In 2022, the European Commission did not observe any major setbacks to the Rule of law in the EU, and even noted some improvements, for example in the transparency of media ownership rules, but also in the independence of the judiciary, including in countries subject to the so-called ‘Article 7’ procedure, such as Hungary.
It also noted that 65% of the recommendations issued in 2021 had been fulfilled, 25% of them completely.
But improvements are still needed in some Member States, notably to strengthen the independence of the judiciary or to improve investigations into cases of high-level corruption.
These are the main findings of the European Commission’s 2023 Rule of Law Report on the 27 Member States, which analyses four areas: the independence of the judiciary, the fight against corruption, media pluralism and freedom, and other institutional issues related to checks and balances.
For this 4th annual report, the Commission organised more than 530 meetings with state authorities, the judiciary and civil society organisations, twice as many as for the first report in 2020, explained the Vice-President for Values and Transparency, Věra Jourová, and the European Commissioner for Justice, Didier Reynders. The two leaders also expressed their conviction that this annual exercise has a tangible impact on the “positive reforms” being implemented by the Member States.
However, they all face “similar challenges”, whether it be monitoring the powers of political authorities in judicial appointments, digitising judicial systems or managing intrusive surveillance such as that carried out by the Pegasus spyware, the vice-president summarised.
Commissioner Reynders, for his part, made more specific reference to the countries for which efforts are required.
While the report concludes that a number of countries have implemented reforms to improve the independence of the judiciary, it is quick to criticise Spain, which has still not renewed its Council of the Judiciary or carried out the reform demanded by the Commission so that half of the judges on this body are appointed by their peers. “We have not seen any progress, unfortunately”, noted the Commissioner, with the report estimating that this blockage has an overall impact on the independence of the judiciary in Spain.
In Greece, the Commissioner also raised concerns about the increasingly restricted framework for NGOs to carry out their activities, particularly those active in the defence of migrants’ rights.
In Slovenia and Latvia, on the other hand, reforms have improved the participation of NGOs in democratic life, as has Portugal, which has passed legislation in this area.
Asked about the issue of police violence in France, Didier Reynders expressed concern at the “very high” level of violence, which has already existed for several years, but confirmed that these aspects were not covered by the report on the Rule of law.
They could, however, become the specific theme of a future annual report by the Commission on the application of the Charter of Fundamental Rights.
Some progress in Hungary
Legislative efforts to strengthen the independence and effectiveness of councils of the judiciary were finalised in a number of Member States following the 2022 report. In Luxembourg and the Netherlands, for example, more than half of the members of the Council of the Judiciary are now judges, the Commission summarised in its report.
In Hungary, a country which, along with Poland, is subject to a specific procedure for monitoring the Rule of law via Article 7 of the Treaty, a new law has also strengthened the role of the National Council of the Judiciary “by enabling it to effectively counterbalance the powers of the President of the National Office for the Judiciary, in particular by ensuring that its opinions on a number of important issues are taken into consideration”. The risk of arbitrary decisions on judges’ careers should therefore be limited by this new law, notes the report.
In Italy, the directly applicable provisions of the reform of the Superior Council of the Judiciary have been implemented. In Sweden, a committee of inquiry has also completed its work and recommended measures to strengthen the independence of the judiciary, including the creation of a new court administration agency that would be more independent of the government.
But in other Member States, concerns about judicial councils have not yet been addressed. In Slovakia, the issue of insufficient guarantees for the dismissal of members of judicial councils appointed by the parliament has been raised, and in Bulgaria, the composition of the Supreme Council of the Judiciary remains a cause for concern.
In Poland, serious concerns about the National Council of the Judiciary also remain to be addressed, “as there are legitimate doubts about its independence”.
Corruption. With regard to corruption, the report notes that Romania has made significant progress in improving the work of the National Anticorruption Directorate (DNA) and the prosecution of high-level corruption cases. In Bulgaria, commitments have also been made to restructure the ‘anti-corruption commission’ as part of the recovery and resilience plan.
However, in some Member States, “the immunity of members of government for corruption offences has been a cause for concern”. Certain countries, such as Luxembourg, have taken steps to remedy the situation. In Romania, the Senate has also adopted rules with objective criteria for ruling on requests to waive parliamentary immunity.
In Poland, however, “concerns about the broad scope of immunities for persons holding executive office who are also members of parliament have not yet been addressed and new impunity provisions have been adopted, creating exemptions for persons holding higher executive office and increasing the risk of corruption”.
Fewer attacks on journalists
With regard to the media, the report notes a drop in attacks on journalists in 2022. “Threats to physical safety, online attacks, defamation campaigns, legal threats and censorship compromise the safety of journalists, although in 2022 the Council of Europe Platform recorded a decrease (of 25%) in alerts in EU Member States compared to 2021”. Several Member States have adopted measures to improve the safety of journalists, in line with the recommendations of the 2022 report. In Greece, a specialised working party has been set up.
Improvements have also been made in Belgium and Sweden.
Lastly, in the area of checks and balances, “in line with the trend observed in previous editions, work to improve the quality of the legislative process and to ensure appropriate participation by stakeholders and civil society is continuing, and progress has been made in several Member States”. Here again, the changes to the rules on public consultation in Hungary should improve the legislative process, although their practical impact has yet to be assessed.
Bulgaria and Romania
Asked about the specific situation of Bulgaria and Romania, which have been the subject of special monitoring since 2007, the Commission confirmed on 5 July its decision to stop producing specific reports on corruption and the Rule of law in the two countries from this year onwards, and launched a consultation of the EU Council and the European Parliament along these lines, from which it expects initial feedback by the end of August.
In particular, the Netherlands had demanded a new report specifically for Bulgaria this year in order to be able to lift its veto on the country’s accession to Schengen, which the Commission refuses to do, judging that its annual report on the Rule of law allows the same scrutiny of these two countries.
Link to documents: https://aeur.eu/f/7wx (Original version in French by Solenn Paulic)