Commission’s unwarranted optimism about rule of law alarms human rights experts

Brussels – The rule of law continues to cause concern in the European Union, just as the remarks in the European Commission’s Rule of Law 2024 report that “still presents significant shortcomings, despite the Commission’s triumphalist rhetoric,” according to the Civil Liberties Union of Europe (Liberties).

Liberties has analyzed the Commission’s report to highlight the shortcomings in the analysis of the situation of European countries, considering the extensive network of contacts present in eighteen of them.

The Commission claims that “68 percent of the 2023 Rule of Law Report” recommendations were followed up by Member States. Unfortunately, the reality that Liberties shows is of an overly confident Commission about reform announcements or ongoing changes, going ahead and “attributing progress where there is little or none.” The outlook is less rosy, with 19 percent of recommendations actually implemented or followed through. Moreover, when the Commission speaks of ‘significant progress,‘ it does so without a precise definition, resulting in arbitrary attributions or forgetting significant shortcomings in some states. An example reported by Liberties is “the recent legislation passed by the Swedish government violating fundamental rights,” referring to “more stringent criminal measures, including stop-and-search frisk zones, stay-away orders, and the expanded use of secret surveillance measures.”

Recommendations are not implemented (and results difficult to measure)

Specifically, the report highlights the “Need for effective enforcement of the Commission’s recommendations.” In countries where a continued decrease in the overall rule of law has been observed (including Hungary and Poland), the Commission’s recommendations were either completely disregarded or only partially implemented. Furthermore, the beacons of European democracy, such as Austria, France, or Germany, “which do not register a decline in the rule of law in general,” are not cooperative since they tend to pay little heed to the warnings of the institution chaired by von der Leyen.

Another problem noted by human rights observers is that European recommendations are difficult to assess and measure. Therefore, “if they (recommendations, ed.) assign specific tasks to specific actors and set time limits,” they can serve as benchmarks for national reforms and policies. We need to have less “diplomatic considerations” and more severity when there are serious violations, Liberties says.

Lacking enforcement mechanisms

Submitting a rule of law report means having a representation of how the internal situation in states is evolving. However, “it is a monitoring mechanism, not an enforcement tool.”

In addition to having the carrot of nearly 70 percent success (attributed very generously), it is necessary to have a stick. And for that, according to Liberties, “the Commission must integrate the Annual Rule of Law Report into the broader EU rule of law toolkit, including the Article 7 procedure, infringement procedures, and budgetary conditionality.”

Failure to comply with the recommendations should lead to concrete consequences. The proceedings listed are all among the tools to ensure the implementation of EU law. Infringement proceedings are initiated against states if there is a violation of EU law, while budgetary conditionality specifically aims at rule of law violations. The procedure of Article 7 is the suspension clause (also called the “nuclear option “because of its severity), by which EU membership rights can be terminated for a state guilty of serious and persistent violations of EU principles.

The second von der Leyen Commission should have more pulse in coordinating the detection of problems and sanctions to address them. There seems to be more openness to listening to criticism, such as the implementation of sanctions, which is also mentioned in the mission letter to Commissioner-designate for Democracy, Justice and Rule of Law Michael McGrath.

 “It is imperative that the Commission takes swift and decisive action” to have concrete and decisive action for the Union. Awareness campaigns and short-sighted, complacent observation of the (few) successes are not enough: the EU needs to change and prevent member states from finding loopholes not to solve problems with the rule of law and, as a consequence, with respect for the founding values of the European Union. “The rule of law is being systematically dismantled by some governments, and the next commission needs to do better,” Viktor Kazai, a rule of law expert at Liberties, told the Guardian. “It has been 14 years since the beginning of the rule of law crisis. We cannot wait: what happened in Hungary cannot happen in Slovakia,” he warned.