The Rule of Law Report: A story of preemption, political symbolism, and dialogue in the European Union

On September 30, 2020, the European Commission released its first annual Rule of Law Report. It assembled portfolios on the situation of the rule of law in every member state, covering four main pillars: national justice systems, anti-corruption frameworks, media pluralism and freedom, and other institutional issues related to checks and balances.

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

The Report is yet to be seen in action, but its release is an encouraging step towards the preemptive monitoring of rule of law violations, and the EU’s effective intervention against them. Most importantly, it has set a very fruitful precedent: it has acknowledged the importance of interstate dialogue.

The Report’s potential in the existing EU framework for rule of law monitoring

The European Commission already has mechanisms in place to monitor public administration in all member states. Yet, the deficiencies in their design render the Rule of Law Report a necessary tool for the communication of the full picture of the state of democracy across the Union. 

First, the Commission’s justice scoreboard compares the judicial systems of member states, aiming to encourage a business and investment-friendly environment. However, the justice scoreboard draws on quantitative data mainly relying on data submitted by member states via the European Commission for the Efficiency of Justice. Since 2014, the UK has refused to submit any data, seeing it as an example of Commission overreach. A number of other member states, including Belgium, Germany and Ireland, have also failed to provide data, either for political reasons or because their national authorities do not collect some of the information the Commission requests. The Report has managed to differentiate itself by assembling portfolios on all member states by ensuring the uniform provision of the required data. It 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, 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 Report seems to rectify the omissions of the past by widening the scope of its investigation, as 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 in the four main pillars aforementioned.

Thus, it seems that the Rule of Law Report is promising in its effort to further strengthen the preemptive spirit of rule of law protection in the EU. 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” referred to in Article 7 of the Treaty on European Union, and put European cooperation at risk.

The Report’s role in the EU’s active intervention against rule of law violations 

Beyond the monitoring task, the EU is also designed to intervene in rule of law violations. While 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, it seems that it has the potential of strengthening the reactive tools that the EU has in its arsenal. 

First, the EU’s response to democratic backsliding has focused so far on deploying punitive measures via the Article 7 mechanism, infringement procedures, or financial pressure. As such, it seems that while the EU has various sticks to punish those that flout the rule of law, it has not developed any carrots to help encourage public support and increase understanding of why it cannot turn a blind eye on rule of law violations. The Report could be a step in the right direction, by highlighting both challenging and reassuring reforms in the member states and indeed, emphasizing positive developments, so as to encourage member states.

Secondly, the EU is seen as responding to rule of law violations in Hungary and Poland in an inconsistent way, opening up to accusations of bias. 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. In contrast, when Law and Justice, or PiS, Poland’s governing party, 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 to claim that it is being singled out unfairly. On this front, the Report might not seem entirely adequate, as the Commission could have delegated the assessment of the situation in member states to experts or a new agency. Ultimately, the Commission did include experts’ views, but it remained in control of the content. 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 in the Court of Justice of the European Union. The Commission could also offset such criticism with a public information campaign explaining the factual basis for its assessment. 

Reflecting on the potential of the Rule of Law Report based on the UN-UPR precedent

The Report can certainly be viewed as an important political signal of the EU’s clear intent to uphold core values and reinforce the universality of the rule of law. Coupled with more commitments and initiatives, such as the preliminary agreement to tie access to EU funds to respecting the rule of law, the Report seems promising both in terms of monitoring and intervening. 

The extent of the Report’s potential influence can be estimated from an examination of the United Nations Universal Periodic Review (UN-UPR), as the two share some similarities in their scope and structure by replicating “horizontal and country-specific contributions,” and allowing all member states to participate in the process by providing written contributions. 

The experience of the UN-UPR tells us that the prospect of the Rule of Law Report in successfully depoliticizing the rule of law in the EU are meager. Despite the UN-UPR being successful in some specific areas, such as providing valuable insights in child rights monitoring and advocacy, the process has been less successful when it comes to party states with poor human rights records, which often argue being unfairly targeted for criticism. Consistent with this defensive stance, countries will categorically deny violating any human rights, insisting that they guarantee freedoms of religion, speech, assembly, and thought. The responses of Hungary and Poland fall in line with the defensive stance. 

While the Report cannot single-handedly change the rule of law landscape of the EU, nor be seen as a sanction against these two particular countries, it opens regular dialogue with every member state. For that this initiative should be hailed. As pointed out by Didier Reynders, Commissioner for Justice and Consumers, it provides a way to “share good practices and preempt challenges before they become entrenched.” According to the report itself, it provides a “qualitative assessment,” which “presents both challenges and positive aspects, including good practices,” 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.

To conclude, the Rule of Law Report is promising and should be evaluated in light of its aims: preventing problems from emerging or deepening, as well as promoting the rule of law overall. Dialogue is at the heart of its endeavors. With a clear focus on improving the understanding and awareness of issues, ultimately it will help member states find solutions with support from the Commission, other member states, and stakeholders, including the Venice Commission.

Vasiliki Poula is an LL.B. candidate at the London School of Economics & Political Science (LSE). She is also a research assistant at the Diaspora Project of the South East European Studies at Oxford (SEESOX), and a junior researcher at the Hellenic Foundation for European & Foreign Policy (ELIAMEP).

Eponine Howarth is an LL.B. candidate at the London School of Economics & Political Science (LSE). She is also a research assistant at Electoral Psychology Observatory and a data researcher at the United Nations Department of Political and Peacebuilding Affairs.