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Poland reestablishes the Rule of Law. Photo by geralt on Pixabay

Brussels, 5 July 2023

The Commission has today published its fourth annual Rule of Law Report, taking the pulse of the rule of law situation in each Member State.

While Rule of Law concerns remain in some EU Member States, the report has become a key driver for change and positive reforms. In fact, 65% of last year’s recommendations have been, fully or partially, addressed. This shows that important efforts are ongoing in Member States to follow up on the previous year’s recommendations.  Given that reforms to improve the rule of law framework take time, this reflects a significant development over only one year. At the same time, systemic concerns remain in some Member States.

Today’s package includes a Communication examining the situation in the EU as a whole and 27 country chapters looking at significant developments in every Member State since July 2022. The report includes an assessment of last year’s recommendations and provides again specific recommendations to Member States.

The report covers four pillars: national justice systems, anti-corruption frameworks, media pluralism and other institutional checks-and balances.

Key findings and recommendations

Justice reforms

Justice reforms have remained high on the political agenda over the last year, with many Member States following up on the 2022 recommendations and implementing reforms agreed in the context of the RRF.

Many Member States have further advanced with or finalised important reforms to strengthen judicial independence, such as legislative efforts to strengthen the independence and effectiveness of Councils of the Judiciary, improving judicial appointment procedures and the functioning of their highest courts or are preparing steps to strengthen the autonomy of prosecution services.

Member States also introduced measures aimed at improving efficiency and quality of justice, as well as facilitating access to justice. Member States further invested in their justice systems, although in some Member States, remuneration of judges and prosecutors present a concern and led to challenges to recruit qualified judicial personnel. At the same time, structural concerns persist in a few Member States as regards judicial independence.

Regarding the recommendations for 2023 on justice, they address such challenges as the need for safeguards in judicial appointment procedures, the composition of Councils of the Judiciary, the autonomy of the prosecution service or the need to provide adequate resources for the judiciary, including salaries of judges and prosecutors.

Anti-corruption frameworks

Corruption remains a serious concern for EU citizens and businesses alike. The 2023 Special Eurobarometer on Citizens’ Attitudes towards corruption in the EU shows, for example, that an increasing majority of citizens (70%) and businesses (65%), according to the Flash Eurobarometer on Businesses’ Attitudes towards corruption in the EU, believe that corruption is widespread in their country.  Europeans are increasingly sceptical about national efforts to address corruption, with around 67% thinking that high-level corruption cases are not pursued sufficiently.

A number of Member States have taken measures, in line with the 2022 Rule of Law report’s recommendations on anti-corruption. Several Member States have taken forward criminal law reforms to strengthen the fight against corruption. While some Member States have continued to build upon their track record of investigating, prosecuting and sanctioning high-level corruption, some have taken action to strengthen the capacity of prosecution authorities responsible for the fight against corruption through additional resources and specialisation.

On the preventive side, several Member States updated existing anti-corruption strategies and action plans or are in the process of revising them. Other Member States have taken steps to strengthen integrity frameworks, such as codes of conducts or lobbying rules. The recommendations issued this year are related to the strengthening of preventive frameworks, such as those governing lobbying and conflicts of interest rules, as well as ensuring the effective investigation and prosecution of corruption cases.

Public officials are subject to asset and interest disclosure obligations in the majority of Member States, but these vary in scope, transparency and accessibility of disclosed information, as well as in the level and effectiveness of verification and enforcement. In some Member States, investigations and prosecutions into corruption cases are lengthy and a solid track record is still lacking, especially in high-level cases. To ensure a more coherent and effective response to corruption across the Union, the Commission has proposed new EU-level legislation on corruption in May 2023.

Media freedom and pluralism

Several Member States have adopted, strengthened or are discussing measures to improve journalists’ safety and working conditions, also building on recent Commission initiatives such as the Recommendation on ensuring the protection, safety and empowerment of journalists and the Recommendation on protecting journalists and human rights defenders who engage in public participation from manifestly unfounded or abusive court proceedings. Since the last report, certain Member States have adopted legislation increasing the transparency of media ownership and have strengthened provisions to enhance the independence or extend the remit of their media regulatory authorities.

Various concerns persist with regard to the lack of transparency in the distribution of state advertising, conflicts of interests and access to public documents, which are some of the important issues highlighted in the report requiring greater attention. While some Member States have initiated reforms to strengthen the independence of their public service broadcasters, in several others, challenges in this respect remain unaddressed.

The findings in the report in relation to media freedom build on various sources, including the Media Pluralism Monitor (MPM 2023), the Council of Europe Platform to Promote the Protection of Journalism and Safety of Journalists and the Mapping Media Freedom Platform.

The Commission has again issued a number of recommendations which cover, among others, the transparent and fair allocation of state advertising, the independent governance of public service media and measures to improve the safety of journalists as well as the right of access to public documents. The Commission proposed in September 2022 the Media Freedom Act, now under negotiations, to set out safeguards at EU level to protect media pluralism and editorial independence.

Institutional checks and balances

Member States have continued to improve the quality of their legislative processes and to involve stakeholders in these processes – a trend noted in the previous Rule of Law Reports. Constitutional Courts continue to play a key role in the system of checks and balances and have also taken important decisions regarding the organisation of national justice systems. National Human Rights institutions, ombudspersons and other independent authorities have seen their status further strengthened in some Member States. In the majority of Member States, there is an enabling and supportive environment for civil society and some of them are taking measures for further support.

However, there is still no formal framework for stakeholder consultation in some Member States, or it is not sufficiently followed in practice, and civil society organisations and human rights defenders continue to face challenges such as funding issues and restrictions on their operating space. Concerns have been raised in various Member States regarding the continued use of emergency powers.

The Report again includes information on Member States’ implementation of judgments by the European Court of Human Rights. It also follows up further on the reactions of Member States’ checks and balances to the use of spyware.

To address some of these challenges, the Commission has reiterated recommendations that remain partly or not addressed, and where relevant issued additional ones, relating for example to the effective involvement of stakeholders in the legislative process, the establishment and functioning of accredited National Human Rights Institutions and to ensure an open operating framework for civil society.

Next steps

The Commission now invites the European Parliament and the Council to continue general and country-specific debates on the basis of this report, also using the  recommendations to further examine concrete implementation. It also calls on national Parliaments, civil society, and other key stakeholders and actors, to continue national dialogue on the rule of law, as well as at European level, with increased citizen’s engagement. Finally, the Commission invites Member States to effectively take up the challenges identified in the Report, as it stands ready to assist them in their efforts to continue the implementation of recommendations.

Background

The rule of law is crucial for every citizen and business in the EU as it is a precondition for the respect of other values, it guarantees that fundamental rights are upheld in line with a set of core democratic values, ensures the application of EU law, and supports an investment-friendly business environment. It is an integral part of the very identity of the European Union.

The annual Rule of Law Report is the result of close dialogue with national authorities and stakeholders, and covers all Member States on the basis of the same objective and transparent methodology, while examining the same set of issues in each country. The qualitative assessment carried out by the Commission focuses on significant developments since the adoption of the third annual Rule of Law Report in July 2022, while remaining proportionate to developments.

The report is at the centre of the annual Rule of Law Cycle. This yearly cycle is preventive – it serves to promote the rule of law and aims to keep problems from emerging or deepening. It is separate from the other elements in the EU’s Rule of Law Toolbox and complements but does not replace the Treaty-based mechanisms allowing the EU to respond to more serious rule of law related issues in Member States. These tools include infringement proceedings and the procedure to protect the founding values of the Union under Article 7 of the Treaty on European Union.

The fourth edition of the report builds on the important step taken in last year’s report where specific recommendations for all Member States had been included for the first time. The analysis also contains a qualitative assessment of the progress made by the Member States towards implementing the 2022 recommendations, taking into account the overall context in the Member States. Depending on the progress made on the various subparts of each recommendation, the Commission concluded its assessment in each case using the following categories to track developments: no progress, some progress, significant progress and full implementation.

The 2023 recommendations either build on last year’s recommendations, where there was no or partial implementation, or address new challenges. They have been prepared based on the assessment in the country chapters and the dialogue with Member States as well as in full respect of the principle of equal treatment. In issuing the recommendations, the Commission has paid close attention to keeping them focused and anchored in European standards, and has taken into account national legal systems. In addition, consistency and synergies with other processes, such as the European Semester, the budget conditionality mechanism and the Recovery and Resilience Facility are ensured. Future editions of the Rule of Law Report will continue to look at the follow-up given to the recommendations. The recommendations should be read together with the assessments in the country chapters that examine particular concerns and are meant to guide Member States to take measures to address them.

The challenges identified by the previous Rule of Law Reports have provided inspiration for several recent EU initiatives over the past year, including the proposal for a European Media Freedom Act and the Anti-Corruption Package.

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Q&A: Rule of Law Report 2023

5 July 2023

 

What is the Rule of Law Report?

The annual Rule of Law Report is a preventive tool and part of the annual Rule of Law Cycle. It complements other mechanisms and instruments at EU level, the so-called ‘EU Rule of Law Toolbox’, each with their own purpose. The aim of the report is to look at both positive and negative rule of law developments across the EU, as well as the specific situation in each Member State. The rule of law benefits everyone in the EU, as it guarantees fundamental rights and values, ensures the application of EU law, and supports an investment-friendly business environment. It is one of the fundamental values upon which the EU is built.

The aim of the report is to promote and safeguard the rule of law in the EU and each of its Member States. Learning from each other’s experience better equips Member States to find the best way forward and to prevent challenges to the rule of law from emerging or deepening. The report covers developments in four key areas for the rule of law: justice systems, the anti-corruption framework, media pluralism and freedom, and other institutional issues linked to checks and balances. The 2023 report presents an assessment of the rule of law situation in Member States, including the follow-up to the recommendations made in 2022, and significant developments at the EU level since July 2022. It consists of a general report and 27 country chapters. The report also includes specific recommendations to Member States, aiming to further assist them in their efforts to take forward ongoing reforms and help them identify where improvements are needed.

What is new in the 2023 Rule of Law Report?

The 2023 report looks particularly at how Member States have followed up on the recommendations issued for the first time last year. The report finds that almost two-thirds of the recommendations have already been followed up on by Member States. For each recommendation from 2022, an assessment of the progress made is provided. On this basis, and taking into account new developments, the 2023 Report includes an updated set of country-specific recommendations for each Member State. These recommendations either follow up on last year’s recommendations, where there was no or partial implementation, or address new challenges.

The objective of the recommendations is to support Member States in their efforts to take forward ongoing or planned reforms, to encourage positive developments, and to help them identify where improvements or follow-up to recent changes or reforms may be needed. In the country chapters, the Commission has followed up on the challenges and developments identified in the previous two reports, deepening its assessment in certain areas. For example, this year’s report is looking in a more granular manner at the situation in the Member States as regards the framework for civil society organisations, which are key for upholding the rule of law.

How has the Commission followed up on the recommendations and assessed their implementation?

The Commission invited Member States, where interested, to hold technical follow-up meetings to discuss the recommendations included for the first time in the 2022 report. Several Member States have responded positively and engaged in a technical dialogue. In addition, regular bilateral meetings take place at political level and Commissioners continued to discuss the Rule of Law Report with representatives in national Parliaments. The country visits also provided an opportunity to exchange on the follow-up to recommendations issued in the 2022 report.

The analysis in the Report contains an assessment of the progress made by Member States towards implementing the 2022 recommendations, based on a qualitative analysis of developments since July 2022, considering the overall context in the Member States. Depending on the progress made on the various subparts of each recommendation, the Commission concluded in each case using the following categories: no progress, partial implementation (amounting to either some progress or significant progress), and full implementation.

What are the principles for choosing the recommendations?

The inclusion of concrete, country-specific, recommendations was first announced by President von der Leyen in the 2021 State of the Union address.

In line with the preventive nature of the report, and based on the continuous dialogue with Member States, the objective of these new recommendations is to: (i) support Member States in their efforts to take forward reforms; (ii) encourage positive developments; and (iii) identify where improvements or a follow-up on reforms may be needed, also with a view to addressing systemic challenges in certain cases. The recommendations stem directly from the analysis included in country chapters and aim to guide Member States to take appropriate measures to address concerns raised. The recommendations do not prejudge in any way any proceedings the Commission may initiate under other legal instruments, such as infringement procedures or the Conditionality Regulation.

In preparing the recommendations included in this report, the following principles have been observed, as established in the updated methodology for the 2022 Report:

  • All Member States are subject to country-specific recommendations in full respect of the principles of equal treatment and proportionality.
  • The recommendations in the report are based on an in-depth assessment in the country chapters, and the application of objective criteria grounded in EU law or European and international standards.
  • The recommendations are proportionate to the identified challenges. They also encourage the pursuit of positive reform efforts.
  • The recommendations are sufficiently specific to allow Member States to give a concrete and actionable follow-up, while taking the national competences, legal systems, and institutional context into account as relevant.
  • In preparing the recommendations, the Commission has paid close attention to consistency and synergies with other processes, such as the European Semester, the Conditionality Regulation and the national Recovery and Resilience Plans.
  • Subsequent editions of the Rule of Law Report will cover the follow-up to the recommendations.
How did the Commission prepare the 2023 Rule of Law Report?

The 2023 edition is the result of an inclusive process with Member States and stakeholders, and follows the same public methodology as previous reports, updated following discussions with Member States.

In November 2022, Member States were consulted on the questionnaire used to collect input for the third report. Between December 2022 and January 2023, the Commission received written input from Member States and around 250 written contributions from stakeholders about specific developments in Member States, as well as at the EU-level.

Between February and April 2023, over 530 meetings as part of the country visits took place online across all 27 Member States, and the Commission discussed rule of law developments with over 700 national authorities, including judicial authorities, law enforcement, as well as other stakeholders, such as journalists’ associations and civil society organisations. Member States were given the opportunity to provide factual updates on their country chapters ahead of the adoption of the third Rule of Law Report.

The Rule of Law Network, which was set up in 2020, continued to provide a channel of communication between the Commission and the Member States.

How has the Commission assessed the developments related to the rule of law in the 27 Member States?

The assessments contained in the 27 country chapters were prepared in line with the public methodology discussed with Member States. The work is based on a variety of sources and is again focused on four main pillars: the justice system, the anti-corruption framework, media pluralism, and other institutional checks and balances. For each pillar, the methodology recalled the EU law provisions relevant for the assessment. It also refers to opinions and recommendations from the Council of Europe, which provided useful guidance.

The country chapters rely on a qualitative assessment carried out by the Commission, focusing on a synthesis of significant developments since the adoption of the last report. The assessment covers both challenges and positive developments, including good practices. In each country chapter, the analysis focuses in particular on topics where there have been significant developments, or where important challenges have been identified in the previous report and persist during the reporting period.

The country-specific chapters do not purport to give an exhaustive description of the rule of law situation in Member States but focus on the most significant developments.

The specific recommendations tailored to each Member State stem directly from the assessments included in the country-specific chapters.

What is the value added of the Rule of Law Report?

This report brings an important contribution to promoting and safeguarding the rule of law in the EU, in each Member State and the EU as a whole. This is also illustrated by the engagement and cooperation that Member States have once again demonstrated in the preparation of this year’s report. The report has become a true driver of positive reform – this year’s edition shows that important efforts are ongoing in Member States to follow-up on the previous year’s recommendations and address challenges identified. This is happening at various speeds and levels of completeness, with some important concerns remaining in some Member States, but overall, within this one-year framework, almost two-thirds of the recommendations issued in 2022 related to important reforms in national justice systems, anti-corruption frameworks, media pluralism and other institutional checks-and balances, have been followed-up, at least to some extent. The 2023 recommendations aim to further assist and support Member States in their efforts to take forward on-going reforms and to identify where other improvements may be needed to address particular concerns.

Throughout the past year, the rule of law has been a prominent theme on the European agenda, with the 2022 Rule of Law Report bringing a major contribution to informing the political as well as the technical debate at both EU and national level. The annual Rule of Law Report is indeed central to our efforts to have a practical impact on promotion and safeguarding of the rule of law in the EU. The findings of the Rule of Law Reports. and their specific recommendations,  have brought a major contribution to informing the debates on the rule of law at both EU and national level. On its basis, the General Affairs Council meetings, for example, held constructive discussions and successfully exchanged best practice.

The European Parliament has also played an increasingly important role in debating the rule of law, a trend which has continued over the past years. In this regard, the European Parliament has provided the Commission with several recommendations on how to develop the reports further.

In the same vein, following the publication of the 2022 Rule of Law Report, the Commission visited many national Parliaments to present and discuss the methodology and the country-specific findings of the 2022 Rule of Law Report.

Which stakeholders were consulted on this report?

The Commission carried out a targeted stakeholder consultations, which provided general and country-specific contributions from a variety of EU agencies, European networks, national, European civil society organisations and professional associations and international and European actors. These included: the Fundamental Rights Agency, the European Network of Councils for the Judiciary (ENCJ), the European Network of National Human Rights Institutions (ENNHRI), the Council of Bars and Law Societies of Europe (CCBE), the Council of Europe, the UN Office of the High Commissioner for Human Rights and the Organisation for Economic Co-operation and Development (OECD) as well as national and international civil society and journalists’ organisations.

The report also builds on a series of studies and reports, such as the Media Pluralism Monitor, relevant Eurobarometers, or the EU Justice Scoreboard.

 How will the Commission support Member States in addressing challenges?

Several instruments and funding opportunities are already in place to support structural reforms through technical assistance and the funding of projects. For example, since 2017, the Commission has had a dedicated programme (Technical Support Instrument) for technical support for rule of law reforms in Member States. The support can take the form of expert and fact-finding missions on the ground, sharing relevant best practice, diagnostic analyses, and the development and implementation of targeted solutions.

Moreover, the recommendations are meant to guide Member States to take measures to address particular concerns or areas for follow-up raised in the Report. The Commission stands ready to further assist Member States in implementing the recommendations, including through bilateral technical dialogues.

Other Commission programmes, such as those for Justice and Citizens, Equality, Rights and Values, also help Member States address challenges, including through calls for proposals open for civil society and other stakeholders.

To address a number of rule of law relevant country-specific recommendations under the European Semester by concrete reforms and investment measures, the Commission agreed with several Member States to include concrete milestones and targets in their Recovery and Resilience Plans. This includes important reform priorities, such as improving the business environment through effective public administration and justice systems. These were subsequently formally approved by the Council and are now being gradually implemented.

What is the Annual Rule of Law Cycle?

The Annual Rule of Law Cycle provides a process for an annual dialogue between the European Parliament, the Council and the Commission, as well as with Member States, national parliaments, civil society and other stakeholders. The Rule of Law Report is the foundation of this process.

The Rule of Law Report, and the preparatory work with Member States, is an annual exercise of the Cycle, and serves as a basis for discussions in the EU to prevent problems from emerging or deepening and identify and share best practice. Identifying challenges as soon as possible with mutual support from the Commission, other Member States, and stakeholders, including the Council of Europe and the Venice Commission, helps Member States safeguard and uphold the rule of law.

The Annual Rule of Law Cycle is part of broader EU efforts to promote and defend its fundamental values. This work is also carried out through the European Democracy Action Plan, the renewed Strategy for the Implementation of the Charter of Fundamental Rights, as well as targeted strategies to help build a Union of Equality.

How does the Annual Rule of Law Report relate to other procedures?

The annual Rule of Law Report is a preventive mechanism, aimed at improving the rule of law situation across the EU, raising awareness of challenges and facilitating solutions early on to prevent deterioration. It complements a number of other mechanisms and instruments at EU level, each with their own purpose.

When preparing the recommendations, the Commission paid close attention to consistency and synergies with other processes, such as the European Semester, the General Conditionality Regulation and the national Recovery and Resilience Plans.

  • Article 7 of the Treaty on European Union (TEU)

The Article 7 TEU procedure remains an exceptional response instrument for the EU to act where there is a clear risk of a serious breach, or the existence of a serious and persistent breach, of the values of Article 2 TEU, including the rule of law.

  • Infringement procedures

Infringement procedures have a specific aim, namely to ensure the correct application of EU law by Member States. Under the Treaties, the Commission may take legal action against a Member State that fails to implement EU law by launching an infringement procedure and ultimately referring the matter to the Court of Justice.

  • Rule of law conditionality mechanism

The general regime of conditionality is a budgetary instrument designed to remedy adverse effects of breaches of the principles of the rule of law on the financial interests of the Union.

The Commission may take into account the Rule of Law Report, as well as other sources from other institutions (for instance, the European Anti-Fraud Office, the European Public Prosecutor’s Office, and the European Court of Auditors), when identifying and assessing breaches of the principles of the rule of law that affect the financial interests of the EU.

  • Recovery and Resilience Facility

To address a number of rule of law relevant country-specific recommendations under the European Semester by concrete reforms and investment measures, the Commission agreed with several Member States to include concrete milestones and targets in their Recovery and Resilience Plans. These were subsequently formally approved by the Council and are now being gradually implemented.

  • The Cooperation and Verification Mechanism

In 2007, the Cooperation and Verification Mechanism (CVM) was set up to cover progress in Bulgaria and Romania with regard to judicial reform, the fight against corruption and (for Bulgaria) the fight against organised crime. The cooperation and reporting from the Commission under the CVM has been instrumental in fostering reform in these areas in Bulgaria and Romania since their accession to the EU.

In its latest CVM report for Romania (22.11.2022) and for Bulgaria (22.10.2019), the Commission concluded that progress made by Romania and Bulgaria is sufficient to meet the CVM commitments made at the time of their accession to the EU and that all benchmarks can be satisfactorily closed. Both Member States had some specific commitments to finalise as listed in the conclusions of their respective CVM reports.

The Commission has since no longer monitored nor reported on Bulgaria and Romania under the CVM, but monitoring has continued within the annual rule of law cycle, with reporting being consolidated in the Commission’s annual Rule of Law reports, as for all Member States. The Rule of Law reports look at several issues explored under the CVM and will help address remaining shortcomings and possible new emerging issues, as a preventive tool. The scope of the Rule of Law cycle is broader than the CVM, as it covers not only judicial reform and the fight against corruption, but also media freedom and pluralism as well as institutional checks and balances.

On 27 and 28 June 2023 Bulgaria and Romania respectively have informed the Commission that they have finalised their specific commitments under the CVM.

Closing the CVM requires a formal Commission decision repealing the CVM mechanism. Before reaching a final decision, the Commission will consider the observations of the Council, and of the European Parliament. On 5 July 2023 the Commission informed the Council that the Commission intends to repeal Commission CVM Decisions 2006/928/EC and 2006/929/EC by the beginning of September 2023 and that the Council could make observations by 25 August 2023. This information was also shared with the European Parliament.

The Commission looks forward to continuing cooperation with Bulgaria and Romania under the annual Rule of Law cycle, and in the context of other parts of the rule of law toolbox, as for all Member States.

The EU Justice Scoreboard

The EU Justice Scoreboard presents comparative data on the functioning of national justice systems. It is one of the sources of information which informs the Rule of Law Report, the Rule of Law Conditionality Mechanism, and the European Semester.

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