In 2023, Democracy Reporting International offered a series of recommendations to enhance the scope and methodology of the EU’s annual rule of law report. While some progress has been made, several critical recommendations remain unaddressed. This year, we revisit these key points, emphasising their continued relevance and urging both civil society and the European Commission to take actionable steps towards strengthening the rule of law across the Union.
Thematic recommendations
Examining the impact of the war in Ukraine
Status of Implementation: partial
The war in Ukraine continues to have profound implications for the rule of law within the European Union. While the European Commission has acknowledged the increasing importance of rule of law issues in the context of Russia’s aggression, its focus has largely been external, targeting candidate and potential candidate countries, rather than systematically addressing the effects within the EU itself.
Recommendation: The 2023 rule of law report should take a broader look at the impact of the war in Ukraine on the rule of law, in particular, the situation of refugees from Ukraine in EU and the effect the war has on the rule of law situation in EU Member States.
Assessing the non-implementation of CJEU and ECtHR rulings
Status of Implementation: partial
The ongoing issue of non-implementation of judgments by European courts, particularly the CJEU and ECtHR, remains a critical concern within the EU. However, while the ECtHR’s data has been partially incorporated into the 2023 rule of law report, the systemic non-implementation of CJEU rulings has received far less attention. Furthermore, it does not specifically address the most concerning instances of non-compliance with decisions from either the ECtHR or CJEU in its recommendations.
Recommendation: The 2023 rule of law report should cover the systemic angle of the non-implementation issue and examine in detail the status of non-implementation of key CJEU decisions.
Highlighting the issue of widespread covert surveillance
Status of Implementation: partial
While the Commission has recognised the issue of surveillance of persons directly involved in work on the rule of law, the report does not fully capture the widespread nature of the problem. We believe the scale of the problem is far greater than what the Commission has shown. The effectiveness of safeguards designed to prevent the abuse of surveillance tools – such as spyware – remains unassessed and concerns about inadequate parliamentary inquiries, limited judicial or prosecutorial scrutiny, and attempts by authorities to obstruct independent monitoring bodies are not adequately addressed.
Recommendation: The 2023 rule of law reportshould include an assessment of the issue of surveillance of persons directly involved in work on the rule of law, such as judges, lawyers, journalists and civil society activists.
Methodological recommendations
Factoring informal/contextual issues in the qualitative assessment
Status of Implementation: unimplemented
The Commission’s current approach to evaluating the rule of law in EU Member States has proven insufficient, particularly when it comes to the nuanced, local context – greater scrutiny is needed to trace sufficiency of reforms, but also informal factors that might hinder adequate implementation in practice.
Recommendation: The 2023 rule of law report should: (a) factor specificities of the local context in its proposals and recommendations instead of taking a ‘one size fits all’ approach and (b) flag not only legislative flaws or gaps but also informal practices undermining otherwise adequate legal changes, where possible. In seeking to accomplish that, the Commission could benefit from the involvement of independent national experts.
Developing an Assessment scheme’202f
Status of Implementation: partial
While the Commission has developed a detailed assessment scheme to assess various levels of implementation, the quality of its recommendations still varies. The selection of issues often appears inconsistent, and the level of effort expected from states is often unclear or minimal. Additionally, when states fall short in their efforts, the Commission does not always provide clear guidance on what further steps should be taken to address these shortcomings.
Recommendation: The 2023 rule of law report should develop an approach for assessing the rule of law performance of Member States (including but not limited to compliance with recommendations) capitalising on states’ reputational concerns and thereby enhancing soft power of its reports.
Follow-up recommendations on Substantive Issues
The Commission should:
- systematically address the impact of the Russian war on the rule of law in Europe.’202f
- in addition to incorporating data on the overall record of implementation of the ECtHR judgments, the European Commission should focus on the implementation of key ECtHR and CJEU rulings falling under the four areas covered by the report. The Commission should address non-implementation not only in the analysis but also through issuance of recommendations to the states with particularly alarming overall records of implementation and those with unimplemented rulings on judicial independence and impartiality. ‘202f
- engage a more sober and critical analysis of these practices in its report, with a focus on checks on relevant authorities and an assessment of the effectiveness of monitoring and investigation meant to prevent the abuse of power.’202f’202f’202f’202f
Recommendations on Methodological Issues
The Commission should:
- prioritise central issues over peripheral ones when formulating the recommendations.’202f
- provide clearer recommendations so that states and other actors know what is expected.’202f The Commission should involve independent experts in the preparation of recommendations and the assessment of state progress.’202f
- enhance its scheme for assessing state performance. The Commission should clarify additional actions required when the state fails to fully implement the recommendation. ‘202f
- exercise caution in prematurely and readily accepting “reforms” as positive and instead monitor their implementation in practice.’202f
Overarching concern: Arbitrariness and Overreach by the Executive
We want to highlight the issue of executive overreach and arbitrary actions in EU Member States as part of this year’s stakeholder consultation. During the peak of the COVID-19 pandemic, governments across Europe expanded executive powers, and many have continued using emergency measures for this and other crises. This raises concerns about the reasoning and goals behind such actions. When combined with weakened judicial oversight and an increasing disregard for both domestic and international courts, these practices lead to unchecked executive power. This trend is especially harmful to the rule of law, particularly when governments openly resist the judiciary and challenge the authority of the CJEU and ECtHR.
Examples
Judiciary
There are four types of problematic scenarios in which the governments seek to weaken judicial checks:
- Introducing/maintaining institutional arrangements undermining judicial or prosecutorial independence
- Reinforcing formal guarantees of judicial or prosecutorial independence by delaying reforms
- Inadequacy or insufficiency of reforms leave room for political meddling with judicial governance and/or judicial decision-making
- Even where reforms are adequate on paper, judicial independence can still be endangered through informal practices, especially where the political culture is not based on respect for this value.
The Commission should closely monitor reform efforts to spot those that are superficial, incomplete, or only partially implemented. It’s also essential to examine how even seemingly well-designed reforms are carried out in practice before making any final judgments about their effectiveness.
In Slovakia, Prime Minister Fico’s government sought to fast-track changes in criminal law to scrap a special prosecutor’s office investigating corruption. France and Germany, on the other hand, represent examples of delays in the reinforcement of formal guarantees of prosecutorial independence, even though lack of such guarantees does not necessarily lead to politicised prosecutions or shielding from prosecution.
Hungary’s situation highlights the dangers of a judicial governance system where a political appointee, such as the President of the National Office of the Judiciary, controls judicial careers while the National Judicial Council (NJC), a body of judges elected by their peers, is marginalised – politicised appointment of the Supreme Court president also created threats to judicial independence. Recent reforms seemingly address some of these concerns, but the remaining gaps endanger their effectiveness. Recent Hungarian legislation prohibits the re-election of the Supreme Court (Kúria) president, but the current rules still allow the president to remain in office indefinitely, as a parliamentary minority can easily block the election of a successor. Although the reform has strengthened the National Judicial Council (NJC), obstacles remain that limit its ability to fully exercise its powers. While the NJC was previously weak to be a target for political capture, its newly reinforced role increases the risk of such interference. In October 2023, the Hungarian Helsinki Committee reported both internal and external pressures on the NJC’s member election process for the next six-year term. These include public statements from the minister aimed at discrediting current NJC members and discouraging them from seeking re-election, as well as reports of breaches in the secrecy of the voting process.
In Poland, the government has continued to exploit politically influenced judicial bodies, such as the National Council of the Judiciary, the Constitutional Tribunal, and parts of the Supreme Court, following patterns seen in previous years. A significant development was the December 2023 judgment by the Constitutional Tribunal, which aligned with a request from the Prosecutor General (who is also the Minister of Justice). The Tribunal ruled that financial penalties imposed for non-compliance with CJEU interim orders – such as those in case C-204/21 Commission v Poland (regarding the Disciplinary Chamber and the so-called “muzzle law”) and case C-121/21 Czech Republic v Poland (concerning the Turów coal mine) – are incompatible with the Polish Constitution.
Corruption
In several EU Member States, anti-corruption efforts are unevenly applied, often focusing on lower- and mid-level officials while neglecting proper oversight of high-ranking authorities. This is particularly evident in countries like Hungary and Malta, where highest ranking officials and their family members often avoid thorough scrutiny for potential corruption. In some cases, governments are seen as pressuring the courts to influence court proceedings in corruption cases like in Hungary, or leveraging politically influenced elements of the judiciary to ensure cases are handled by judges favorable to the government, as in Poland.
Media pluralism
In 2022, government overreach and arbitrary actions in the realm of media pluralism became evident in several EU Member States. In Hungary and Poland, authorities frequently denied journalist accreditations or excluded critical media outlets from covering official press events. In Slovakia, the new Prime Minister declined to grant interviews to four major media outlets, while in Czechia, an exiled Russian journalist was denied accreditation during a meeting between the Czech and Ukrainian presidents. In countries where state-owned media promote government-friendly messaging, regulatory bodies have disproportionately targeted private media outlets with fines for their content, while ignoring similar complaints about state-owned channels.
Other issues
The constitutional reform proposals put forward by the Italian government in November 2023 require close attention from the Commission. The cabinet proposals include the direct election of the Prime Minister – a highly unusual constitutional arrangement – and a guaranteed parliamentary majority for the Prime Minister, achieved through a seat bonus of 55% in both houses. This system would allow a party with just 20% of the vote to secure a commanding majority of seats, provided no other party receives more votes. Under the current system, parliamentary elections determine the government’s composition, yet, with these changes, “prime ministerial elections” would effectively shape the composition of parliament, concentrating significant power in the hands of the Prime Minister. This shift risks undermining constitutional checks and balances and weakening parliament’s role. The system has no precedent or parallel in constitutional practice, while the Prime Minister would gain legitimacy similar to that of Presidents in presidential systems, the proposed system lacks the counterbalancing checks that such systems typically provide, such as a directly elected and independent parliament.This unprecedented constitutional arrangement could have serious implications for the rule of law, and it is vital that the Commission addresses this challenge in its report and through other mechanisms.
Another concerning development is the Hungarian government’s increasing reliance on emergency decrees to govern. Since 2020, the government has been using decrees, enabled by declaring a state of danger, most recently due to the war in Ukraine. On 26 November 2023, the government extended this state of danger for another six months. This extension allows the government to bypass parliamentary debates and rule without oversight, evading any parliamentary control. While the outcome of the parliamentary process may have been the same, given the government’s two-thirds majority, governing through decrees removes any accountability, as decisions are made without justification or transparency and many of these decrees appear to have little connection to the war in Ukraine..
Recommendation: The Commission should look at the risks of executive overreach and any initiative meant to weaken the checks systematically and consistently across the areas covered by the report and tackle such initiatives through recommendations.
Democracy Reporting International (DRI) works to improve public understanding of the rule of law in the EU as part of the re:constitution programme funded by Stiftung Mercator. Sign up for DRI’s newsletter and follow us on Facebook and Twitter to find out more about the rule of law in Europe.
