5 November 2020
On 30 September the European Commission unveiled its Rule of Law Report, its first rule of law audit of all EU member states. The report is a part of the comprehensive European Rule of Law Mechanism announced in the Political Guidelines of the President of the European Commission Ursula von der Leyen. The Rule of Law Report consists of a general report and 27 country chapters presenting the Member State-specific assessments. The work focused on four main pillars: the justice system, the anti-corruption framework, media pluralism, and other institutional checks and balances. Whereas all of these areas are crucial for efficient environmental democracy, protecting rule of law in the justice systems of Member States goes to the core of access to justice in environmental matters.
The rule of law is enshrined in Article 2 of the Treaty on European Union as one of the common values for all Member States. The Rule of Law Report is intended to be a new preventive feature of the EU’s rule of law toolbox.
This toolbox already consists of several monitoring mechanisms like the European semester (a monitoring tool, which provides a framework for co-ordination of national economic policies) and the “justice scoreboard”(which provides comparable data on the independence, quality, and efficiency of Member States’ justice systems). It also contains tools for intervention like rule of law framework (within which the Commission can investigate threats to the rule of law and recommend policy changes), infringement procedures against a Member States (when a national law violates EU law) and finally a procedure under Article 7 TEU when there is a clear risk of a serious breach of EU values. Another, and potentially more effective, tool would be the budget conditionality mechanism proposed by the Commission in 2018 to tie Member State access to EU funds to meeting certain rule of law criteria. However, the proposal never made it through the legislative process and is currently subject to fierce political debate among the EU institutions in the context of the adoption of the European Multiannual Financial Framework and the Covid Recovery Fund.
Despite several monitoring tools already in place, the Rule of Law Report is quite unique due to its scope and methodology. First, it is the first tool with such a wide scope of investigation, covering the four main pillars of rule of law, not only the most obvious ones like judicial independence, but also those that are less obviously related (but no less crucial) like media pluralism or free and active civil society.
Furthermore, the Rule of Law Report is being created not only through horizontal and country-specific contributions, allowing Member States to participate in the process by providing written contributions and through the organization of dedicated virtual country visits. The process also included input from more than 200 stakeholders, including independent experts, a variety of EU agencies, European networks, national, European civil society organisations and professional associations and international and European actors. The report is the result of months of consultations with Member States, both at the political level in the Council and through political and technical bilateral meetings, from a variety of sources. Prior to the adoption of the Report, Member States were also given the opportunity to provide factual updates on their country chapters. The methodology also recalls the EU law provisions relevant for the assessment for each pillar, including the case-law of the CJEU, and refers to opinions and recommendations from the Council of Europe, which provide useful guidance.
The Report 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. This has helped overcome obstacles faced in other monitoring tools, like reluctance of Member States to collect or share required data. 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.
Unsurprisingly, Poland and Hungary came in for the toughest criticism as two countries with ongoing procedures under Article 7 TEU. The major concerns relate to the resilience of the justice system in terms of access to an independent court and judicial review, particularly the recent justice reforms in these regarding, inter alia, the appointment of members of the Supreme Court and the Constitutional Court or disciplinary cases concerning judges. The Report also voiced concerns about corruption and the independence of the judiciary in Bulgaria, Croatia, the Czech Republic, Hungary, Malta, Romania and Slovakia. Of those countries, all but Malta are former members of the communist bloc. But even countries with longer histories of democracy came in for some criticism: Austria, for example, was cited for a lack of rules on how its government allocates its relatively high levels of state advertising to private media outlets.
The Report also points out some key elements of particular importance for the rule of law, such as the process for preparing and enacting laws, in particular as regards stakeholders’ involvement, the use of fast-track and emergency procedures, and the regime for the constitutional review of laws. In all Member States, the normal legislative process gives supremacy to Parliament as legislator. However, fast-track legislative processes and absence of consultation are common features of rule of law crises. In a few Member States, mainly in Poland, repeated recourse to fast-track legislation in Parliament or emergency ordinances from the government has given rise to concerns, particularly when applied in the context of broad reforms affecting fundamental rights or the functioning of key State organs such as the judicial system or the Constitutional Court.
The Report also noted that civil society organisations operate in an unstable environment throughout the EU, but continue to be strong actors in defending the rule of law. In some Member States, however, there have been examples of civil society facing serious challenges in terms of new legislations limiting access to foreign funding (Bulgaria and Hungary) or smear campaigns (Poland).
The Report describes not only shortcomings, but also positive rule of law development to share and promote good practices among Member States.
The long-awaited Report received mixed feedback among commentators. It has been criticized as providing overly simplistic analysis of topics that are complex and interconnected. For others it is too little too late, since rule of law deficiencies in some Member States have already gone too far to be prevented by simply mapping and identifying threats and legal problems. In this regard, it has been also pointed out that the Report not only does not provide any sanctions, but it even lacks recommendations.
Nevertheless, the Report has been welcomed as a holistic monitoring initiative and a complementary tool in the EU toolbox. The Report provides a unified and precise definition of the rule of law, stating for the first time that while Member States have different national identities, legal systems and traditions, the core meaning of the rule of law is the same across the EU. It defines the rule of law in the following terms: “Under the rule of law all public powers always act within the constraints set out by law, in accordance with the values of democracy and fundamental rights, and under the control of independent and impartial courts”. These achievements might be seen as a milestone and a good starting point for future assessments and actions taken by the Commission. So, while the role of the Report is currently unclear, it clearly has potential to offer the basis for well-designed and substantiated intervention and problem-solving. Therefore, it must be seen in this perspective – as a useful tool among other tools, not as a gamechanger in the rule of law landscape.
Access to Justice is a fundamental means through which citizens and NGOs can support the implementation and enforcement of laws and policies to protect the environment. The goal of this ATOJ-EARL project is to achieve “Access to Justice for a Greener Europe”. It strives to enhance access to justice in environmental matters by providing information, training and support for the judiciary, public authorities and lawyers of eight European member states. ClientEarth and Justice and Environment are implementing this project with the financial support of the European Commission’s LIFE instrument.