It’s a “pivotal moment” for the Rule of law in the entire EU-27, and no longer only in a small group of countries.
These were the words of European Commissioner for Justice, Didier Reynders, and Vice-President for Values and Transparency, Vera Jourová, when they presented the first ever annual report on the Rule of law in the EU on 30 September.
Criticised the day before by Hungarian Prime Minister Viktor Orbán (see EUROPE 12570/21), the Vice-President said it was “high time to have” such a tool. Above all, it is intended to be preventive and will serve to open a dialogue with the Member States, the European Parliament, and also the “national parliaments”, Didier Reynders said. It will not replace tools such as the Article 7 procedures or the Cooperation and Verification Mechanism.
This first report, with 27 country chapters, covers the situation in 4 categories: judicial independence, the fight against corruption, media pluralism, and other issues related to checks and balances. It was carried out by collecting information from a variety of sources, including reports from international organisations and European institutions, and through consultations on the ground with civil society actors and political authorities. Governments were able to send in their contributions, and “all were able to check the chapters that concern them”, Reynders said.
It therefore contains no surprises, and questions are permitted about its effectiveness, with no associated recommendations.
With regard to judicial independence, some Member States have clearer problems
The report does, of course, review certain difficulties in Member States that have not been subject to criticism so far. Thus, “the right of the executive to give formal instructions to the public prosecutor, including in individual cases, has been the subject of specific debate in some Member States such as Germany and Austria”.
But it is in the countries that have already been closely scrutinised that the biggest problems are to be found: in Poland, Hungary, Bulgaria and Romania, as well as in Croatia and Slovakia.
In Poland, the dual role played by the Minister of Justice, who is also the public prosecutor, “increases vulnerability to political influence with regard to the organisation of public prosecution and the investigation of cases”. The role of the Prosecutor General vis-à-vis lower-ranking prosecutors is also problematic in Bulgaria.
There are also concerns about the general approach of the reforms and their impact on independence. In Hungary, the independent National Council of the Judiciary has struggled to counterbalance the powers of the President of the National Judicial Office, who is responsible for the management of the courts.
Moreover, the justice reforms carried out by Poland since 2015 have been “a major source of controversy and have given rise to serious concerns, several of which persist”.
In Bulgaria there are also concerns about the composition and functioning of the Supreme Judicial Council and the Inspectorate of the Supreme Judicial Council. In Romania, the controversial reforms adopted in 2017-2019, which had a negative impact on the independence of the judiciary, remain in place.
In Croatia, “weak administrative capacity hampers the ability of the National Council of the Judiciary and the Prosecutor-General’s Council to fulfil their mandate, as their role in the appointment of judges and prosecutors has been reduced”. Finally, in Slovakia, “the independence and integrity of the justice system has long been a matter of concern”.
A mixed picture on corruption
In this chapter, the Commission painted a more positive picture of the efforts undertaken, particularly in Malta, whose “entrenched corrupt practices” were highlighted by the murder of journalist Daphne Caruana Galizia. A comprehensive reform project has now been launched to fill the gaps and strengthen the institutional framework for the fight against corruption, including law enforcement and prosecution. “Similarly, in Slovakia, the government announced a series of reforms in response to the public outcry caused by revelations made in the course of the investigation into the murder of journalist Ján Kuciak and his fiancée Martina Kušnírová. Legal proceedings are still ongoing”.
Italy's anti-corruption law, adopted in January 2019, increased the penalties for corruption offences and suspended the limitation period after judgements in the first instance jurisdiction. Spain has also made efforts to strengthen the capacity of the Public Prosecutor’s Office by allocating additional resources and updating criminal legislation to extend the statute of limitations for corruption-related offences. Finally, France has recently adopted measures to reorganise the financial police: the proportion of corruption-related cases as a proportion of all cases has significantly increased in 2020.
But the report still points to shortcomings for a similar group of countries: for example, in Bulgaria, “significant challenges remain before these institutions can acquire a solid reputation for impartiality, objectivity and independence. A strong record of final convictions in high-level corruption cases has yet to be established”.
In Croatia, “the efforts of specialised anti-corruption services are hampered by the lack of specialised investigators and the inefficiency of the judiciary, as the length of court proceedings and appeals often prevents the closure of cases, especially those involving high-ranking officials”.
Nor are prosecutions “systematically initiated in cases of high-level corruption in the Czech Republic”.
Furthermore, in Hungary, “there seems to be a general lack of determination to initiate criminal investigations and prosecutions in corruption cases involving senior officials or their immediate entourage in cases of serious allegations”.
On media pluralism, pro-government tropism in Hungary
On the independence of media regulatory authorities, concerns were “expressed about the risk of politicisation of the competent authority, as in Hungary, Malta and Poland”.
Other concerns relate to “the effectiveness of the actions of some national media authorities, given the resources at their disposal. This is the case, for example, in Bulgaria, Greece, Luxembourg, Romania and Slovenia”, notes the report.
In a few countries, “there are obstacles to the effective disclosure of the identity of owners, or there is, in fact, no information mechanism in this regard. In the Czech Republic, media companies are not obliged to disclose their ownership structures, any changes to them, or any information on the beneficial owner of the company. In Cyprus, there is no transparency regarding the ownership of print and digital media outlets. The lack of transparency regarding media ownership is also a source of concern in Bulgaria”.
As for the distribution of public advertising, Hungary and Austria have been singled out. In Hungary, “large volumes of public advertising attributed to pro-government media have allowed the government to exert indirect political influence on the media”.
The Commission also recalls that the creation of the Hungarian media conglomerate KESMA, resulting from the merger of more than 470 pro-government media without any outside scrutiny, is seen as a “threat” to media pluralism.
Austria, on the other hand, attributes “relatively high levels of public advertising to media companies and this raises concerns about the political influence that could be exerted through this channel”.
Progress on checks and balances
In the latter category, the Commission welcomed the many reforms across the EU to increase citizen involvement in the legislative process (such as the French citizens’ debates), and debates on the Rule of law are increasing.
New constitutional reforms in Slovakia, Malta, Lithuania and Cyprus also offer new safeguards.
However, here again, “excessive reliance on fast-track legislation and emergency legislation may give rise to concerns about the Rule of law”. The Commission mentioned Poland here, as well as Romania.
The impact of Covid-19
Across the board, the Commission stressed throughout its report that the pandemic has put institutions to the test, but notes that “responses to the crisis have shown a generally strong resilience within national systems, which has been reflected in intense political and legal debates on the measures taken”.
In many Member States, the control exercised by the Parliament and the Constitutional Court has been effective.
A first “horizontal” discussion in the General Affairs Council will take place in October, and a discussion on a first group of 5 countries (Belgium, Estonia, Czech Republic, Bulgaria, Denmark) in November (and not in October as mistakenly indicated in our article, see EUROPE 12570/21).
Link to the report and the 27 national chapters: https://bit.ly/3n4gU07 (Original version in French by Solenn Paulic)