Niels Kirst (Assistant Professor of European Law, DCU)
“Regrettably, concerns remain in several Member States. More work needs to be done to improve the independence of judiciary, impartiality of public service media and the safety of journalists.” – Věra Jourová, Vice-President for Values and Transparency at the 2023 Rule of Law Report Press Conference (5 July 2023)
The European Commission (Commission) has recently published its fourth annual Rule of Law Report, which assesses the state of the rule of law in each Member State (see media coverage here, here and here). The Rule of Law Report is a soft-law instrument introduced by the Commission in 2020 as part of the Rule of Law Mechanism to objectively map the state of the rule of law in all 27 Member States. In the past years, the report has been criticised for its flawed methodology, selectivity, and lack of bindingness (see here, here, and here). This year’s report presents some improvements.
For the first time, this year’s report assesses the recommendations given to each Member State last year and evaluates the progress made. This is an improvement, and the Commission should have done this from the start. This year’s report highlights significant progress in addressing last year’s recommendations, with 65% being partially or fully implemented. However, this high number should be taken with a grain of salt as there was only significant progress on 25% of the recommendations, some progress on 40%, and no progress on the remainder.
The report focuses on four key areas: national justice systems, anti-corruption frameworks, media freedom and media pluralism, and institutional checks and balances.
Concerning justice systems, many Member States have made notable strides in enhancing judicial independence, refining appointment procedures, and improving the functioning of their highest courts. Efforts have also been made to enhance the efficiency, quality, and accessibility of justice systems. The report stresses that challenges remain in ensuring judicial independence and securing adequate judicial resources, including fair remuneration for judges and prosecutors. Poland sticks out with an ongoing judicial overhaul which infringes EU law.
Corruption continues to be a pressing issue, with many EU citizens and businesses perceiving it as widespread. Some Member States have implemented criminal law reforms and strengthened prosecution authorities to combat corruption effectively. Preventive measures have also been implemented, such as updated anti-corruption strategies and integrity frameworks. The report emphasises the importance of further strengthening preventive frameworks and ensuring effective investigation and prosecution of corruption cases. To this end, the Commission has proposed a new EU-level Directive combating corruption to establish a coherent and efficient response across the EU.
Regarding media freedom and media pluralism, some Member States have taken steps to enhance journalists’ safety, promote transparency in media ownership, and safeguard the independence of media regulatory bodies. However, concerns persist regarding the lack of transparency in the distribution of state advertising, conflicts of interest, and access to public information. The report highlights that reforms are necessary to bolster the independence of public service broadcasters, address challenges to media freedom, and ensure the safety of journalists and their access to information (On this issue, see also the Media Pluralism Monitor 2023 published by the European University Institute (EUI) in June 2023).
Regarding institutional checks and balances, Member States have improved legislative processes and engaged stakeholders in decision-making. Constitutional courts and independent authorities have played vital roles, although challenges remain regarding stakeholder consultation and creating an enabling environment for civil society. The report accentuates the implementation of judgments from the European Court of Human Rights (ECtHR) and the unlawful use of spyware in some Member States.
The report’s chapters on Poland and Hungary were particularly watched as both Member States continue a path of rule of law deterioration. Poland was criticised for a list of unresolved problems, including Warsaw’s failure to make any progress on strengthening integrity rules and ensuring independent investigations. Additionally, serious concerns persist regarding the independence of the judiciary in Poland (see here). Despite adopting legislation to improve certain aspects of judicial independence and amending the disciplinary regime for judges, the European Court of Justice (CJEU) and the ECtHR have issued rulings that confirm the existing concerns. The independence of the National Council of the Judiciary (KRS) remains a considerable concern. Moreover, doubts persist regarding the compliance of some Supreme Court judges with the requirement of a tribunal established by law. Finally, instances of disciplinary proceedings and forced transfers involving judges continue.
Hungary was faulted for not making progress in addressing problems related to lobbying, high-level corruption cases, civil society, and media independence. Moreover, the regulatory environment has become unpredictable, leading to a lack of legal certainty (see here), mainly due to the government’s extensive and prolonged use of emergency powers. Concerns arise from the composition of the Constitutional Court, as Parliament elects its members without the judiciary’s involvement. Although public authorities can no longer refer cases to the Constitutional Court, it retains the power to review the final decisions of the ordinary courts. There are ongoing challenges related to the effective implementation of state authorities’ judgments from the CJEU. Finally, the obstacles faced by civil society organisations have not been addressed, leaving them under continued pressure.
Overall, the Rule of Law Report 2023 provides an overview of the state of the rule of law in the EU and emphasises both the progress made and the remaining deficiencies. It underscores the need for continued efforts to strengthen the rule of law, enhance judicial independence, combat corruption, safeguard media freedom, and reinforce institutional checks and balances across all Member States. On a critical note, the recommendations made in the report are non-binding and continue to be ignored by some Member States’ governments. As a silver lining, the Commission has started to use the recommendations as monetary enabling conditions under the Next Generation EU Fund and the Conditionality Regulation. Hopefully, this will incentivise Member States government’s willingness to read and implement the report.
Copyright: © European Union 2023 – Source : EP
The views expressed in this blog reflect the position of the author and not necessarily that of the Brexit Institute Blog.