(Please click here to read a French translation)
On 5 July 2023, the European Commission published its fourth annual report reviewing the Rule of Law infrastructure and developments in 27 Member States in 2022. It assessed how recommendations from last year’s report were taken into consideration and issued an updated set of recommendations based on its current analysis of issues to be addressed by each Member State.
The European Civic Forum provided a substantial contribution to the Commission’s stakeholder consultation organised at the beginning of the year. We believe it is important to support this key mechanism by raising concerns about rule of law issues in connection with challenges to democracy and access to fundamental rights in the EU.
With the following comments, we aim to provide constructive proposals towards desirable and achievable progress.
A proper approach to Rule of Law, but too limited in scope
The Commission defines the areas covered by its Rule of Law report and the scope for its recommendations on the basis of its institutional mandate. It is therefore restricted to four pillars: justice, anti-corruption, media freedom and pluralism, and broader institutional issues related to checks and balances. According to the Commission, the report exists to “protect the EU budget where breaches of the rule of law affect or seriously risk affecting its sound financial management or the EU’s financial interests.” This limits the respect of the rule of law to almost the sole purpose of guaranteeing well functioning markets.
As important as they are, the Commission’s four areas of analysis fall short of assessing all of the issues relevant to a functioning rule of law, in particular areas which enable the implementation of all of the values and objectives as expressed in the EU Treaty.
A functioning rule of law is a framework that ensures our democracies deliver effective access to rights for all and that as a result our societies are fully inclusive. We are therefore concerned that the rule of law assessment is not integrated into the Commission’s wider frameworks for democracy, fundamental rights, social justice and equality. As a result of this partial approach, the rule of law report largely fails to capture and contextualise the root causes as well as the full impact of the disrespect of the rule of law.
This is particularly visible for instance when countries introduce discriminatory laws that restrict access to basic rights like health care for undocumented migrants or education for their children, which appears irrelevant for the report as it receives no coverage.
In another example, the report fails to consider disproportionate violence by police against non-violent demonstrators or police brutality and even lethal force used mostly against racialised communities, despite evidence from the ground and the reactions of international institutions.
The Commission recognises CSOs’ contribution to society, but fails to comprehensively link this to its rule of law analysis
The Commission report acknowledges the roles of civil society organisations in our societies.
Firstly, CSOs mobilise when rights and the rule of law are under attack, fighting democratic backsliding. The report fully recognises this contribution to strengthening the rule of law.
Secondly, CSOs contribute to society’s needs through their day-to-day activities: delivering services, providing institutions with evidence, alerting them to concerning developments and calling on them to adopt and implement policies that deliver effective access to fundamental rights for all. In doing so, they provide democratic channels for people’s participation. These activities are not considered as a direct contribution to the strengthening of the rule of law.
We urge the Commission to consistently recognise the full contribution that CSOs make to the rule of law, including in their day-to-day activities and not only their watchdog role when the rule of law is directly under threat.
This is crucial because people support and participate in democracy when its processes deliver policies which address their needs. Conversely, when they feel unheard, people disregard democracy and even seek alternatives. When people’s rights and the common good is not central to policy making, the rule of law does not function for people.
The Commission’s method for assessing progress on recommendations is flawed
For the second year, the Commission’s report made recommendations to member states. And for the first time, this year’s report also follows-up on the implementation of previous recommendations.
The report states that significant progress or full implementation was assessed in just over a quarter of recommendations, while “some” progress is noted in about 40 percent of the recommendations, and no progress has been made with the remainder. Most of this analysis relies on the number of legal acts passed.
We are concerned about the criteria used by the Commission to assess progress. Partial reforms in themselves cannot be considered progress if they don’t substantially improve the functioning of the rule of law. Progress should be assessed not only on the number of adopted legislation (inputs), but by its visible and measurable impact (outputs) that results in real change in practice and a functioning rule of law.
Tackling rule of law issues in silos is not sufficient
From experience, when a breach in the rule of law appears, it often spreads across the overall ecosystem. This can lead to a snowball effect on democracy in the broader sense. Future country reports should take this into consideration.
Recommendations, if not comprehensive and properly enforced, are toothless
Furthermore, the Commission’s follow-up to the previous year’s recommendations is inadequate as unmet recommendations are simply repeated from one year to another. This raises questions about the effectiveness of its approach as it sends a message to member states that if recommendations are not followed, there will be no real consequences.
Furthermore, we once again note that too often recommendations are neither concrete nor specific. More timely, concrete and comprehensive recommendations could significantly strengthen the overall process.
The weaknesses of the recommendations undermines the entire process and the Commission should explore ways for its follow-up on recommendations to be effective.
The reporting cycle of Rule of Law process must not delay action for emerging issues
Let us share a final concern: the Commission’s reactiveness to issues that emerge outside the rule of law reporting cycle. As documented in our monitoring, repeatedly there are developments in member states which warrant immediate attention and action. One example is the case of France with an undue surge of dissolution and defunding of several associations as a consequence of the so-called Separatism law. Although civil society has raised their concerns in real-time, this has not been met with timely action. This example showcases how when emerging concerns are not addressed at an early stage, the situation can further deteriorate.
We propose that the Commission create a fast-track process so that there is an opportunity to publicly raise concerns and make early recommendations.
ECF, in coordination with its national members and partners, will provide a more comprehensive analysis and commentary on specific issues, including on the contents of country reports.