Assessing the Commission’s 2020 Rule of Law report

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This article is brought to you in association with the European Parliament.

MEPs take stock of developments and propose ways to improve the EC’s approach moving forward, with an eye set on the upcoming 2021 report on the rule of law in the EU.

The Civil Liberties Committee approved the own-initiative report by Domènec Ruiz Devesa (S&D, ES) on the Commission’s 2020 Rule of Law report on Thursday with 49 votes for, 10 against and 4 abstentions. It highlights areas for improvement, and sets out Parliaments priorities and concerns in protecting EU values.

Lessons from 2020

MEPs regret that the 2020 report fails to encompass fully Article 2 values, and that the Commission did not consult stakeholders, including Parliament, on the development of its methodology. Reiterating the call for a permanent, comprehensive mechanism, they highlight that including clear recommendations in future reports is indispensable, as it should serve as a basis for deciding whether to activate one or several relevant instruments – such as the Article 7 procedure, the budget conditionality mechanism, the Rule of Law Framework, or infringement procedures.

The text reiterates the importance of identifying risks in advance and calls on the Commission to focus on analysing the situation, instead of merely describing violations, for example through:

  • deeper country-specific chapters with recommendations, potentially including deadlines and benchmarks;
  • differentiated reporting to distinguish between systemic and individual, disconnected breaches of rule of law;
  • an expanded scope and the inclusion of important elements from the Venice Commission’s 2016 Rule of Law Checklist;
  • a more integrated analysis on the interlinkages between the four pillars of the report, and of how combined deficiencies may amount to systemic (risks of) breaches; and
  • the identification of cross-cutting trends at Union level, when certain measures or practices may be replicated, or when their gravity and scope may affect the Union as a whole.

Judicial independence and the primacy of EU Law

The text refers to “the stark deterioration” of judicial independence in some member states and the increasing “open lack of compliance with EU law, including judgments of the Court of Justice”. Concerned by the Commission’s “failure to promptly and legally react”, it calls on the Commission to designate such instances “a clear risk of a serious breach of the rule of law”. MEPs decry “the political pressure in Hungary and Poland […] to avoid national judges asking questions to the CJEU”, in contravention of the Treaties. They urge the Commission to include in future reports data on member states’ compliance with CJEU rulings, and to respond appropriately, for example through infringement proceedings.

Corruption, freedom of expression, and checks & balances

Highlighting that corruption undermines the rule of law, public trust, fundamental rights, and the Union’s legal order and that better tools are needed, MEPs note that an assessment of the anti-corruption framework in public procurement remains largely absent from the 2020 report. They welcome the inclusion of a specific chapter on media freedom, but deplore the lack of assessment of the independence of public and private media, and warn against the deteriorating situation and attacks against journalists. MEPs are alarmed by Covid-19 emergency measures being used as a pretext to fast-track discriminatory legislation, and call on the Commission to continue its monitoring to establish whether measures are necessary, proportional (including socially equitable) and temporary. They are deeply concerned by recent attempts in Poland to undermine the independence of the national Ombudsman, and regret the non-implementation of a CJEU ruling in Hungary in relation to restrictions imposed on the financing of civil organisations, urging the Commission to refer Hungary to the CJEU and request dissuasive financial sanctions.

Next steps

The report is expected to be tabled in the June II plenary (23-24 June) so that it can be adopted prior to the Commission’s release of its 2021 Rule of Law Report.

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