Publication Date: October 2024
Research and Editorial Team: The Civil Liberties Union for Europe

According to the Gap Analysis, the European Commission’s Rule of Law Reports fall short of their goal to influence meaningful change in member states. The analysis identifies three key areas that require urgent improvement: transparency and precision to measure progress; effective enforcement of the recommendations and integration of the ARoLC with the EU’s rule of law toolkit. 

The Rule of Law Report is presented as a 'cornerstone' to protect democratic values in the Union. Yet, Liberties' analysis suggests a big difference between what the report should bring about and what it does. The Commission claimed that two-thirds (68%) of the recommendations issued in 2023 have been fully or partially addressed by Member States. However, a more critical analysis reveals that only 19% of these had reached a stage of being either significantly progressed or fully implemented. In half the recommendations, all that Member States did was announce or initiate superficial measures. This suggests a serious lack of political will among member states to implement tangible and meaningful changes. 

The risk is that the Rule of Law Reports will remain limited to a  mere documentation tool: without any follow-up mechanism to its recommendations, it  cannot push Member States into corrective action against rule of law violations. Countries like Hungary and Slovakia have often been criticized for not acting on recommendations. Even stalwarts of EU values such as Germany, France, Austria, and Spain have made very few attempts to address the Commission's concerns.

This rampant impunity erodes the report’s legitimacy. According to the analysis, the Commission risks setting a perilous precedent whereby violations of the rule of law become the norm, allowing illiberal regimes to further increase their hold on power. Liberties argues that the Commission  has somehow emptied this report of any substantive purpose while simultaneously providing fuel to the fire of Euroskeptics like Viktor Orbán, who maintain that the process discriminates unfairly against certain Member States.

In its current form, the report does not carry any enforcement powers. The new Commissioner for Democracy, Justice, and the Rule of Law has the opportunity to provide agency to the report by linking it to already existing enforcement mechanisms, such as infringement proceedings and the  Rule of Law conditionality regulation

Linking follow-up on the recommendations to enforcement measures would give Member States an incentive to take action. Reinforcing the Rule of Law Reports is crucial if it is not to be reduced to an insignificant box-ticking exercise. The mission letter to the new Commissioner, insisting on substantial rule of law reforms, should constitute a good backbone for such changes. As the report enters its sixth year, it is high time that the Commission uses the available tools to strengthen the nature of its recommendations and rebuild trust. To this end, CSOs should be actively involved in the ARoLC to safeguard democratic values and act as reliable public watchdogs.

Tags: Rule of Law Media freedom

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