Statement published by the European Civic Forum on 24/07/2024 – accessible here.
2024 marks the fifth year of the European Commission’s annual Rule of Law Report cycle. Aside from assessing this year’s report, this moment is an opportunity to reflect on the tangible outcomes of these reports and how to address their shortcomings in the future.
At the European Civic Forum (ECF), we feel particularly legitimate to share our analysis as we have extensively contributed to and commented on the Commission reports from the very beginning as an independent partner.
When looking back the last five years, we must consider two questions. First, have we observed an improvement in the rule of law in member states that were already experiencing major breaches when the Commission launched this process in 2019? Second, have the annual reports contributed to significantly halting or slowing down any rule of law deteriorations that have emerged since 2019?
For anyone advocating for the respect of the rule of law and effective access to human rights, both those working in the Commission and externally, the evidence is clear: respect for the rule of law has regressed in many countries, with any progress a rare exception.
In this statement, we outline some gaps in the Rule of Law process and offer some potential remedies.
Respect for the rule of law is strongly linked to equality and cohesion in society
The Commission assesses breaches of the rule of law in areas that cover its core mandate, namely those linked with the proper functioning of the internal market and the management of the EU budget, hence the attention given in the monitoring to corruption and the defence of EU’s financial interests. However, such a narrow scope ignores many breaches that weaken the rule of law, democracy and fundamental rights. This includes violations of freedoms of expression and of peaceful assembly, police violence as well as limitations to social and civil dialogue.
Since the inception of the Rule of Law Report, the ECF has emphasised that ensuring the respect of the rule of law goes hand in hand with building inclusive societies. We have repeatedly pointed out that the rule of law is stronger in countries that pursue cohesive and inclusive policies and weaker in societies characterised by extensive inequalities, precarity and fragmentation. Therefore, by limiting the purpose of the Rule of Law cycle to the sound functioning of the internal market, the Commission is following a misguided approach which is insufficient for making its reports have a real, sustainable impact.
The rule of law requires a comprehensive approach
In her political guidelines for the next European Commission, President von der Leyen pledges to “consolidate the report and ensure it looks at all issues across Europe”. We hope that means transforming the existing report in order to address all threats and challenges that fall under the EU Treaties, in particular guaranteeing the effective access to fundamental rights, for all. The President also commits to ensuring that “civil society is better protected in its work”. To meet this promise, the Commission should provide similar protection for civil society and human rights defenders inside the EU as the one aimed at in the EU External Action Service’s Guidelines for human rights defenders from outside the EU. This protection should cover all categories of rights: labour rights, migrants’ rights, women rights, LGBTQI+ rights, and civil liberties when they are disrespected.
We are concerned that the Council would oppose any extension of the scope of the rule of law monitoring. This would mean a continuation of the current system: that any breaches of the rule of law that do not fall under the EU’s competencies would not be assessed. The status quo, which fails to assess key areas, is not acceptable. Based on our experience of the process’ limitations over the last five years, civic actors are ready to work with the Commission to get a broad, extensive mandate for monitoring of the respect of the rule of law in EU member states in all relevant areas. This monitoring should be conducted in a manner that keeps at bay member states’ influence on the content of the criticism.
An early warning mechanism is crucial for preventing systemic rule of law breaches
Recent alarming trends, such as those emerging in France and Italy, illustrate the need for an early warning mechanism to rule of law monitoring alongside the annual cycle.
As documented in our Civic Space Report, a systemic breach of the rule of law appears to be underway in France. Last December, during the discussion of a legislation on migration in Parliament, we reached a turning point when the French government openly recognised that some provisions it was defending in Parliament go against the French constitution. Its decision to ask the Constitutional Court to redress these breaches in no way mitigates the issue at stake. These breaches come on top of an accelerating deterioration of the respect of the freedom of association and the right to peaceful assembly through administrative decisions. While these have been regularly overturned in the courts, they have been systematically repeated by authorities.[1]
There has also been a concerning increase in restrictions on civil society in Italy, as documented in our recent Civic Space Watch alert. These include the targeting of climate activists, sea-rescue NGOs, and pro-Palestine activists and restrictions on media freedom. In response to our alert, the Commission simply reiterated that it “closely monitors the evolution of the situation affecting the Rule of Law in all Member States, including Italy.” Recent judicial reforms proposed by the Meloni government, including changes to the methods of hiring magistrates, the separation of careers of prosecutors and judges, and the criteria for the composition of the Superior Council of the Magistracy, raises serious concerns about the future of the rule of law and separation of powers in Italy.
These two country examples demonstrate that the Commission’s monitoring tools are not designed to address worrying developments at an early stage. This represents a significant weakness in the process. Moreover, the Commission’s failure to address such obvious signs of deterioration in its report could be considered by the public as politically motivated, undermining the credibility of the whole exercise and weakening the trust in the institutions’ capacity to carry out checks and balances.
The Commission should therefore set up a permanent early warning mechanism. This should lead to a rapid assessment of worrying developments, allowing for timely and concrete reaction at the EU level, such as recommendations and dialogue, ahead of possible sanctions when countries do not take action to improve the situation. The growing influence of far-right on policy making, even when they are not in government, has repeatedly negatively impacted the rule of law. This makes an early intervention mechanism even more urgent. From all perspectives, early intervention is crucial in order to prevent breaches from becoming entrenched.
The Commission must not end proceedings prematurely
So far, European institutions’ measures to address systemic rule of law breaches have primarily focused on cases in Hungary and Poland.
After the October 2023 elections in Poland, the new government’s pledge to restore a robust rule of law framework has provided some hope for reversing a dreadful situation with positive change. However, the Commission’s decision to close its Article 7 proceedings against Poland, stating that “there is no longer a clear risk of a serious breach of the rule of law”[2], was clearly a premature and primarily politically-motivated decision. The Commission should have taken into consideration the ongoing impact of measures introduced by the previous government and the obstacles to overturning them before removing its leverage. At the time of the Commission’s decision, a large part of the institutional instruments detrimental to the rule of law was still in place, and this remains the case today.
Looking forward
In short, the Commission’s current approach is misguided as it fails to acknowledge that strong public policies addressing societal vulnerabilities intersect with and can reinforce the rule of law. This is particularly important as we know that precarity and exclusion is feeding the rise of far-right parties and the growing audience of their narratives against the rule of law, democracy and fundamental rights for all. This is a vicious circle that must be broken.
To develop a comprehensive approach to the rule of law, the Commission must acknowledge that market and economy, social cohesion and democracy are interlinked. They cannot be dealt with separately. Therefore, the Rule of Law cycle should be connected to an economic semester extended in scope, and to the European Pillar of Social Rights follow-up, through the setting-up of a European Democracy Semester.
Finally, the recommendations within the report should be specific, concrete with clear time frames and reflect all thematic areas of the report, and their implementation should be thoroughly assessed. Sanction mechanisms should be combined with positive conditionality initiatives and support for reforms.
[1] We are pleased that this year’s report on France mentions the limits on the right to protest submitted by the ECF and French Ligue des droits de l’Homme (LDH), although it does not contain any recommendations on preserving a safe civic space. However, it is alarming that the report makes no mention of the major breaches connected to the immigration law passed in December, which the Commission was alerted to as early as January.
[2] https://ec.europa.eu/commission/presscorner/detail/nl/ip_24_2461