The new European Commission's Rule of Law Report cannot be expected to deter those deliberately seeking or already engaged in the systemic dismantlement of national checks and balances. Unless these shortcomings are remedied, the new yearly monitoring exercise will create more problems than it will solve.
This expert commentary is part of our dossier on the Rule of Law in the EU.
The European Commission’s 2020 Rule of Law Report is the first edition of the latest addition to the EU’s rule of law toolbox. Announced in July 2019, it represents the main outcome of the new annual Rule of Law Review Cycle led by the European Commission. The key aim of this new monitoring cycle is to help the EU develop “a stronger awareness and understanding of developments in the individual Member States” so as to “facilitate cooperation and dialogue in order to prevent problems from reaching the point where a formal response is required”.
This expert commentary will first briefly situate this new reporting mechanism within the broader EU’s rule of law toolbox. It will then briefly highlight its positives before outlining a number of serious shortcomings.
Two main submissions are made: firstly, due to the shortcomings highlighted below, the new Rule of Law Report cannot be expected to deter those deliberately seeking or already engaged in the systemic dismantlement of national checks and balances; secondly, unless these shortcomings are remedied, the new yearly monitoring exercise will create more problems than it will solve.
1. The Latest Addition to the EU’s rule of law toolbox
Increasing awareness of “rule of law backsliding” has resulted in the rapid evolution of the EU’s rule of law toolbox since 2012, when the European Commission first acknowledged a new type of threat to the rule of law, most notably in Orbán’s Hungary. In addition to the European Commission launching a new Justice Scoreboard in 2013 and a new Rule of Law Framework in 2014, the Council launched its own Annual Rule of Law Dialogue in 2014.
Furthermore, tools designed in the pre-backsliding era have been used for the first time against Hungary and Poland (Article 7(1) TEU) or reinvented (e.g. the European Semester). The Court of Justice was also finally able to intervene in February 2018, ruling that Article 19(1) TEU, whereby “Member States shall provide remedies sufficient to ensure effective legal protection in the fields covered by Union law,” places an obligation on Member States to maintain their courts’ independence. This, in turn, prompted the European Commission to finally start using the infringement procedure laid down in Article 258 TFEU to enforce this obligation and protect judicial independence the same year in respect of certain Polish alleged “judicial reforms”.
The idea of Rule of Law Report, consisting of 27 country reports and a transversal report, is the latest addition to the EU’s rule of law toolbox. It was introduced by the outgoing Juncker Commission, seemingly to respond to the long-standing but increasingly frequent accusations from Hungarian authorities that the European Commission applies “double standards” in assessing Member States.
As deployed by the current European Commission, the Rule of Law Report has been (re)interpreted as “a new preventive mechanism” aiming to fill “an important gap, because we were missing a tool that would allow [us] to identify problems at the early stage”. However, both the Rule of Law Framework (the “pre-Article 7 procedure”) and Article 7(1) TEU were existing preventive mechanisms; arguably, therefore, there was no preventive gap to fill. Furthermore, the Rule of Law Report is not a preventive tool, being an after-the-event reporting tool. What is new is its permanent nature and scope with all Member States covered. It is, however, arguably not unprecedented, as the European Commission formerly published a bi-annual EU Anti-Corruption Report, which was unceremoniously dropped in 2017.
2. Positive Features
The Rule of Law Report may be commended for its clear outline of why the rule of law matters legally, but also politically and economically, internally and externally. It is also based on a compelling definition of the rule of law codifying the key legal principles laid down in the EU Treaties, EU secondary legislation and the case-law of the Court of Justice. It furthermore correctly states that “[w]hile Member States have different national identities, legal systems and traditions, the core meaning of the rule of law is the same across the EU”, countering Hungarian and Polish authorities’ ludicrous argument that they cannot be violating the rule of law because, they claim, the rule of law is not and cannot be clearly defined in EU law.
The “four pillars” selected by the European Commission may be similarly welcome. Indeed, the justice system, the anti-corruption framework, media pluralism and other institutional checks and balances are correctly understood as “key interdependent pillars for ensuring the rule of law”.
By forcing a pan-European discussion on ongoing violations, problematical developments and best practices, the new Rule of Law Report may help ensure that the rule of law becomes a salient issue which is debated more regularly at national and European levels. The European Commission’s laudable aim to summarise all relevant information about the four “pillars” in a single country document accompanied by a transversal analysis may well have a long-term positive crystallising effect. It could particularly help to promote a rule of law culture. In the short term, however, several serious shortcomings are inescapable.
3. Negative features
For the EU Rule of Law Report to avoid the fate of the EU Anti-Corruption Report, the European Commission should aim to remedy the following shortcomings in the second edition.
To begin with, simply publishing an annual report will not help contain and address rule of law backsliding in countries such as Hungary and Poland. Indeed, an annual reporting cycle will not, in and of itself, help prevent deliberate/systemic violations of the rule of law or deter legal hooligans, as the Report is a mere after-the-event reporting mechanism making no concrete recommendations. After all, there have been 13 years of reports regarding the rule of law situation in Bulgaria and Romania and nobody would seriously claim that the “cooperation and verification” monitoring mechanism made any difference. Worse, in Bulgaria, the exercise was used, at times, to whitewash inconvenient developments.
It would therefore be best not to “oversell” this latest rule of law tool, as this would only lead to pro-rule of law constituencies feeling “cheated” and questioning the European Commission’s competence once it becomes clear that as currently designed, the reports are just paper tigers with flaws that benefit those undermining the rule of law.
Professor Kelemen notes that by deploying “a language of euphemisms and understatement”, the set of reports has furthermore created a serious risk of normalising evident violations of the rule of law. One example of this is the use of the word “reform” in Poland’s country report. How can “reforms” be used to describe sustained, deliberate and unconstitutional attacks on the principle of judicial independence? This 1984-esque language is difficult to comprehend when the Court of Justice has already established twice that some of these “reforms” flagrantly violate EU rule of law requirements and the European Commission itself correctly established in 2019 that the common pattern of all pseudo “reforms”, adopted in open and repeated violation of the national constitution, “is that the executive and legislative powers now can interfere throughout the entire structure and output of the justice system”. It also beggars belief to express “concerns” over Orbán’s Supreme Court decision to declare unlawful a request for a preliminary ruling to the European Court of Justice to avoid having to comply with EU rule of law requirements. This is a straightforward violation of EU law, so why not say so instead of hiding behind the lame expression of “concerns”?
Denial of reality
Similarly, the Rule of Law Report also suffers from an occasional manifest disconnection from reality, which seems to derive from President von der Leyen’s alternative reality in which no backsliding is happening. To give a single example, the transversal Rule of Law report states that we are in a situation “where the resilience of rule of law safeguards is being tested and where shortcomings become more evident.” Meanwhile, what we are seeing in the real world is certain national authorities systematically undermining the core values on which the EU is based, resulting in “the destruction of judicial independence.”
Denial of autocratic reality
The current European Commission appears unwilling to accept the autocratic reality in countries such as Hungary and Poland. This denial of the autocratic reality is all the more surprising considering that European Commissioners Vera Jourová and Didier Reynders have themselves be rightly outspoken regarding, for instance, the situation in Poland speaking earlier this year of a case of “carpet bombing” of the courts.
It is to be hoped that the second edition of the Rule of Law Report makes clear that not all rule of law shortcomings and violations are of the same nature and/or intensity. If assaults on the rule of law are persistent and pervasive enough, a country may cease to be a democracy in good standing, as indeed expert reports outside the EU have already determined of Hungary and are warning of Poland. Only the 2020 EU Rule of Law Report seems unaware of the extent of the destruction to constitutional democracy already caused in these countries.
Indeed, attacks on and violations of the rule of law have been deliberate, widespread and systemic in nature in the case of Hungary and Poland. Yet the 2020 Rule of Law Report fails to acknowledge the reality: a deliberate, calculated long-term blueprint to annihilate all checks and balances. This denial of autocratic reality is not, however, unique, as the European Commission’s enlargement reports suffer from the same flaw. Be that as it may, we have ended up with a reporting exercise which, as Daniel Hegedüs points out, diminishes the reality of the authoritarian entrenchment in at least two EU countries.
One possible explanation is that the European Commission cannot publicly admit the depressing reality of the ongoing autocratisation in countries such as Hungary, leading to the destruction of media pluralism and a public sphere controlled by the ruling party, as doing so would render its call for dialogue particularly hollow. Indeed, as many experts have noted, dialogue is the autocrat’s best friend, as autocrats “have learned they can beat the EU by creating new facts on the ground despite the ongoing ‘dialogue’.” Calling for more dialogue with autocrats in the hope of preventing rule of law backsliding is akin to singing to make it rain.
Failure to see the wood for the trees
As currently drafted, the transversal report and country reports do not track each Member State’s adherence to the rule of law (or lack thereof) over a sufficiently long period to show the deliberate and devastating patterns, while also failing to connect the dots between the developments observed. In other words, the new Rule of Law Report does not clarify the countries’ direction of travel or the severity and deliberate nature of the multifaceted process of autocratisation. This flaw is not unique to the Rule of Law Report since the European Commission is simply reproducing the problematical approach it has adopted in relation to its enlargement reports where “the details drown out the big picture … obscuring the real picture by offering too much detail and too little clarity.”
This blindness to the multifaceted and interconnected nature of the autocrats’ playbook is all the more surprising considering the public declarations of European Commissioners Jourová and Reynders, who rightly pointed out that it is particularly important to understand the systemic nature of the problems in some countries and “see the links” between the different issues raised in the reports, “because problems often merge into an undrinkable cocktail.” Yet the transversal report does not use the adjective “systemic” once.
While it would appear at first sight useful to review the rule of law situation in all countries in the name of avoiding double standards, the Rule of Law Report unintentionally ends up not comparing oranges with apples, but comparing organic oranges with poisonous mushrooms. In other words, one cannot compare the rule of law record of democracies with that of hybrid, non-democratic regimes such as Orbán’s Hungary, especially when, as noted above, there is no holistic approach to assess a country’s rule of law record over time.
As observed by Professor Bárd, by failing to make clear “how authoritarian regimes are qualitatively different from resilient democracies”, the annual report cycle risks normalising the abnormal; facilitating whataboutism and praising features (e.g. the adequate funding of a captured Media Authority) which only serve to consolidate autocracy in practice. It is particularly irresponsible to claim, for instance, that “nobody’s perfect” when it comes to the rule of law, as this rhetoric only ends up normalising the systemic, deliberate and deceitful annihilation of checks and balances in both Poland and Hungary.
At the very least, the transversal rule of law report should deal separately with countries under ongoing Article 7 proceedings to illustrate how the rule of law has been structurally undermined to facilitate the consolidation of a de facto one-party state regime. Instead, the Hungary country report makes virtually no reference to the ongoing Article 7 procedure.
Be that as it may, one can understand why the European Commission felt the need to answer the “double standard” claim recurrently used by Orbán and Kaczyński that one should only treat like cases alike. But, to put it more colourfully, there is no double standard when one treats fraudsters differently from law-abiding citizens. The European Commission should therefore avoid treating similarly a non-democracy and a democracy or a country on an autocratisation path and one which is not. Quantitative differences that are getting larger and more persistent over time at some point become qualitative differences. By failing to avoid this pitfall, we end up with a set of reports which, no matter how detailed and well intentioned they are, fail to provide a clear and correct big picture.
Opportunity costs and distracting effect
The production of 28 rule of law reports was no doubt a resource-intensive exercise and the “efforts of the [European] Commission civil servants (…) are laudable.” This reporting exercise appears, however, to have cannibalised the focus, energy and limited resources of the European Commission, with very little done towards enforcing EU rule of law requirements.
One might struggle to understand, for instance, why there has not been a single infringement action against Orbán’s “judicial reforms” since his successful purge of the senior echelons of the Hungarian judiciary in 2012. And while the new European Commission has repeatedly promised a “no-compromise” approach to the rule of law, facts paint a different picture, with only one new rule of law infringement action launched to date in respect of Kaczyński’s “muzzle law”, the most blatant violation of the most fundamental legal principles underlying the EU legal order I have ever seen. Adding insult to injury, the European Commission’s infringement action is yet to reach the European Court of Justice, over eleven months after the muzzle law was adopted, while the European Commission has also failed to promptly react to the open violation of the Court of Justice’s order of 8 April 2020 regarding Poland’s “Disciplinary Chamber”. And while we finally saw a reaction on 3 December 2020, the European Commission went for the least effective course of action available to it by deciding to send an additional letter of formal notice regarding the continued functioning of the “Disciplinary Chamber” instead of immediately returning to the Court of Justice to ask it to extent the scope of the interim measures previously granted and/or impose a daily penalty payment on Polish authorities until they fully comply with the order of April 2020. This means more time for these authorities to suspend and sanction more judges in flagrant violation of EU law.
This lack of any sense of urgency contrasts sharply with the infringement action launched by Frans Timmermans under the previous European Commission over the attempted purge of Poland’s Supreme Court: launched on 2 July 2018 regarding a law which entered into force on 3 April 2018, it was referred to the Court of Justice on 24 September 2018.
The problem of the Guardian of the Treaties being reluctant to guard the Treaties is not, however, new. Indeed, the European Commission has referred just eight Article 2 TEU-related infringement actions against Hungary to the Court of Justice in ten years. Furthermore, only five judgments have been issued to date (C-286/12; C-288/12; C-718/17; C-66/18; C-78/18). Looking beyond Hungary, in 2019, there was only one infringement case to defend judicial independence (now pending Case C-791/19) out of 797 new infringement procedures against EU countries. And we are also waiting for the European Commission to react to the decision of Poland’s “Disciplinary Chamber” to unlawfully void the Court of Justice’s judgment of 19 November 2019 last September. One can only imagine what the situation would be if the European Commission had not agreed in 2019 to adopt a new “strategic approach to infringement proceedings related to the rule of law”.
The disenchanted diagnosis of Daniel Hegedüs that “the European Commission has managed to fall into every single trap that had been flagged to it in advance” appears, sadly, warranted.
While well-intentioned, the new Rule of Law Report has, for now, primarily resulted in autocrats a new excuse to say: “look, there are rule of law problems everywhere…” And while we are discussing reports or, worse, placating autocrats, the EU legal order is slowing disintegrating with, for instance, Polish judges being punished, threatened with jail, for upholding the rule of law. And Orbán and Kaczyński have been emboldened to use their veto on matters requiring unanimity in order to weaken any new instruments that may be used to halt their slides into autocracy.
Writing in 2019, several experts, including this author, advised against a revamping of the EU’s rule of law toolbox “so as not to distract the [European] Commission from what should be its immediate priorities”: enforcement, enforcement and enforcement.