alia with methodological issues.
Recommendations on scope and structure:
• As long as the ARoLR is not extended to cover other foundational values enshrined in Article 2 TEU, the Commission should at a minimum better link the ARoLR with the values of democracy and fundamental rights and connected EU action plans and other strategies, considering the interconnected and mutual reinforcing nature of Article 2 TEU values. Scrutiny over judicial independence for example could extend to the evaluation of fair trial rights, access to justice, equality before the law in national case law;
• New civic space pillar: As long as the ARoLR does not fully encompass all the Article 2 TEU values, the Commission should also consider adopting a fifth pillar dedicated to monitoring national developments relating to civic space considering the crucial importance of civil society when it comes to maintaining and protecting a democratic and pluralist society as well as a proper functioning of public life;
• New Article 7 section: The insertion of a new Article 7 TEU state of play section in the umbrella report is recommended so as to better highlight in a transversal way the evolution of the situation in the countries which have already been identified as being on an autocratisation pattern following the activation of one of the procedures laid down in Article 7 TEU;
• New EU chapter: In addition to the country chapters, the publication of a new EU chapter is recommended with the drafting of this report to be done either by the EU Fundamental Rights Agency and/or a new panel or network of academic experts.
Recommendations regarding effectiveness and follow up:
• The ARoLR should better outline countries’ rule of law adherence over a sufficient long period of time and highlight cross-cutting trends at EU level. This could be done inter alia by taking into account and summarise key data and findings from relevant indices such as the Worldwide Governance Indicators (WGI) project, the World Justice Project Rule of Law Index, or the Varieties of Democracy (V-DEM) project;
• In order to better identify threats and violations of the rule of law and make non-compliance with court judgments a recurrent, more salient and costly issue for relevant national authorities, in addition to the forthcoming new country specific recommendations, the ARoLR ought to include data and information regarding non-compliance (or bad faith implementation) with CJEU orders and judgments but also national and ECtHR orders and rulings which concern any issue relating to any of the ARoLR’s pillars;
• To guarantee better follow up, the ARoLR (including the country-specific recommendations) should be more directly aligned with other rule of law tools and procedures, such as infringement procedures and the Rule of Law Conditionality Regulation 2020/2092, so that remedial action could be more swiftly, consistently and effectively organised in situations where national authorities ignore or violate relevant recommendations;
• The adoption of urgent reports ought to be considered so as to allow for a prompt and formalised answer from the Commission in a situation where national rule of law related developments are indicative of a serious danger; if state action results in the violation of individual rights on a mass scale or if state action amounts to irreversible or systemic threat to or violation of the rule of law;
In addition to or alternatively to the suggested adoption of urgent reports, the Parliament should consider requesting the Commission to present a mid-year assessment of the state of compliance (or non-compliance) with the ARoLR’s country-specific recommendations, with the Commission to be also requested to specify how non-compliance will be dealt with.
(LINK TO THE FULL REPORT)