In its second annual report on the Rule of law in the EU27, the European Commission confirmed, on Tuesday 20 July, its “strong concerns” about the situation of the judiciary in Poland and media freedom and corruption in Hungary.
But it also reported positive developments in other countries that have strengthened judicial appointment processes or consolidated independence.
For the Vice-President for Values and Transparency, Věra Jourová, this report is a “central tool in our Rule of law toolbox”. For Commissioner Didier Reynders, this exercise has already had the effect of “influencing the situation in a number of Member States” and encouraging reforms.
This ‘Rule of Law’ report, the second of its kind, reviews the independence of the judiciary, the fight against corruption, the situation of the media and the overall balance of checks and balances across the EU27.
While the cases of Poland and Hungary, which has just adopted a controversial law on LGBTIQ people, are particularly noteworthy, the Commission wants its report to be more than an exercise in ‘naming and shaming’ and to provide an objective picture of the situation. “Moreover, there are gaps and room for improvement in all Member States”, says an EU source. The report mentions the case of France, where journalism came under pressure at the time of the Global Security Act.
Independence of the judiciary: progress in some countries
On positive trends in the field of justice, the report notes that the judicial system in Slovenia, which holds the Presidency of the Council of the EU, has improved since the last report published in September 2020.
In particular, it welcomes the Constitutional Court’s ruling that the rules governing parliamentary enquiries are unconstitutional due to the lack of guarantees on the independence of the judiciary, which is an important protection for judges. The judiciary has also launched a debate on improving the framework of disciplinary procedures for judges. But the report points out that Slovenia has not yet appointed its delegated prosecutors for the European Public Prosecutor’s Office, which is an “unjustified delay” and cause for concern.
The Commission also reports on progress in Italy, with a draft law on the High Council of the Judiciary and other aspects of the judicial system aimed at strengthening the independence of the judiciary.
The Commission sees progress in Malta as well. “The reforms of 2020, in particular the reform of the system of judicial appointments and of judicial discipline, have contributed to strengthening the independence of the Maltese justice system”. The “perception of judicial independence has notably improved” and “steps have been taken to depoliticise the appointment of the Chief Justice”. There are ongoing discussions to enhance the independence of specialised tribunals.
The report also notes progress in Romania, where amendments have been made to reverse concerns raised by judicial reforms passed between 2017 and 2019.
Also in Slovakia, significant efforts “have been made to improve the independence, integrity, quality and efficiency of the judicial system”.
Polish and Hungarian cases cause concern but so does Spain
Poland and Hungary, on the other hand, are countries of major concern. The Commission is now in constant dispute with Warsaw over its various reforms that have weakened the independence of the judiciary. The latest area is the primacy of European law.
“The reforms of the Polish judicial system, including new developments, continue to be a source of serious concern”, the Commission says. “Reforms carried out since 2015 increased the influence of the executive and legislative powers over the justice system to the detriment of judicial independence”.
In April 2021, the Commission referred Poland to the Court of Justice in view of a law on the judiciary which undermines the independence of judges and in July 2021, the Court ordered interim measures in that case.
However, “on the same day, the Constitutional Tribunal held that interim measures ordered by the Court of Justice in the area of the judiciary are inconsistent with the Polish constitution”. The Commission therefore decided, on 20 July, to threaten Poland with a financial penalty.
For Hungary, the judicial system “performs well in terms of the length of proceedings and has a high level of digitalisation (and) the gradual increase of salaries of judges and prosecutors continues”.
However, as regards judicial independence, the justice system has been subject to “new developments adding to existing concerns”. The new rules allowing the appointment of members of the Constitutional Court to the Supreme Court (Kúria) outside the normal procedure thus enabled the election of the new president of the Kúria, who was elected despite a negative opinion of the National Judicial Council. The recommendation to strengthen the independence of the judiciary, made in the framework of the European Semester, has still not been implemented.
But the report also points to other countries, such as Spain. “The Spanish justice system continues to face some challenges. In particular, the lack of renewal of the Council for the Judiciary persists in the absence of an agreement in Parliament”.
Concerns have also been raised regarding the competence of the Supreme Court for criminal liability of high-level positions.
Media: focus in particular on Hungarian case
Hungary has been targeted for several days by the international investigation into the Pegasus spying software, which it is allegedly using to spy on journalists, adding another concern. If the spying on journalists is confirmed, it is “ unacceptable”, the two Commissioners said, warning that the Commission stands ready to act.
In Hungary, in any case, “Media pluralism remains at risk”. “Concerns persist with regard to the independence and effectiveness of the Media Authority, also in the light of the Media Council’s decisions leading to independent radio station Klubrádió being taken off air”.
“While no media support schemes were established to counter the impact of the Covid-19 pandemic on news media outlets, significant amounts of State advertising have continued to permit the government to exert indirect political influence over the media. Access to public information was tightened through emergency measures introduced during the pandemic, making timely access to such information harder for independent media outlets”. Independent media outlets and journalists continue to face obstruction and intimidation.
In Poland, negative impacts are feared with the acquisition of Polska Press by the State-owned company Orlen. And, “since 2020, journalists’ professional environment has deteriorated, with use of intimidating judicial proceedings, growing failure to protect journalists and violent actions during protests, including from police forces”.
But the report also highlights the risks to the safety of journalists in Greece and the Netherlands, where two journalists specialised in covering crime were recently murdered.
Corruption: concerns in Hungary and Austria, improvement in Slovakia
In Hungary, the report mentions “risks of clientelism, favouritism and nepotism in the senior administration”. And the risks “arising from the link between business and political actors are still not addressed”. Independent control mechanisms remain insufficient to detect corruption, the Commission says, citing concerns about the lack of systematic controls and insufficient monitoring of declarations of assets and interests.
The Commission also points to shortcomings in Austria, where investigations into high-level political corruption have intensified in the wake of recent political scandals, but “prosecutors working on these cases have faced negative narratives from politicians”. And measures to effectively address integrity risks for parliamentarians remain limited.
In the Czech Republic, a number of reforms are still pending and “investigations and audits at national and European level of the use of EU funds have recently found evidence of conflicts of interest at the top executive level”. And because of the pandemic, most anti-corruption measures in the health care sector have been postponed.
In Slovakia, however, “efforts to crack down on corruption have increased considerably and are bearing fruit”.
Overall balance
The report notes that checks and balances generally worked well and were resilient during the pandemic, although institutions such as parliaments came under pressure and sometimes had little time to validate emergency measures. However, these already fragile balances have come under even greater pressure in countries such as Poland and Hungary.
Links to the report: https://bit.ly/2W0Kf2C; https://bit.ly/3BxjYcy (Original version in French by Solenn Paulic)