The EU’s annual Rule of Law Report 2023 was published on 5 July 2023 examining the state of the rule of law in each of the EU’s 27 member states. Joelle Grogan analyses challenges to rule of law reporting in the EU, and suggests areas for improvement for the next report in 2024.
On 5 July 2023, the European Commission published its latest Rule of Law Report, the fourth since it launched in 2020. The report examines the quality of rule of law in each of the 27 EU member states, as well as providing an overview on the state of the rule of law across the EU.
Falling standards of rule of law and state-investment in upholding a rules-based international order are a key concern for the EU. Corruption leads to economic inefficiencies, and the lack of judicial independence can lead to a breakdown in mutual trust between member states – the bedrock of the EU system.
Annual rule of law reporting was introduced as part of a larger package of measures aimed at tackling this breakdown which has been more notably evidenced in Hungary and Poland. Significant concerns in both states relate to media pluralism and the independence of the courts and other key democratic institutions.
In Hungary, for example, 90% of media is reported to be directly or indirectly controlled by the ruling Fidesz party and found to run smear campaigns against perceived political opponents including judges.
Following reforms to the judicial system in Poland, the ruling PiS party can now exercise political control of judicial appointments, removals, and disciplinary proceedings against judges. In one recent example among others, the European Court of Human Rights found on 6 July 2023 that the disciplinary proceedings against Polish Supreme Court Judge, Igor Tuleya, had been ‘aimed at intimidating (or even silencing) him for the views that he had expressed’ against the reforms.
In 2017, Poland was the first member state to be subject to the ‘Article 7 proceedings’ in response to concerns about systemic violations of the rule of law, with Hungary following in 2018. In September 2022, the European Parliament echoed NGOs in downgrading Hungary from a ‘full democracy’ to an ‘electoral autocracy’.
The Commission’s rule of law reporting focuses on ‘four pillars’ of the rule of law: national justice systems; anti-corruption; media pluralism (including press freedom); and other institutional checks-and-balances including how law is made, and the capacity of civil society and independent authorities to provide a check on government.
Since 2022, reporting now includes individual recommendations to each member state. Progress on the recommendations was tracked in the 2023 report, and the Commission headlined that 65% of recommendations have been ‘fully or partially’ addressed since 2022.
The methodology for how progress was assessed is unclear, however, making independent verification challenging. Evaluation is further made difficult where the expected outcome is also unclear from the recommendations: for example, ‘establish […] safeguards to protect journalists, particularly online’ for Slovenia; ‘ensure adequate human resources for the justice system’ for France; and ‘reform the Defamation Act to improve the professional environment for journalists’ for Ireland.
This reveals a key challenge for reporting: taxonomy, or capturing independent metrics for the value of rule of law and good governance that can be independently assessed and verified. States in dialogue with the Commission can describe themselves as rule of law compliant on paper – though are not necessarily so in practice.
Beyond this, the common format of the reports means that there can be a sense of false equivalence between member states: with the same space and broadly the same number of recommendations given to every country, the concerns regarding one with few or minor issues could appear equal to a country with major and systemic rule of law violations.
This said, a common format for rule of law reporting avoids the accusation of an ‘East/West divide’ and bias against ‘newer’ member states primarily located in Central and Eastern Europe, by applying the same reporting standards to all. However, the problem with a report card for the whole class is that it relies on the willingness of each participant to do well if there are no consequences for doing badly.
Finland and Estonia both made either full, significant or some progress on their four 2022 recommendations. By comparison, of the seven recommendations given to Poland, ‘some progress’ was tracked on only one which related to improving how the Ombudsperson operates. No progress had been made on concerns related to corruption, judicial independence, media pluralism or improving the space for civil society.
Of the eight recommendations made to Hungary, two which regarded strengthening the rules related to judicial appointments had been marked as ‘fully implemented’, though the Commission also highlighted that public confidence in judicial independence decreased in 2022. No progress had been tracked on recommendations related to high-level corruption, media independence, and the obstacles faced by civil society.
Failing the commitment to do well, the results are easily ignored or dismissed. Immediately following the release of the 2023 Report, Hungarian government minister, Zoltán Kovács, criticised it as ‘attacking Hungary’ decrying that any negative reporting was because the Hungarian government is not ‘pro-war’ and did not want ‘migrant ghettos’.
For many, annual rule of law reporting fell short of expectations of a robust response to rule of law breakdown, and does little to address the ‘existential threat’ of rule of law backsliding within the EU.
The central criticism is that a bad report does not automatically lead to any consequences for a member state making ‘no progress’. Where reporting was initially pitched as a preventive action against (further) rule of law breakdown – there seems to be little bark and no bite.
But this is to miss the value of the exercise – the function of the report is not to solve systemic rule of law problems. Reporting obliges engagement, bringing together a wide range of stakeholders and highlights common problems where an EU-wide response can be appropriate: the 2023 Report flags, for example, proposals for the European Media Freedom Act and the Anti-Corruption Pact as inspired by findings of previous rule of law reports.
While the ‘rule of law progress tracker’ is problematic, it is also an improvement to the reporting mechanism. For the 2024 report, the Commission should consider developing a clearer taxonomy, incorporating expected outcomes as well as timelines and what ‘progress’ means in practice. Such reporting on deeply problematic states buoys other efforts – for example rule of law conditionality in accessing EU funds – to tackle rule of law backsliding and breakdown.
Additionally, it could adopt a wider approach tying rule of law reporting in with wider EU policy goals – for example as is already done with democracy and sustainability in the newly published Strategic 2023 Strategic Foresight Report – which can also help integrate rule of law into the EU’s wider strategic agenda.
By Dr Joelle Grogan, Senior Researcher, UK in a Changing Europe.
