Commission struggles to defend usefulness of its rule of law report

File photo. Read-out of the weekly meeting of the von der Leyen Commission on the 2021 Rule of Law report. Věra Jourová, Didier Reynders. [Christophe Licoppe/ EC - Audiovisual Service]

Despite increasingly common violations of basic democratic standards, top EU officials say that the Commission’s freshly released second annual rule of law report helps prevent future headaches, while critics warn that summaries of problems can do little to resolve deepening crises within the bloc.

“There is no doubt that we need to step up our actions to uphold the rule of law,” the Commission Vice-President for values and transparency Vera Jourova told journalists.

This year’s report covering all 27 member states was an “exercise of consolidation and deepening” of the first edition, as one official put it, in which the Commission took a closer look at EU countries’ justice systems, anti-corruption framework, media freedom, and institutional checks and balances.

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The European Commission said on Wednesday (30 January) that the Union-wide assessment of the rule of law will complete its toolbox with a “preventive” mechanism to guard against backsliding in countries across the bloc.

An EU official said they see the effort already bearing fruit as member states are comfortable discussing rule of law issues within EU institutions.

Murky results

Pressed by reporters to provide concrete examples where the rule of law report has made an impact, the Commission officials pointed to an action plan adopted by Bulgarian authorities to address the concerns raised in the report.

However, the 2021 report found only a “”gradual process” of judicial reforms in the EU’s poorest and one of most corrupt member states, where “challenges remain.”

“Significant challenges remain concerning the effectiveness of measures related to the integrity of public administration, lobbying and whistleblowing protection, where no dedicated regulation exists,” the report said.

On the checks and balances front, “the limited use of impact assessment and public consultation in the legislative process remains a concern,” according to the report.

Moreover, it is unclear if the swift action is attributable to the report or the fact that Bulgaria is still subject to the so-called cooperation and verification mechanism, which has monitored judicial reform, corruption and organised crime developments in the country since it has joined the bloc.

“What is clear is that as soon as the report identifies a problem, this becomes part of the political debate, and then there’re means and ways to address it. Whether or not the problem is going to be ultimately solved is a different matter,” the official said.

Justice Commissioner Didier Reynders told journalists that the Commission is “seeing the situation develop on the basis of the comments” from last year, “we’ve seen a whole series of reforms being proposed”.

He cited the examples of “positive reforms in many member states”, including Luxembourg, Italy, Germany, and Spain, related to judicial councils and bolstering judges’ independence, where Brussels would like to see the majority of members elected by their peers.

However, there has been no real movement on the issue of the hotly contested reappointment of the General Council of the Judiciary in Spain since, which has been exercising its functions ad interim since 2018 because political parties cannot reach the required three-fifths majority.

“Separate” exercises

Asked if the report’s findings could be used to trigger the EU’s new conditionality mechanism linking the disbursement of EU funds to the rule of law in individual countries or, alternatively, in the assessment of the necessary conditions to protect the Union money that will soon start flowing as part of the recovery efforts, the officials stressed that these are “separate exercises”.

Yet, Reynders later told journalists that the 2021 rule of law report could be “maybe one of the most important sources for the possible application” of the rule of law conditionality.

The Commission has so far withheld the approval of the recovery funds by Poland and Hungary – both locked in a long series of quarrels with Brussels over rule of law and corruption concerns – which are key to unlocking post-COVID EU support.

Jourova said the Commission is looking for audit and control systems “comparable” to the “old good standards” Brussels has in the distribution of its traditional structural aid money, the cohesion policy, and the agricultural support.

On numerous occasions, critics have called on the Commission to tighten controls on cohesion and agricultural money, two biggest EU budgets, where they say corruption is rampant, particularly in Central and Eastern Europe.

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Meanwhile, rule of law watchers across academia and civil society continue to question the impact of the report.

“A question hangs in the air: what is the report good for?” asked Jakub Jaraczewski, research coordinator at Berlin-based Democracy Reporting International.

[Edited by Zoran Radosavljevic]

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